State v. Osborne , 261 N.C. App. 710 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-9
Filed: 2 October 2018
Randolph County, No. 14 CRS 55829
STATE OF NORTH CAROLINA
v.
SHELLEY ANNE OSBORNE
Appeal by defendant from judgments entered 21 February 2018 by Judge
Edwin G. Wilson Jr. in Randolph County Superior Court. Heard in the Court of
Appeals 20 August 2018.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Alesia
Balshakova, for the State.
Meghan Adelle Jones for defendant.
DIETZ, Judge.
Defendant Shelley Anne Osborne appeals her conviction for possession of
heroin. Law enforcement found Osborne unconscious in a hotel room and, after
emergency responders revived her, she admitted she used heroin. Officers searched
the hotel room and found syringes, spoons with burn marks and residue, and a rock-
like substance.
The State did not have the substance tested using a scientifically valid
chemical analysis. Instead, at trial the State relied on Osborne’s statement to officers
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Opinion of the Court
that she used heroin, as well as officers’ descriptions of the rock-like substance and
the results of field tests on the substance, including one performed in open court.
As explained below, the State’s evidence was insufficient to survive a motion
to dismiss. The State relies on a series of Supreme Court cases, later synthesized in
this Court’s decision in State v. Bridges, __ N.C. App. __, 810 S.E.2d 365 (2018),
concerning the defendant’s own identification of the seized substance. Here, by
contrast, Osborne never identified the seized substance as heroin—she told officers
only that she had used heroin before losing consciousness. Although the State’s
evidence strongly suggests the seized substance was heroin, that evidence was not
enough “to establish the identity of the controlled substance beyond a reasonable
doubt” and thus the State was required to present “some form of scientifically valid
chemical analysis” to survive a motion to dismiss. State v. Ward, 364 N.C. 133, 147,
694 S.E.2d 738, 747 (2010). Because the State acknowledges that it did not present
any scientifically valid chemical analysis at trial, we vacate the trial court’s judgment
on this count.
Facts and Procedural History
On 17 November 2014, police responded to a call about a possible overdose in
a hotel room. After arriving at the hotel room, officers found Defendant Shelley Anne
Osborne in the bathroom. She was unconscious, unresponsive, and turning blue.
Osborne regained consciousness after emergency responders arrived and
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administered an anti-overdose drug. When Osborne regained consciousness, she told
an officer that she “had ingested heroin.”
The responding officers searched the hotel room and found Osborne’s two
children, who were around four or five years old. The officers also found multiple
syringes, spoons with burn marks and residue on them, and a rock-like substance
that appeared to be heroin. An officer conducted a field test on the rock-like
substance, which yielded a “bluish color,” indicating a “positive reading for heroin.”
On 14 September 2015, the State indicted Osborne for possession of heroin and
two counts of misdemeanor child abuse. At trial, one of the responding officers
testified about discovering Osborne unconscious in the hotel room and her admission
that she had used heroin. The officer also described the rock-like substance, including
how it resembled heroin; explained the results of the field test indicating the
substance was heroin; and discussed how other objects found in the hotel room,
including the syringes and spoons, were common paraphernalia used to inject heroin.
The officer also performed a field test on the substance seized from the hotel room in
open court and displayed the results, which indicated the substance was heroin, to
the jury. Osborne did not object to the in-court field test. Osborne also did not present
any evidence in her defense. She moved to dismiss the charges at the close of the
evidence. The trial court denied the motion.
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The jury convicted Osborne on all charges, and the trial court sentenced her to
6 to 17 months in prison for possession of heroin and a consecutive sentence of 60
days for the two counts of misdemeanor child abuse. The trial court suspended both
sentences. Osborne appealed.
Analysis
Osborne argues that the trial court erred in denying her motion to dismiss the
possession of heroin charge because the State failed to present sufficient evidence
that the seized substance was heroin. As explained below, we agree that the evidence
presented was insufficient but recognize that this issue is unsettled and may merit
further review in our Supreme Court.
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). “Upon defendant’s
motion for dismissal, the question for the Court is 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 of such offense. If so,
the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451,
455 (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).
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In a drug possession case, “the burden is on the State to establish the identity
of any alleged controlled substance that is the basis of the prosecution.” State v. Ward,
364 N.C. 133, 147, 694 S.E.2d 738, 747 (2010). “Unless the State establishes before
the trial court that another method of identification is sufficient to establish the
identity of the controlled substance beyond a reasonable doubt, some form of
scientifically valid chemical analysis is required.” Id.
The State concedes that, other than the field tests conducted by the arresting
officers, the State did not conduct any forensic analysis that identified the rock-like
substance seized from Osborne’s hotel room as heroin. The State also concedes—or,
at least, does not dispute—that the field tests officers conducted at the scene and
later at trial are not scientifically valid chemical analyses sufficient to support a
conviction.
Instead, the State argues that this case is controlled by a line of decisions from
our Supreme Court involving the defendant’s identification of the controlled
substance. First, in State v. Nabors, 365 N.C. 306, 718 S.E.2d 623 (2011), and State
v. Williams, 367 N.C. 64, 744 S.E.2d 125 (2013), the Supreme Court held that a
defense witness’s in-court testimony identifying a substance as cocaine was sufficient
to overcome a motion to dismiss even in the absence of forensic analysis. Then, in
State v. Ortiz-Zape, 367 N.C. 1, 743 S.E.2d 156 (2013), the Supreme Court held that
an officer’s testimony concerning the defendant’s out-of-court identification of the
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substance as cocaine, combined with the officer’s own testimony that the substance
appeared to be cocaine, was sufficient to survive a motion to dismiss.
