State v. Teague ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-600
No. COA21-10
Filed 1 November 2022
Wake County, Nos. 18 CRS 205570–71, 205588
STATE OF NORTH CAROLINA
v.
JOSEPH EDWARDS TEAGUE, III
Appeal by defendant from judgments entered 31 January 2020 by Judge
Thomas H. Lock in Wake County Superior Court. Heard in the Court of Appeals 1
December 2021.
Attorney General Joshua H. Stein, by Assistant Attorney General Kristin J.
Uicker, for the State.
Hynson Law, PLLC, by Warren D. Hynson, for defendant-appellant.
ZACHARY, Judge.
¶1 Defendant Joseph Edwards Teague, III, appeals from judgments entered upon
a jury’s verdicts finding him guilty of conspiracy to traffic marijuana by
transportation, possession with intent to sell or deliver marijuana, felony possession
of marijuana, felony keeping or maintaining a storage unit for keeping or selling
controlled substances, felony keeping or maintaining a dwelling for keeping or selling
controlled substances, and possession with intent to sell or deliver delta-9-
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tetrahydrocannabinol (“THC”). After careful review, we affirm the trial court’s denial
of Defendant’s motion to suppress, and conclude that Defendant received a trial free
from prejudicial error.
I. Background
¶2 On 21 March 2018, Investigator Selburn Menzie of the Wake County Sheriff’s
Office High-Intensity Drug Trafficking Areas (“HIDTA”) Task Force was working at
a FedEx facility as part of his routine parcel interdiction duty. On the conveyor belt,
he observed a package (the “target package”) with “all the seams . . . taped,” which he
later testified was “one of many indicators” that a parcel may contain illegal drugs.
The target package named “Marcus Rawls” as its sender and “Joe Teague” as its
intended recipient. The shipping label indicated that the target package had been
shipped from California and listed “(888) 888 8888” as the telephone number for the
addressee, “Joe Teague” in Raleigh, North Carolina. In his experience and training
as a member of the HIDTA Task Force, Investigator Menzie recognized these as
additional indicators of possible drug smuggling.
¶3 Investigator Menzie removed the target package from the belt and ran the
sender and recipient information from the shipping label through two law
enforcement databases. From these databases, Investigator Menzie determined that
the phone number given for the target package’s sender “Marcus Rawls” did not
match the phone number for the listed shipping address, and he confirmed that the
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“(888) 888 8888” phone number provided for its recipient “Joe Teague” did not exist.
Investigator Menzie also noticed that the target package had been sent from a
different location than its listed shipping address. Investigator Menzie then placed
the target package in a line with “four or five” other similar parcels. His partner,
Officer James Smith, was already on the scene with his certified narcotics detector
dog, Hydro. At Officer Smith’s command, Hydro conducted a drug sniff of the
packages. Hydro alerted to the target package.
¶4 Investigator Menzie removed the target package from the FedEx facility and
obtained a search warrant for it. Investigator Menzie, Officer Smith, and other law
enforcement officers then opened the target package at the interdiction unit office.
Inside the target package, the officers found approximately 15 yellow envelopes, each
containing vacuum-sealed bags of a green, leafy substance that they recognized as
marijuana; inside one of the bags, they also discovered what appeared to be a GPS
tracking device. After weighing and photographing the contents of each bag, the
officers determined that the target package contained approximately 15 pounds of
the green, leafy substance that they recognized as marijuana.
¶5 Investigator Menzie then drove to the address listed on the target package’s
shipping label, where he saw people (including one later identified as Defendant) in
the driveway. While surveilling the recipient’s address, Investigator Menzie observed
that there was a self-storage facility approximately two miles away. He later testified
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that the proximity of this facility was noteworthy to him “[b]ecause a storage unit is
commonly used by individuals who [are] dealing with large amounts of illegal
substance to store away sometimes from their residence, sometimes just to
disassociate themselves from the residence that they’re actually living in.”
¶6 Later that day, a FedEx employee informed Investigator Menzie that a man
identifying himself as “Marcus” had called FedEx to inquire about the status of the
target package, and that he left a phone number at which to contact him with further
information. Investigator Menzie called Marcus, who confirmed the tracking number
of the target package, its shipping address, and the name of its intended recipient. At
that point, Investigator Menzie identified himself as a law enforcement officer;
Marcus reacted with surprise, cussed, and abruptly ended the call.
¶7 The next day, on 22 March 2018, Investigator Menzie, Officer Smith, and
Sergeant Daniel Wright investigated the self-storage facility near the intended
recipient’s address. Officer Smith took Hydro to a row of storage units that were “out
of sight[,]” and Hydro alerted to a particular unit. Investigator Menzie left to obtain
a search warrant for the unit. Before Investigator Menzie returned, Defendant
arrived and approached the unit with a bag in his hand. Sergeant Wright intercepted
Defendant and patted him down.
¶8 When Defendant placed the bag on the back of his car, Sergeant Wright
observed a substance inside of the bag that he recognized, from his training and
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experience, as “marijuana wax.” Sergeant Wright handcuffed Defendant, and they
waited for Investigator Menzie to return with the search warrant. After Investigator
Menzie returned and read the search warrant to Defendant, the officers opened the
storage unit with the use of a key provided by Defendant. Inside, the officers found a
box containing more vacuum-sealed bags of what appeared to be the same green, leafy
substance that they recognized as marijuana, and a suitcase containing several clear
jars of a brown substance that Sergeant Wright later testified was “commonly
referred to as shatter . . . . [I]t’s cooked-down marijuana. It’s highly concentrated
THC.”
