State v. Coley ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-470
Filed: 6 February 2018
Nash County, No. 15 CRS 52120
STATE OF NORTH CAROLINA
v.
ROBERT LINDSEY COLEY, JR.
Appeal by defendant from judgment entered 12 September 2016 by Judge
Quentin T. Sumner in Nash County Superior Court. Heard in the Court of Appeals
2 November 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Laura H.
McHenry and Assistant Attorney General Kristen Jo Uicker, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Wyatt
Orsbon, for defendant-appellant.
DAVIS, Judge.
In this appeal, we once again address the quantum of proof necessary for a
defendant to be lawfully convicted of possession with intent to sell or deliver
marijuana. The evidence at trial established that the defendant’s vehicle contained
11.5 grams of marijuana packaged in two sandwich bags, a digital scale, and 23 other
loose sandwich bags. Because we conclude that the evidence — when viewed in the
light most favorable to the State — was sufficient for a reasonable juror to have found
him guilty of this offense, we affirm the defendant’s convictions.
STATE V. COLEY
Opinion of the Court
Factual and Procedural Background
The State introduced evidence at trial tending to establish the following facts:
On 29 May 2015, Officer Miles Costa of the Nashville Police Department was driving
his patrol vehicle on the east side of Nashville, North Carolina when he noticed
expired tags on a car being driven by Robert Lindsey Coley, Jr. (“Defendant”). After
verifying that the vehicle’s registration was expired, Officer Costa pulled over
Defendant’s car and approached the driver’s side.
Defendant told Officer Costa that he did not have his driver’s license with him
and that he could not find his registration card. While speaking to Defendant, Officer
Costa smelled the odor of marijuana and asked him to exit the vehicle. Officer Costa
then asked Defendant if he had any marijuana in the car, and Defendant responded
that there was some in the glove compartment. Defendant was placed in handcuffs
while Officer Costa conducted a search of the vehicle. He found a sandwich bag
containing 8.6 grams of marijuana in the glove compartment. Upon returning to his
patrol vehicle to weigh the marijuana, Officer Costa was informed by Defendant that
there was also a digital scale in the center console of the car.
By this time, another officer had arrived on the scene, and the two officers
searched the vehicle together. They found a digital scale, another sandwich bag
containing 2.9 grams of marijuana, and two partially smoked marijuana cigars in the
center console. Thirteen Dutch Masters cigar wrappers, along with one unopened
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Opinion of the Court
package of cigars, were discovered elsewhere in the car. The officers found a box of
sandwich bags in the backseat that had been opened along with 23 loose sandwich
bags strewn throughout the vehicle.
Defendant also had over $800 in cash on his person. He informed the officers
that he had just cashed his paycheck, and Officer Costa found a pay stub in the
vehicle.
Defendant told the officers that he kept the scale in his car to ensure that he
actually received from his sellers the precise amount of marijuana that he had
purchased so as to avoid being “ripped off.” He further stated that the sandwich bags
were in his vehicle because “his drug dealers were cheap and . . . [h]e had to provide
his own bags.”
Defendant was indicted by a Nash County grand jury on 5 October 2015 on the
charges of possession with intent to sell and deliver marijuana and possession of
marijuana paraphernalia. A jury trial was held beginning on 29 August 2016 before
the Honorable Quentin T. Sumner.
Officer Costa testified on direct examination, in pertinent part, as follows:
[PROSECUTOR]: Now, I want to talk about your
law enforcement experience and training. You testified
that this substance was marijuana. Have you had any
particular training in the identification of marijuana?
[OFFICER COSTA]: Yes, ma’am.
[PROSECUTOR]: Please explain that training for
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Opinion of the Court
us.
[OFFICER COSTA]: We -- we go through a -- we go
to a control room, controlled area, controlled classroom and
marijuana’s presented to us in big amounts, small
amounts. And the smell, we’re allowed to smell it. We’re
allowed to touch it. We’re allowed to feel it. Everything
like that.