Recently, this Court attempted to synthesize this line of cases into a coherent
rule of law. State v. Bridges, __ N.C. App. __, 810 S.E.2d 365 (2018). In Bridges, the
defendant told a law enforcement officer that she had “a bagg[ie] of meth hidden in
her bra,” and the officer then found a “meth-like” substance in a baggie in the
defendant’s bra. Id. at __, 810 S.E.2d at 366. At trial, the officer described the
defendant’s statements and the discovery of the baggie. Id. We held that “the
arresting officer’s testimony offered without objection during the State’s evidence”
was sufficient to meet the State’s burden of proof and send the issue to the jury. Id.
at __, 810 S.E.2d at 367–68.
The State argues that this case is controlled by Bridges but there is a key
factual distinction between this case and the Bridges line of cases. In all of the earlier
cases—Nabors, Williams, Ortiz-Zape, and Bridges—the defendants’ statements (or
those of another defense witness) identified the substance seized by law enforcement
as a controlled substance. Here, by contrast, Osborne did not identify the seized
substance as heroin. Instead, after officers discovered her unconscious in a hotel room
and emergency responders administered an anti-overdose medication to revive her,
Osborne told the officers that she had ingested heroin. The officers independently
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searched the hotel room and recovered drug paraphernalia and a rock-like substance
believed to be heroin.
We are reluctant to further expand the Bridges holding to apply in cases where
the defendant did not actually identify the seized substance. To be sure, the State’s
evidence strongly suggests the seized substance was heroin—Osborne admitted she
used heroin, there was drug paraphernalia in the hotel room consistent with heroin
use, the rock-like substance found in the hotel room matched the general description
of heroin, and a field test indicated the substance was heroin.
But the question is not whether the State’s evidence was strong, but whether
that evidence “establish[ed] the identity of the controlled substance beyond a
reasonable doubt,” thus eliminating the need for a scientifically valid chemical
analysis. Ward, 364 N.C. at 147, 694 S.E.2d at 747. We are unwilling to hold that it
does. After all, there are other controlled substances that appear as a white or gray
rock-like substance. See, e.g., Nabors, 365 N.C. at 308, 718 S.E.2d at 624; State v.
Hicks, 243 N.C. App. 628, 630, 777 S.E.2d 341, 343 (2015); State v. Mobley, 206 N.C.
App. 285, 292, 696 S.E.2d 862, 867 (2010); State v. McNeil, 165 N.C. App. 777, 779,
600 S.E.2d 31, 33 (2004), aff’d, 359 N.C. 800, 617 S.E.2d 271 (2005). And the drug
paraphernalia seized from the hotel room can be used in connection with other
controlled substances. See, e.g., State v. Wiggins, 185 N.C. App. 376, 380, 648 S.E.2d
865, 869 (2007); State v. Muncy, 79 N.C. App. 356, 358, 339 S.E.2d 466, 468 (1986).
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Simply put, if we held that the State’s evidence in this case was sufficient to
show the seized substance was heroin “beyond a reasonable doubt,” it likely would
eliminate the need for scientifically valid chemical analysis in many—perhaps most—
drug cases. This, in turn, would render our Supreme Court’s holding in Ward largely
irrelevant. This Court has no authority to undermine a Supreme Court holding in
that way. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). If the
Bridges line of cases warrants further expansion—and further eroding of Ward—that
change in the law must come from the Supreme Court.
Applying Ward here, the State’s evidence did not establish beyond a reasonable
doubt that the seized substance was heroin. 364 N.C. at 147, 694 S.E.2d at 747. Thus,
the State was required to present scientifically valid chemical analysis identifying
the seized substance as heroin. Id. The State concedes it did not do so. Accordingly,
the trial court should have granted Osborne’s motion to dismiss for insufficient
evidence.
Because we rule in Osborne’s favor on this issue, we need not address her
remaining arguments concerning her conviction on the drug possession charge.
Osborne also challenges her convictions for misdemeanor child abuse on the ground
that “the indictments for misdemeanor child abuse allege that Ms. Osborne used
‘heroin in the presence of the child.’” Osborne argues that the State was required to
prove the seized substance was heroin to support these charges as well. We disagree.
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Unlike the drug possession charge, the misdemeanor child abuse charges did not
require the State to present a chemical analysis proving the seized substance was
heroin. The State’s evidence, including the officers’ discovery of Osborne unconscious
from an apparent drug overdose; Osborne’s admission that she used heroin; and the
presence of drug paraphernalia consistent with heroin use in the hotel room occupied
by Osborne and her children was sufficient to send these charges to the jury.
Likewise, in light of the State’s other evidence, the admission of the in-court field test
of the seized substance—even if erroneous—was harmless and certainly did not rise
to the level of plain error. State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334
(2012). We therefore find no error in the trial court’s judgment on the misdemeanor
child abuse charges.
Conclusion
For the reasons discussed above, we vacate the trial court’s judgment on the
possession of heroin charge and find no error in the trial court’s judgment on the
misdemeanor child abuse charges.
VACATED IN PART; NO ERROR IN PART.
Chief Judge McGEE and Judge CALABRIA concur.
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