¶9 Investigator Menzie then obtained a document search warrant for Defendant’s
residence, which matched the address for the intended recipient of the target
package. Law enforcement officers executed the search warrant that same day and
discovered items that they believed to be drugs and drug paraphernalia. At that point,
the officers temporarily halted the search until they obtained a drug search warrant;
then, the search resumed. Inside a padlocked bedroom, officers discovered empty
vacuum-sealed bags in a dresser drawer; a butane gas canister used to manufacture
marijuana wax; a digital scale hidden behind a television; a bong; an e-cigarette with
cartridges containing a brown liquid; and glass jars similar to those found in the
search of Defendant’s storage unit.
¶ 10 On 5 June 2018, a Wake County grand jury returned indictments charging
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Defendant with two counts of conspiracy to traffic marijuana (one charge by
transportation and one by possession); two counts of possession with intent to sell or
deliver marijuana; one count of possession with intent to sell or deliver THC; two
counts of possession of marijuana; one count of maintaining a storage unit for
purposes of keeping or selling controlled substances; and one count of maintaining a
dwelling for purposes of keeping or selling controlled substances.
¶ 11 On 19 November 2018, Defendant moved to suppress “evidence obtained as the
result of an unconstitutional seizure of the [target package] addressed to . . .
Defendant, the unconstitutional search, seizure, and interrogation of [Defendant],
and the unconstitutional search and seizure of [Defendant]’s storage locker and
residence.” On 27 January 2020, Defendant’s motion came on for hearing in Wake
County Superior Court. After considering the motion and arguments of counsel, the
trial court denied Defendant’s motion from the bench. No written order was entered.
¶ 12 At the close of the State’s evidence, Defendant moved to dismiss all charges
against him, which the trial court denied. Defendant renewed his motion to dismiss
at the close of all evidence, which the trial court again denied. The State then
voluntarily dismissed the charge of conspiracy to traffic marijuana by possession.
During the charge conference, the trial court sua sponte dismissed one count of
possession with intent to sell or deliver marijuana and one count of felony possession
of marijuana.
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¶ 13 On 31 January 2020, the jury returned its verdicts finding Defendant guilty of
the remaining charges. The trial court sentenced Defendant to an active term of 25–
39 months in the custody of the North Carolina Division of Adult Correction for
conspiracy to traffic marijuana by transportation. The trial court then consolidated
the remaining convictions into three judgments, sentenced Defendant to three
consecutive terms of 5–15 months in the custody of the North Carolina Division of
Adult Correction, then suspended these sentences and ordered that Defendant be
placed on supervised probation for a period of 24 months following his release from
incarceration. Defendant gave oral notice of appeal in open court.
II. Discussion
¶ 14 On appeal, Defendant raises several constitutional issues concerning the
investigation of the target package. Defendant argues that the trial court erred by
denying his motion to suppress because law enforcement officers lacked either
probable cause or reasonable suspicion to support (1) the initial removal of the target
package from the conveyor belt at the FedEx facility and (2) the temporary retention
of the target package to effectuate a drug dog sniff.
¶ 15 Defendant then makes several arguments that arise from our General
Assembly’s legalization of industrial hemp. See An Act to Recognize the Importance
and Legitimacy of Industrial Hemp Research, to Provide for Compliance with
Portions of the Federal Agricultural Act of 2014, and to Promote Increased
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Agricultural Employment, S.L. 2015-299, 2015 N.C. Sess. Laws 1483. The Industrial
Hemp Act “legalized the cultivation, processing, and sale of industrial hemp within
the state, subject to the oversight of the North Carolina Industrial Hemp
Commission.” State v. Parker, 277 N.C. App. 531, 2021-NCCOA-217, ¶ 27, disc. review
denied, 378 N.C. 366, 860 S.E.2d 917 (2021).
¶ 16 In sum, Defendant argues that “[b]ecause industrial hemp and marijuana . . .
are identical in appearance and odor, and both contain THC, law enforcement officers
and drug-detecting canines are unable to distinguish the two without a quantitative
test measuring the chemical percentage of THC, irrespective of their training and
experience.” Thus, Defendant maintains that (1) the trial court erred by denying his
motion to suppress because the green, leafy substance inside the target package was
seized prior to determining whether it contained an unlawful concentration of THC;
(2) the indictment charging Defendant with possession with intent to sell or deliver
THC was facially invalid because it failed to specifically allege an unlawful
concentration of THC; (3) the trial court erred by denying Defendant’s motion to
dismiss the charge of possession with intent to sell or deliver THC because the State
presented insufficient evidence that the brown material recovered during lawful
searches of Defendant’s storage unit, residence, and the bag that he was carrying
when he arrived at the storage unit contained an unlawful concentration of THC; and
(4) the trial court erred by permitting several of the State’s witnesses to offer opinion
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testimony identifying the various seized substances as “marijuana,” “marijuana wax,”
“shatter,” and “highly concentrated THC,” absent a scientifically valid chemical
analysis of each substance, in violation of Rule 702 of the North Carolina Rules of
Evidence.
¶ 17 Defendant further argues that the trial court committed plain error by
admitting evidence regarding the chemical analysis of the seized material discovered
inside the target package, in violation of his constitutional right to confront
testimonial witnesses against him.
¶ 18 Finally, Defendant advances a pair of arguments concerning the charge of
conspiracy to traffic marijuana by transportation. Defendant contends that the trial
court erred by denying his motion to dismiss this charge due to insufficient evidence,
and that the trial court erred by admitting into evidence a recording of a phone call
between Investigator Menzie and Marcus Rawls, Defendant’s alleged co-conspirator.