....
[PROSECUTOR]: . . . Are you familiar with how
marijuana is commonly sold?
[OFFICER COSTA]: Yes, ma’am.
[PROSECUTOR]: Tell me about that.
[OFFICER COSTA]: Marijuana is, majority of the
time, commonly sold in your nickel bags or your dime bags.
[PROSECUTOR]: Tell me what exactly is a nickel
bag?
[OFFICER COSTA]: A nickel bag is .5 grams of
marijuana. Usually costs, depending on the grade of
marijuana, $5. A dime bag would be $10 and that is a --
that’s one gram of marijuana.
[PROSECUTOR]: And in selling those quantities,
how are they typically packaged? Or how is the marijuana
typically packaged?
[OFFICER COSTA]: They’re packaged in a
sandwich bag.
....
[PROSECUTOR]: Tell me why you chose to charge
the Defendant with possession with intent to sell or deliver
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Opinion of the Court
versus just possessing the marijuana?
[OFFICER COSTA]: Yes, ma’am; the -- with the
amount of marijuana and the two individual bags,
normally if somebody is going to have a large amount of
marijuana, they’re going to have it one [sic] bag. The two
- - two separate bags, the amount of marijuana, the
sandwich bags all over the vehicle, the drug scale[.]
....
[PROSECUTOR]: Now, you said that you took the
amount, the way it was divided and packaged and the
sandwich bags and the scale as factors that went towards
your charging. Now, [Defendant] offered an explanation
that [Defendant’s counsel] has presented to the jury. Was
that explanation not sufficient enough to deter you from
charging the possession with intent to sell or deliver?
[OFFICER COSTA]: Yes, ma’am. The explanation
did not make any sense to me. I’ve never heard it before
coming from anybody else. Normally, people who have
marijuana inside of the vehicle do not have several
sandwich bags inside of the vehicle.
At the close of the State’s evidence, Defendant moved to dismiss the charge of
possession of marijuana with intent to sell or deliver based on insufficiency of the
evidence. The trial court denied his motion.
During Defendant’s case-in-chief, the following exchange occurred between
Defendant and his attorney:
[DEFENDANT’S COUNSEL]: What’s the deal with
the sandwich bags?
[DEFENDANT]: The dealers who I was dealing
with they just wouldn’t have them, they wouldn’t supply
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Opinion of the Court
them. They would say they don’t want to risk having them
and stuff like that. They just wouldn’t have them, so I
would use it to what I would pick a week [sic] to put them
into the bag.
....
[DEFENDANT’S COUNSEL]: Now, why did you
have -- also found in your car was a scale. Why did you
have the scale?
[DEFENDANT]: To make sure I was getting what I
was purchasing. I mean, people that I’m dealing with, it’s
not like it’s a pre-packaged product where I’m going to
know exactly what I’m getting is what they’re telling me.
So I would check it to make sure that it is what they say it
is, the amount wise.
....
[DEFENDANT’S COUNSEL]: Why did you have
two bags?
[DEFENDANT]: One of them I actually had
forgotten about. . . .
[DEFENDANT’S COUNSEL]: Why -- how did you
forget about a bag of marijuana?
[DEFENDANT]: It just wasn’t good quality and I
ended up buying something else and I guess I just forgot it
was in there.
Defendant renewed his motion to dismiss at the close of all the evidence, and
the trial court once again denied his motion. On 30 August 2016, the jury convicted
him of both charges. The trial court consolidated the convictions and sentenced
Defendant to a term of imprisonment between 6 and 17 months, suspended the
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sentence, and placed him on supervised probation for 18 months. Defendant gave
oral notice of appeal in open court prior to the entry of the judgment.
Analysis
I. Appellate Jurisdiction
As an initial matter, we must determine whether we possess jurisdiction over
this appeal. Rule 4(a) of the North Carolina Rules of Appellate Procedure states, in
pertinent part, as follows:
(a) Manner and time. Any party entitled by law to
appeal from a judgment or order of a superior or district
court rendered in a criminal action may take appeal by:
(1) giving oral notice of appeal at trial . . . .