A. Motion to Suppress
¶ 19 We begin by addressing Defendant’s constitutional arguments concerning the
initial removal of the target package from the conveyor belt at the FedEx facility and
the subsequent searches and seizures that followed. Defendant raises several
arguments arising under the federal and state constitutions, essentially claiming that
the trial court erred by denying his motion to suppress because law enforcement
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officers lacked either probable cause or reasonable suspicion1 to seize the target
package at the FedEx facility. However, for the following reasons, we affirm the trial
court’s denial of Defendant’s motion to suppress.
1. Standard of Review
¶ 20 “In evaluating the denial of a motion to suppress, the reviewing court must
determine whether competent evidence supports the trial court’s findings of fact and
whether the findings of fact support the conclusions of law.” State v. Williams, 366
N.C. 110, 114, 726 S.E.2d 161, 165 (2012) (citation and internal quotation marks
omitted). “The trial court’s findings of fact on a motion to suppress are conclusive on
appeal if supported by competent evidence, even if the evidence is conflicting.” Id.(citation and internal quotation marks omitted). “Findings of fact that are not
challenged on appeal are deemed to be supported by competent evidence and are
binding upon this Court.” State v. Lane, 280 N.C. App. 264, 2021-NCCOA-593, ¶ 12
(citation and internal quotation marks omitted). “Conclusions of law are reviewed de
novo and are fully reviewable on appeal.” Williams, 366 N.C. at 114, 726 S.E.2d at
165 (citation and internal quotation marks omitted).
1 Defendant argues that “this Court could—and should—rule under our State
Constitution that probable cause is required to seize and investigate a parcel,” rather than
continuing to apply the reasonable suspicion standard adopted by the United States Supreme
Court. See United States v. Van Leeuwen, 397 U.S. 249, 252–53, 25 L. Ed. 2d 282, 285–86
(1970). As discussed in section II.A.2 below, we decline Defendant’s invitation to address this
issue.
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2. The Trial Court’s Ruling
¶ 21 At the conclusion of the suppression hearing, the trial court denied Defendant’s
motion to suppress. The court instructed the assistant district attorney to prepare a
proposed order2 consistent with the following orally rendered findings of fact and
conclusions of law:
You should find the facts by a preponderance of the
evidence that on the day in question, March 21, 2018, these
officers were working interdiction at Fed Ex, that Fed Ex
facility on Atlantic Avenue; that they observed this parcel
coming down the conveyor belt, and their attention was
attracted to it by the fact that all the seams were taped,
which, based upon their training and experience -- or,
rather, training and experience of Investigator Menzie, is
an indication of a parcel which might contain controlled
substances.
That upon examination of the shipping label, the phone
number listed for the recipient appeared to be fictitious. It
was 888-8888.
That the officers removed the package from the conveyor
belt and examined it further. Upon running the name and
address and phone number for the sender through the law
enforcement databases -- and you should identify those
which they were employing -- it appeared that the address
for the sender was fictitious; that the phone number for the
sender was fictitious; that the sender, in fact, lived at
another address; that the package was actually shipped out
of Sun Valley, California, not North Hollywood, California.
That the officers then placed the package in a lineup with
four other parcels and had a K-9 or dog trained in narcotics
detection, which dog is on the scene with its handler, sniff
2 No written order on Defendant’s motion to suppress appears in the record on appeal.
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the packages. Include as a fact, of course, that the dog was
certified, and please include the name of the certifying
agency.
That the dog alerted on the suspect package, and based
upon this information, the officers seized the package and
applied to the magistrate for a search warrant.
Based upon these facts, the Court would conclude as a
matter of law that [D]efendant did have standing to
challenge the search warrant based upon the fact that
[D]efendant is the named recipient of the package; that a
reasonable and articulable suspicion existed sufficient to
justify the brief detention of the package for purposes of
having a drug dog sniff it; and that the retention of the
package was for a reasonable period of time given that the
dog was on the scene. And, in fact, as a finding of fact, you
may include that the process of this lineup took about five
to ten minutes.
And that based upon the totality of the circumstances,
probable cause existed for the issuance of the search
warrant for the parcel. And, accordingly, the motion to
suppress the issuance of the search warrant and seizure of
the parcel is denied.
¶ 22 On appeal, Defendant does not specifically challenge any of the trial court’s
findings of fact, and therefore they are binding upon this Court. Lane, ¶ 12. Rather,
Defendant challenges the trial court’s conclusion of law, based upon the unchallenged
facts, that “the brief detention of the [target] package for purposes of having a drug
dog sniff it” was supported by reasonable suspicion.3
3 The United States Supreme Court has determined that a warrantless postal
interdiction must be supported by reasonable suspicion of illegal activity afoot. See Van
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¶ 23 We conclude that Defendant’s Fourth Amendment rights were not violated in
the case at bar. At the outset, we do not accept Defendant’s initial contention that the
mere removal of the target package from the conveyor belt for a drug dog sniff was a
“seizure” implicating his Fourth Amendment rights. Neither was the drug dog sniff
at the FedEx facility a “search” infringing upon any of Defendant’s Fourth
Amendment rights.
¶ 24 However, assuming, arguendo, that Defendant’s Fourth Amendment rights
were implicated, we also conclude that he waived appellate review of these
arguments. Each of these reasons compels our conclusion that the trial court did not
err by denying Defendant’s motion to suppress.
3. Removal of the Target Package
¶ 25 At all stages of this case, from the suppression hearing through appellate
briefing, Defendant has maintained that the initial removal of the target package
from the conveyor belt was a seizure in violation of the Fourth Amendment. After
Leeuwen, 397 U.S. at 252–53, 25 L. Ed. 2d at 285–86. However, Defendant invites this Court
to interpret the North Carolina Constitution as requiring that the State satisfy the more
stringent probable cause standard in warrantless postal interdictions. See State v. Carter,
322 N.C. 709, 713, 370 S.E.2d 553, 555 (1988) (“Even were the two provisions identical, we
have the authority to construe our own constitution differently from the construction by the
United States Supreme Court of the Federal Constitution, as long as our citizens are thereby
accorded no lesser rights than they are guaranteed by the parallel federal provision.”),
superseded in part by statute on other grounds, An Act to Provide for the Adoption of the Good
Faith Exception to the Exclusionary Rule into State Law, S.L. 2011-6, § 2, 2011 Sess. Laws
10, 11. Given our disposition of Defendant’s other Fourth Amendment arguments, we need
not address this issue at this juncture.
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careful review, we disagree.
¶ 26 The Fourth Amendment to the United States Constitution protects “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures[.]” U.S. Const. amend. IV. “The North Carolina
Constitution affords similar protection.” State v. Cabbagestalk, 266 N.C. App. 106,
111, 830 S.E.2d 5, 9 (2019); see N.C. Const. art. I, § 20. “Letters and other sealed
packages are in the general class of effects in which the public at large has a
legitimate expectation of privacy; warrantless searches of such effects are
presumptively unreasonable.” United States v. Jacobsen, 466 U.S. 109, 114, 80 L. Ed.
2d 85, 94 (1984). “Both the sender and the designated recipient of a package sent by
mail or other carrier have a legitimate expectation of privacy in the contents of that
package.” United States v. Hurley, 182 F. App’x 142, 145 (4th Cir.), cert. denied, 549
U.S. 905, 166 L. Ed. 2d 183 (2006)4; see also Jacobsen, 466 U.S. at 114, 80 L. Ed. 2d
at 94.
¶ 27 “A ‘seizure’ of property occurs when there is some meaningful interference with
an individual’s possessory interests in that property.” Jacobsen, 466 U.S. at 113, 80
It is axiomatic that the courts of North Carolina must treat “decisions of the United
4
States Supreme Court as binding” on issues arising under the federal constitution, but our
Supreme Court has repeatedly recognized that we may also “accord[ ] to decisions of lower
federal courts such persuasiveness as these decisions might reasonably command.” State v.
Berryman, 360 N.C. 209, 212, 624 S.E.2d 350, 353 (2006) (citation omitted).
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L. Ed. 2d at 94. “The intrusion on possessory interests occasioned by a seizure of one’s
personal effects can vary both in its nature and extent. The seizure may be made after
the owner has relinquished control of the property to a third party[,]” such as an
express courier. United States v. Place, 462 U.S. 696, 705, 77 L. Ed. 2d 110, 119–20
(1983). A sender who voluntarily relinquishes control of a package to a private courier
may be “unable to show that the invasion intruded upon either a privacy interest in
the contents of the packages or a possessory interest in the packages themselves.” Id.at 705–06 n.6, 77 L. Ed. 2d at 120 n.6 (citation omitted). Therefore, in postal
interdiction cases just as in other Fourth Amendment contexts, the nature and extent
of the intrusion upon the privacy interest in the contents of a package vary with the
totality of the circumstances. Indeed, as Justice Brennan noted in Place, “the mere
detention of mail not in [an addressee’s] custody or control amounts to at most a
minimal or technical interference with his person or effects, resulting in no personal
deprivation at all.” Id. at 718 n.5, 77 L. Ed. 2d at 128 n.5 (Brennan, J., concurring)
(citation omitted).
¶ 28 Although neither the appellate courts of North Carolina nor the United States
Court of Appeals for the Fourth Circuit have directly addressed the Fourth
Amendment in the context of postal interdiction, other federal circuit courts of
appeals have considered this issue. For example, the Ninth Circuit has concluded
that, “[a]lthough a person has a legitimate interest that a mailed package will not be
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opened and searched en route, there can be no reasonable expectation that postal
service employees will not handle the package or that they will not view its exterior[.]”
United States v. Hernandez, 313 F.3d 1206, 1209–10 (9th Cir. 2002) (citation omitted),
cert. denied, 538 U.S. 1023, 155 L. Ed. 2d 867 (2003). The Hernandez Court further
explained that the recipient of a mailed package has a different interest in the
package than its sender:
The recipient of a mailed item . . . has a reasonable
expectation that the mail will not be detained by postal
employees beyond the normal delivery date and time. In
other words, an addressee’s possessory interest is in the
timely delivery of a package, not in having his package
routed on a particular conveyor belt, sorted in a particular
area, or stored in any particular sorting bin for a particular
amount of time.
Id. at 1210 (emphasis added) (citation and internal quotation marks omitted).
Therefore, “even though first-class mail is protected by the Fourth Amendment from
unreasonable search and seizure, it is not beyond the reach of all inspection. Rather,
the question is whether the conditions for its detention and inspection have been
satisfied.” Id. (citations and internal quotation marks omitted); United States v. Van
Leeuwen, 397 U.S. 249, 251–52, 25 L. Ed. 2d 282, 285 (1970).