N.C. R. App. P. 4(a).
Here, Defendant gave oral notice of appeal in open court after the jury returned
its verdict but prior to the entry of judgment by the trial court. Thus, because he did
not give notice of his appeal following entry of the judgment, his right to appeal has
been lost based on his failure to comply with Rule 4(a). See State v. Robinson, 236
N.C. App. 446, 448, 763 S.E.2d 178, 179 (2014) (right of appeal lost where Defendant
“gave notice of appeal in open court following the jury’s verdict, but failed to give
notice of appeal following entry of the trial court’s final judgment”), aff’d as modified,
368 N.C. 402, 777 S.E.2d 755 (2015).
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Opinion of the Court
Defendant has filed a petition for writ of certiorari requesting appellate review
of his convictions in the event that his notice of appeal is deemed by this Court to be
defective. Pursuant to Rule 21(a)(1) of the Appellate Rules, this Court may, in its
discretion, grant a petition for writ of certiorari and review an order or judgment
entered by the trial court “when the right to prosecute an appeal has been lost by
failure to take timely action. . . .” N.C. R. App. P. 21(a)(1).
Here, the State does not contend that it was misled by Defendant's defective
notice of appeal and acknowledges that it is within this Court's discretion to allow
the petition. See State v. Springle, __ N.C. App. __, __, 781 S.E.2d 518, 521 (2016)
(“[A] defect in a notice of appeal should not result in loss of the appeal as long as the
intent to appeal can be fairly inferred from the notice and the appellee is not misled
by the mistake.” (quotation marks, ellipsis, and citation omitted)).
In our discretion, we elect to grant Defendant's petition for writ of certiorari
and proceed to address the merits of his argument. See Robinson, 236 N.C. App. at
448, 763 S.E.2d at 180 (granting defendant’s petition for certiorari where oral notice
of appeal was given after jury verdict but prior to entry of judgment).
II. Denial of Motion to Dismiss
Defendant’s sole argument on appeal is that the trial court erred in denying
his motion to dismiss the possession with intent to sell or deliver marijuana charge.
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Opinion of the Court
His primary contention is that the quantity of marijuana found in his vehicle was too
small to allow this charge to be submitted to the jury.
“A trial court’s denial of a defendant’s motion to dismiss is reviewed de novo.”
State v. Watkins, __ N.C. App. __, __, 785 S.E.2d 175, 177 (citation omitted), disc.
review denied, 369 N.C. 40, 792 S.E.2d 508 (2016). On appeal, this Court must
determine “whether there is substantial evidence (1) of each essential element of the
offense charged, or of a lesser offense included therein, and (2) of defendant’s being
the perpetrator[.]” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (citation
omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).
Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265
S.E.2d 164, 169 (1980). Evidence must be viewed in the light most favorable to the
State with every reasonable inference drawn in the State’s favor. State v. Rose, 339
N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d
818 (1995). “Contradictions and discrepancies are for the jury to resolve and do not
warrant dismissal.” Smith, 300 N.C. at 78, 265 S.E.2d at 169.
Pursuant to N.C. Gen. Stat. § 90-95, “the offense of possession with intent to
sell or deliver has three elements: (1) possession; (2) of a controlled substance; with
(3) the intent to sell or deliver that controlled substance.” State v. Blakney, 233 N.C.
App. 516, 519, 756 S.E.2d 844, 846 (citation omitted), disc. review denied, 367 N.C.