¶ 29 In Van Leeuwen, for instance, the United States Supreme Court concluded that
law enforcement officers’ warrantless detention of a first-class package for
approximately 29 hours while they obtained a search warrant did not implicate the
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defendant’s privacy interest:
No interest protected by the Fourth Amendment was
invaded by forwarding the packages the following day
rather than the day when they were deposited. The
significant Fourth Amendment interest was in the privacy
of this first-class mail; and that privacy was not disturbed
or invaded until the approval of the magistrate was
obtained.
397 U.S. at 253, 25 L. Ed. 2d at 286 (emphasis added).
¶ 30 Accordingly, “for the purposes of the Fourth Amendment, no seizure occurs if
a package is detained in a manner that does not significantly interfere with its timely
delivery in the normal course of business.” United States v. Quoc Viet Hoang, 486
F.3d 1156, 1162 (9th Cir. 2007), cert. denied, 552 U.S. 1144, 169 L. Ed. 2d 813 (2008);
see also id. (holding that “the ten minute detention of [a defendant]’s package in the
FedEx hold room without reasonable suspicion d[id] not implicate his Fourth
Amendment rights”).
¶ 31 In the instant case, when the trial court denied Defendant’s motion to
suppress, it found as fact that Hydro was “on the scene with” Officer Smith and that
“the process of this lineup took about five to ten minutes.” Defendant does not
challenge these findings of fact, and they are, therefore, binding on appeal. See Lane,
¶ 12. Based on these unchallenged findings, the trial court concluded that “the
retention of the [target] package was for a reasonable period of time given that the
dog was on the scene.” Defendant’s insistence that this temporary retention of the
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target package amounted to a seizure implicating his Fourth Amendment rights is
not supported by the relevant case law, as a delay of approximately five to ten
minutes to procure an on-site canine unit for a drug sniff of an apparently suspicious
package did “not significantly interfere with [the target package’s] timely delivery in
the normal course of business.” Quoc Viet Hoang, 486 F.3d at 1162. Accordingly,
Defendant’s “possessory interest . . . in the timely delivery of [the target] package”
was not disturbed, Hernandez, 313 F.3d at 1210, and we cannot agree with
Defendant’s argument that the mere removal of the target package from the conveyor
belt for a drug dog sniff was a “seizure” implicating the Fourth Amendment.
¶ 32 Defendant also challenges several investigatory acts undertaken by law
enforcement officers before Investigator Menzie obtained a search warrant to open
the target package upon Hydro’s positive alert to the presence of controlled
substances during the drug dog sniff conducted at the FedEx facility. For the reasons
explained above, the initial removal of the target package from the conveyor belt was
not a “seizure” implicating Defendant’s Fourth Amendment rights. As the trial court
properly concluded, “a reasonable and articulable suspicion existed sufficient to
justify the brief detention of the package for purposes of having a drug dog sniff it;
and . . . the retention of the package was for a reasonable period of time given that
the dog was on the scene.”
¶ 33 Neither was Hydro’s drug sniff a “search” implicating Defendant’s Fourth
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Amendment rights. And, given that Hydro alerted to the target package in the line-
up, the trial court correctly concluded “that based upon the totality of the
circumstances, probable cause existed for the issuance of the search warrant for the
parcel.” Taken together, neither the removal of the package nor the drug dog sniff
violated Defendant’s Fourth Amendment right to be free from unreasonable searches
and seizures because under the facts presented, those acts constituted neither a
seizure (the removal) nor a search (the drug dog sniff). Rather, those acts, viewed in
the totality of the circumstances, merely provided further support for Investigator
Menzie’s determination that probable cause existed to obtain a search warrant to
open the target package. Accordingly, the trial court did not err by denying
Defendant’s motion to suppress.
¶ 34 Moreover, the subsequent searches and seizures flowing from these acts were
supported by valid warrants. Defendant challenges the validity of these warrants
solely for want of probable cause, based on the same Fourth Amendment arguments
that we have addressed and determined to be without merit. Yet each search warrant
application reveals that law enforcement officers properly built their investigation
step by step.
¶ 35 Having determined that probable cause existed to support his application for
a search warrant of the target package, Investigator Menzie immediately sought and
obtained one, and the resultant search yielded approximately 15 pounds of vacuum-
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sealed marijuana and a GPS tracker. When Investigator Menzie surveilled the
residence to which the target package was addressed, he noticed a nearby storage
facility and subsequently learned that Defendant rented a unit at that location. In a
second drug dog sniff—which Defendant does not challenge on appeal—Hydro alerted
to Defendant’s storage unit, and within an hour Defendant arrived at the unit
carrying a tote in which was visible a brown substance that law enforcement officers
believed was THC. These facts, combined with the previously developed probable
cause, gave rise to further probable cause sufficient to support the issuance of a
search warrant for the storage unit. That lawful search, in turn, provided sufficient
probable cause to support the issuance of a document search warrant for the
residence, the search of which provided sufficient probable cause to support the
issuance of a controlled substances search warrant, permitting the lawful search of
the residence.
¶ 36 In sum, at every stage of the investigation—from the initial removal of the
target package and the drug dog sniff at the FedEx facility through each search and
seizure conducted pursuant to valid and lawfully obtained warrants—law
enforcement officers complied with the requirements of the Fourth Amendment.
Accordingly, Defendant’s challenge is overruled.
¶ 37 However, even assuming, arguendo, that the law enforcement officers’ actions
here amounted to searches or seizures within the purview of the Fourth Amendment,
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we additionally conclude that he has waived appellate review of these issues.
4. Waiver of Appellate Review
¶ 38 Rule 10(a)(1) of the North Carolina Rules of Appellate Procedure establishes
that a party must object at trial, and obtain a ruling from the court, in order to
preserve an issue for appellate review:
In order to preserve an issue for appellate review, a party
must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the
ruling the party desired the court to make if the specific
grounds were not apparent from the context. It is also
necessary for the complaining party to obtain a ruling upon
the party’s request, objection, or motion.
N.C.R. App. P. 10(a)(1).
¶ 39 A motion in limine, such as a pretrial motion to suppress, is “not sufficient to
preserve for appeal the question of admissibility of evidence if the defendant does not
object to that evidence at the time it is offered at trial.” State v. Golphin, 352 N.C.
364, 405, 533 S.E.2d 168, 198 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305(2001). Following the denial of a pretrial motion to suppress evidence, the defendant’s
subsequent “[f]ailure to object at trial waives appellate review[.]” State v. Anthony,
271 N.C. App. 749, 752, 845 S.E.2d 452, 455, disc. review denied, 376 N.C. 544, 851
S.E.2d 634 (2020).
¶ 40 Here, Defendant filed a pretrial motion to suppress, inter alia, “evidence
obtained as the result of an unconstitutional seizure of the [target package] addressed
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to . . . Defendant,” and renewed his objection at trial to the introduction of evidence
concerning the drug dog sniff. Nonetheless, Defendant concedes that he “did not
object when the State elicited testimony about the removal of the [target package]
from the conveyor belt.” Therefore, Defendant has waived appellate review of the
issue of the target package’s removal from the conveyor belt, see id., and the trial
court’s conclusion that “a reasonable and articulable suspicion existed sufficient to
justify a brief detention of the package for purposes of having a drug dog sniff it”
remains undisturbed.
¶ 41 Perhaps in an attempt to avoid this waiver, Defendant couches his dog-sniff
argument in the conjunctive, combining the drug dog sniff with the alleged “seizure”
of the target package from the conveyor belt: “such actions plus the conducting of a
lineup with a narcotics-detecting canine constituted a search[.]” (Emphasis added).
This argument fails.
¶ 42 Despite the fact that Defendant objected at trial to the introduction of evidence
regarding Hydro’s drug sniff of the target package once it was removed from the
conveyor belt, this subsequent objection cannot overcome Defendant’s failure to object
to the State’s initial introduction of Investigator Menzie’s testimony regarding the
removal of the target package itself—the alleged “seizure” that Defendant has
consistently characterized as the initial Fourth Amendment violation. Moreover,
Defendant’s subsequent objection at trial to the introduction of evidence regarding
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the drug dog sniff cannot preserve Defendant’s broader Fourth Amendment
arguments for appellate review because the drug dog sniff, on its own, did not infringe
on Defendant’s Fourth Amendment rights.
¶ 43 Defendant primarily bases his argument concerning the drug dog sniff on
Florida v. Jardines, in which the United States Supreme Court concluded that “the
officers’ investigation took place in a constitutionally protected area”—the front porch
of the defendant’s home—and held that “[t]he government’s use of trained police dogs
to investigate the home and its immediate surroundings is a ‘search’ within the
meaning of the Fourth Amendment.” 569 U.S. 1, 7, 11–12, 185 L. Ed. 2d 495, 501–02,
504 (2013).
¶ 44 In analogizing the target package in this case to the front door of the home in
Jardines, Defendant disregards extensive precedent according a person’s home
heightened Fourth Amendment protection. Id. at 6, 185 L. Ed. 2d at 501 (“[W]hen it
comes to the Fourth Amendment, the home is first among equals.”). In fact, the
Jardines Court explicitly distinguished a warrantless drug dog sniff of the home and
its immediate surroundings from previous decisions involving warrantless drug dog
sniffs in public places, which the Supreme Court determined did not implicate the
defendants’ constitutional expectations of privacy in their property or effects. Id. at
10–11, 185 L. Ed. 2d at 503–04; see also Illinois v. Caballes, 543 U.S. 405, 409, 160 L.
Ed. 2d 842, 847 (2005) (concluding that “the use of a well-trained narcotics-detection
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dog . . . during a lawful traffic stop, generally does not implicate legitimate privacy
interests”); Place, 462 U.S. at 707, 77 L. Ed. 2d at 121 (concluding that the “exposure
of [the] respondent’s luggage, which was located in a public place, to a trained canine
. . . did not constitute a ‘search’ within the meaning of the Fourth Amendment”).
¶ 45 The Jardines Court focused on the physical intrusion of the defendant’s “home
and its immediate surroundings” rather than any violation of his reasonable
expectation of privacy. 569 U.S. at 11, 185 L. Ed. 2d at 504 (“[W]e need not decide
whether the officers’ investigation of Jardines’ home violated his expectation of
privacy under Katz [v. United States, 389 U.S. 347, 19 L. Ed. 2d 576 (1967)]. . . . That
the officers learned what they learned only by physically intruding on Jardines’
property to gather evidence is enough to establish that a search occurred.”).
¶ 46 As our Supreme Court has explained, Jardines presents an exception to the
“generally permissive view of public dog sniffs under the Fourth Amendment.” State
v. Miller, 367 N.C. 702, 708, 766 S.E.2d 289, 293 (2014). Insofar as the relevant
decisions of the United States Supreme Court “encourage police to utilize dog sniffs
in the public sphere,” the Court’s decision in Jardines “places police on a much shorter
leash when employing dog sniffs in and around the home.” Id. (emphases added).