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522, 762 S.E.2d 204 (2014). We have held that while “intent to sell or deliver may be
shown by direct evidence, it is often proven by circumstantial evidence from which it
may be inferred.” State v. Wilkins, 208 N.C. App. 729, 731, 703 S.E.2d 807, 809 (2010)
(brackets, quotation marks, and citation omitted). Such intent “may be inferred from
(1) the packaging, labeling, and storage of the controlled substance, (2) the
defendant’s activities, (3) the quantity found, and (4) the presence of cash or drug
paraphernalia.” State v. Nettles, 170 N.C. App. 100, 106, 612 S.E.2d 172, 176 (citation
omitted), disc. review denied, 359 N.C. 640, 617 S.E.2d 286 (2005). Although the
“quantity of the controlled substance alone may suffice to support the inference of an
intent to transfer, sell, or deliver, it must be a substantial amount.” Wilkins, 208
N.C. App. at 731, 703 S.E.2d at 810 (quotation marks and citation omitted).
It is instructive to examine prior cases from our appellate courts on this issue.
In Blakney, the defendant’s vehicle contained 84.8 grams of marijuana packaged in a
number of containers, including “two sandwich bags, four ‘dime bags,’ and five other
types of bags.” Blakney, 233 N.C. App. at 520, 756 S.E.2d at 847. Additionally, a box
of sandwich bags, a digital scale, and a “large amount of cash” were discovered in the
car. Id. at 517, 756 S.E.2d at 845. We held that the evidence was sufficient to survive
a motion to dismiss, concluding as follows:
[T]he manner in which the marijuana was packaged (such
as four “dime bags”) raised more than an inference that
defendant intended to sell or deliver the marijuana.
Further, the presence of items commonly used in
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packaging and weighing drugs for sale — a box of sandwich
bags and [a] digital scale[ ] — along with a large quantity
of cash in small denominations provided additional
evidence that defendant intended to sell or deliver
marijuana, as opposed to merely possessing it for his own
personal use[.]
Id. at 520, 756 S.E.2d at 847.
State v. Williams, 71 N.C. App. 136, 321 S.E.2d 561 (1984), involved 27.6 grams
of marijuana recovered from the defendant’s jacket. Id. at 139, 321 S.E.2d at 564.
The marijuana “was packaged in seventeen separate, small brown envelopes known
in street terminology as ‘nickel or dime bags.’” Id. at 140, 321 S.E.2d at 564. The
defendant in that case argued that the amount of marijuana at issue was too small
to raise an inference that he intended to sell or deliver the drugs. Id. at 139, 321
S.E.2d at 564. In ruling that the evidence was sufficient to survive a motion to
dismiss, we stated that the “[d]efendant’s argument would be persuasive except for
the evidence of how the 27.6 grams of marijuana was packaged.” Id. at 139-40, 321
S.E.2d at 564.
Similarly, in State v. Yisrael, __ N.C. App. __, 804 S.E.2d 742 (2017), we held
that sufficient evidence supported a possession with intent to sell or deliver charge
where the defendant possessed a total of 10.88 grams of marijuana packaged in three
separate baggies — one “dime bag” and two larger bags. Id. at __, 804 S.E.2d at 743.
The defendant in Yisrael was also carrying $1,504 and in possession of a stolen
handgun. Id. at __, 804 S.E.2d at 745-46.
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Opinion of the Court
We determined that “[t]his quantity of illegal drugs and its packaging . . . ; the
large amount of unsourced cash on [the defendant’s] person; and the stolen and
loaded handgun [are] sufficient to support a reasonable inference that [the defendant]
intended to sell or deliver the marijuana he admittedly possessed . . . .” Id. at __, 804
S.E.2d at 747; see also State v. Baxter, 285 N.C. 735, 738, 208 S.E.2d 696, 698 (1974)
(holding that “[t]he jury could reasonably infer an intent to distribute from the
amount of the substance found, the manner in which it was packaged and the
presence of other packaging materials” where 219 grams of marijuana were packaged
in 16 small envelopes and 28 empty envelopes were found nearby).
Conversely, in Wilkins and Nettles we held that small quantities of drugs
unaccompanied by evidence that the substances were packaged for sale were
insufficient to raise an inference of intent to sell or deliver. The defendant in Wilkins
possessed 1.89 grams of marijuana contained in three small bags and $1,264 in cash.