¶ 47 In the present case, however, Defendant can claim no physical intrusion
analogous to that in Jardines, because the drug dog sniff in question did not occur at
his home or within its immediate surroundings. Instead, the drug dog sniff here is
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precisely in line with the sort of investigation in the “public sphere” that our Supreme
Court noted was “encourage[d]” by the United States Supreme Court’s pre-Jardines
opinions. Id.¶ 48 We conclude that the drug dog sniff of the target package, which occurred on
the grounds of a private, third-party facility at which Defendant was not present and
in which he claimed no property interest, did not implicate any Fourth Amendment
right in and of itself. Further, at the time of these events, Defendant was unaware of
either the drug dog sniff or the temporary retention of the target package that
precipitated the sniff. Lastly, as previously discussed, the target package was only
detained for a brief period of time, which was insufficient to implicate Defendant’s
Fourth Amendment rights. See Van Leeuwen, 397 U.S. at 253, 25 L. Ed. 2d at 286.
¶ 49 Accordingly, the warrantless drug dog sniff of the target package, still in the
mail stream and in the custody of a third party on the grounds of a facility in which
Defendant had no possessory interest, and which the trial court found only “took
about five to ten minutes[,]” did not in and of itself implicate the Fourth Amendment.
Therefore, Defendant’s renewed objection at trial to the introduction of evidence
concerning the drug dog sniff was insufficient to resurrect any prior unpreserved
Fourth Amendment argument for appellate review.
5. Plain Error
¶ 50 Finally, “out of an abundance of caution,” Defendant contends that the trial
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court’s denial of his motion to suppress “constituted plain error necessitating
reversal.” However, “[t]he first step under plain error review is . . . to determine
whether any error occurred at all.” State v. Oxendine, 246 N.C. App. 502, 510, 783
S.E.2d 286, 292, disc. review denied, 368 N.C. 921, 787 S.E.2d 24 (2016). We have
already determined that the law enforcement officers’ actions did not implicate any
of Defendant’s Fourth Amendment rights. In that Defendant is unable to show any
error in the trial court’s denial of his motion to suppress, Defendant’s plain error
arguments are overruled as well.
¶ 51 Moreover, in reaching these determinations, we have carefully reviewed the
evidence at the suppression hearing. We further conclude that the trial court’s
findings of fact are supported by the evidence, and that those findings, in turn,
support the trial court’s conclusions of law and its denial of Defendant’s motion to
suppress. For all of these reasons, we affirm the denial of Defendant’s motion to
suppress.
B. Industrial Hemp
¶ 52 The majority of Defendant’s remaining issues on appeal stem from our General
Assembly’s legalization of industrial hemp. “Industrial hemp is a variety of the
species Cannabis Sativa—the same species of plant as marijuana. The difference
between the two substances is that industrial hemp contains very low levels of [THC],
which is the psychoactive ingredient in marijuana.” Parker, ¶ 27. Our General
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Statutes define “industrial hemp” as “[a]ll parts and varieties of the plant Cannabis
sativa (L.), cultivated or possessed by a grower licensed by the [North Carolina
Industrial Hemp] Commission, whether growing or not, that contain a [THC]
concentration of not more than three-tenths of one percent (0.3%) on a dry weight
basis.” N.C. Gen. Stat. § 106-568.51(7) (2021).5
¶ 53 Defendant maintains that the passage of the Industrial Hemp Act altered the
legal landscape surrounding marijuana and THC, changes which resulted in
prejudicial errors during several stages of his prosecution. Specifically, Defendant
challenges: (1) the validity of the indictment charging him with possession with intent
to sell or deliver THC; (2) the sufficiency of the State’s evidence regarding the charge
of possession with intent to sell or deliver THC; and (3) the admissibility of the
opinion testimony of witnesses for the State identifying the various seized substances
as “marijuana,” “marijuana wax,” “shatter,” and “highly concentrated THC.”
5 In order to maintain the legal status of “hemp” and “hemp products,” see N.C. Gen.
Stat. § 90-87(13a)–(13b) (2022), following the expiration of the Industrial Hemp Act on 30
June 2022, our General Assembly amended the North Carolina Controlled Substances Act
effective 30 June 2022, see An Act to Conform the Hemp Laws with Federal Law by
Permanently Excluding Hemp from the State Controlled Substances Act, S.L. 2022-32,
https://www.ncleg.gov/EnactedLegislation/SessionLaws/PDF/2021-2022/SL2022-32.pdf.
Nonetheless, as a general rule, “the amendment of a criminal statute does not affect the
prosecution or punishment of a crime committed before the amendment becomes effective[.]”
State v. Hart, 287 N.C. 76, 81, 213 S.E.2d 291, 295 (1975) (citation omitted). Thus, “as to such
crimes the original statute remains in force.” Id. (citation omitted). Because the Industrial
Hemp Act was in effect at all times relevant to this appeal, our analysis is unchanged by this
recent legislation.
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¶ 54 We note initially that at the root of these arguments is a fundamental
misapprehension concerning the State’s burden of proof at each stage of these
proceedings, none of which the provisions of the Industrial Hemp Act affect to the
degree that Defendant contends. Although our appellate courts have yet to fully
address the effect of industrial hemp’s legalization on the panoply of standards and
procedures applicable during the various stages of a criminal investigation and
prosecution for acts involving marijuana, see Parker, ¶ 29 (“The legal issues raised by
the recent legalization of hemp have yet to be analyzed by the appellate courts of this
state.”), the federal courts of North Carolina have considered some of these issues.
We find their analyses illustrative with regard to the enduring viability of our
marijuana case law and the legal principles articulated by those precedents, despite
the enactment of the Industrial Hemp Act.