Wilkins, 208 N.C. App. at 730, 703 S.E.2d at 809. Regarding the packaging, this
Court stated that “[w]hile small bags may typically be used to package marijuana, it
is just as likely that defendant was a consumer who purchased the drugs in that
particular packaging from a dealer.” Id. at 732, 703 S.E.2d at 810. We concluded as
follows:
Had defendant possessed more than 1.89 grams of
marijuana, or had there been additional circumstances to
consider, we may have reached a different conclusion;
however, given the fact that neither the amount of
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Opinion of the Court
marijuana nor the packaging raises an inference that
defendant intended to sell the drugs, the presence of the
cash as the only additional factor is insufficient to raise the
inference.
Id. at 733, 703 S.E.2d at 810 (citation omitted).
Nettles involved the discovery of four to five crack cocaine rocks weighing 1.2
grams in the defendant’s vehicle. Nettles, 170 N.C. App. at 105, 612 S.E.2d at 175.
The police also seized a safety pin from the defendant’s living room. Id. at 102, 612
S.E.2d at 173. Although “officers testified that a safety pin typically is utilized by
crack users to clean a crack pipe, there were no other drugs or drug paraphernalia
typically used in the sale of drugs found on the premises.” Id. at 107, 612 S.E.2d at
177. In ruling that there was insufficient evidence of an intent to sell or deliver, we
noted the absence of any testimony “that the drugs were packaged, stored, or labeled
in a manner consistent with the sale of drugs.” Id. at 107, 612 S.E.2d at 176.
Ultimately, we concluded that even “[v]iewed in the light most favorable to the State,
the evidence tends to indicate defendant was a drug user, not a drug seller.” Id. at
107, 612 S.E.2d at 177.
Thus, in ruling upon the sufficiency of evidence in cases involving the charge
of possession with intent to sell or deliver, our courts have placed particular emphasis
on the amount of drugs discovered, their method of packaging, and the presence of
paraphernalia typically used to package drugs for sale. Moreover, our case law
demonstrates that this is a fact-specific inquiry in which the totality of the
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Opinion of the Court
circumstances in each case must be considered unless the quantity of drugs found is
so substantial that this factor — by itself — supports an inference of possession with
intent to sell or deliver. With these principles in mind, we now turn to the evidence
in the present case.
As noted above, Defendant’s vehicle contained a total of 11.5 grams of
marijuana contained in two sandwich bags. Additionally, a digital scale and an open
box of sandwich bags were found along with 23 loose sandwich bags. Viewed in
isolation, the relatively small quantity of marijuana discovered in the vehicle would
not be enough to support an inference that Defendant possessed the drugs with the
intent to sell or deliver. See State v. Wiggins, 33 N.C. App. 291, 294, 235 S.E.2d 265,
268 (holding that discovery of 215.5 grams of marijuana was, by itself, insufficient to
survive a motion to dismiss), cert. denied, 293 N.C. 592, 241 S.E.2d 513 (1977).
However, given the additional presence of the digital scale and the large number of
sandwich bags found in Defendant’s vehicle, we are satisfied that the State’s evidence
was sufficient to create a question for the jury. Despite Defendant’s testimony that
he only utilized the scale and sandwich bags in connection with his own personal
marijuana use, a rational jury could have found his explanation to lack credibility.
Even assuming that this case can be characterized as a close one, we have held
that “[i]n borderline or close cases, our courts have consistently expressed a
preference for submitting issues to the jury.” Yisrael, __ N.C. App. at __, 804 S.E.2d
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Opinion of the Court
at 747 (brackets, quotation marks, and citation omitted). Accordingly, we hold that
the trial court did not err in denying Defendant’s motion to dismiss.
Conclusion
For the reasons stated above, we conclude that Defendant received a fair trial
free from error.
NO ERROR.
Judges ZACHARY and BERGER concur.
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