¶ 55 In United States v. Harris, the United States District Court for the Eastern
District of North Carolina explained that “the smell of marijuana alone . . . supports
a determination of probable cause, even if some use of industrial hemp products is
legal under North Carolina law. This is because ‘only the probability, and not a prima
facie showing, of criminal activity is the standard of probable cause.’ ” No. 4:18-CR-
57-FL-1, 2019 WL 6704996, at *3 (E.D.N.C. Dec. 9, 2019) (emphasis added) (quoting
Illinois v. Gates, 462 U.S. 213, 235, 76 L. Ed. 2d 527, 546, reh’g denied, 463 U.S. 1237,
77 L. Ed. 2d 1453 (1983)).
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¶ 56 Similarly, in United States v. Brooks, the United States District Court for the
Western District of North Carolina denied a defendant’s motion to suppress where,
inter alia, the defendant argued that the odor of marijuana that the law enforcement
officer detected “could have been from a legal source.” No. 3:19-cr-00211-FDW-DCK,
2021 WL 1668048, at *4 (W.D.N.C. Apr. 28, 2021). In denying the motion to suppress,
the trial court noted that the defendant cited “no relevant case law which requires a
law enforcement officer to test contraband found in a vehicle based on the plain smell
of marijuana.” Id.¶ 57 The court then explained the basis for its determination that the legalization
of industrial hemp did not alter the court’s probable-cause analysis:
Assuming, arguendo, hemp and marijuana smell
“identical,” then the presence of hemp does not make all
police probable cause searches based on the odor
unreasonable. The law, and the legal landscape on
marijuana as a whole, is ever changing but one thing is still
true: marijuana is illegal. To date, even with the social
acceptance of marijuana seeming to grow daily, precedent
on the plain odor of marijuana giving law enforcement
probable cause to search has not been overturned.
Therefore, if hemp does have a nearly identical smell to
marijuana — and hemp was present — it would suggest to
this court that [the law enforcement officer] was even more
reasonable to believe evidence of marijuana was present.
Id. (first emphasis added) (footnotes omitted).
¶ 58 The reasoning and analyses of these federal cases are persuasive, and
demonstrate the general shortcoming that underlies Defendant’s various arguments
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on appeal. The passage of the Industrial Hemp Act, in and of itself, did not modify
the State’s burden of proof at the various stages of our criminal proceedings.6
1. Sufficiency of the Indictment
¶ 59 With the above guidance in mind, we first reject Defendant’s argument that
the indictment charging him with possession with intent to sell or deliver THC “was
facially defective because it did not allege with particularity an offense proscribed by
North Carolina law subsequent to the legalization of industrial hemp.”
¶ 60 It is axiomatic that “a valid bill of indictment is essential to the jurisdiction of
the trial court to try an accused for a felony.” State v. Mostafavi, 370 N.C. 681, 684,
6 Defendant also invokes the Industrial Hemp Act to support his argument that the
trial court erred by denying his motion to suppress because the green, leafy substance inside
the parcel was “seized” from the target package prior to determining whether it contained an
unlawful concentration of THC. However, for the reasons articulated in section II.A.3 above,
to the extent that Defendant challenges the initial removal of the target package from the
conveyor belt at the FedEx facility, such removal was not a “seizure” implicating his Fourth
Amendment rights. And to the extent that Defendant refers to the seizure of the vacuum-
sealed bags discovered inside the target package, the bags were seized pursuant to the
execution of a valid, lawfully obtained search warrant and therefore did not violate
Defendant’s Fourth Amendment rights. Further, for the reasons articulated herein, the
Industrial Hemp Act has not changed the State’s burden of proof to overcome a motion to
suppress.
Finally, we note that this is not a case where the detectable odor of marijuana was the
only suspicious fact concerning the package. The trial court’s findings of fact include, inter
alia, that the seams of the package were sealed, the phone number listed for the recipient on
the target package was fictitious, the sender’s address and phone number listed on the target
package were fictitious, and the actual city from which the target package was sent differed
from the city of origin stated on the package. We therefore need not address in this case
whether the odor of marijuana alone may give rise to probable cause for the issuance of a
search warrant, as the totality of the circumstances here was sufficient to give rise to
probable cause. Accordingly, this argument is overruled.
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811 S.E.2d 138, 140 (2018) (citation omitted). While “an indictment must allege all
the essential elements of the offense endeavored to be charged, . . . an indictment
couched in the language of the statute is generally sufficient to charge the statutory
offense[.]” Id. at 685, 811 S.E.2d at 141 (citations and internal quotation marks
omitted).
¶ 61 In the instant case, the challenged indictment alleged that Defendant
“unlawfully, willfully and feloniously did possess with intent to sell or deliver a
controlled substance, delta-9-tetrahydrocannabinol, commonly referred to as ‘THC’,
which is included in Schedule VI of the North Carolina Controlled Substances Act.
This act was done in violation of N.C.G.S. § 90-95(a)(1).” Defendant contends that, in
light of the legalization of industrial hemp, “a cognizable criminal charge would be
possession of a substance containing an unlawful quantity of the chemical compound”
THC. Defendant argues that the indictment was facially defective because it failed to
specifically allege that he possessed “an unlawful quantity” of THC, and thus the trial
court lacked jurisdiction to enter judgment on this charge.
¶ 62 However, regardless of the passage of the Industrial Hemp Act, the
concentration of THC is not an element of the offense of possession with intent to sell
or deliver THC. The Controlled Substances Act makes it illegal to “possess with intent
to manufacture, sell or deliver, a controlled substance[.]” N.C. Gen. Stat. § 90-95(a)(1).
“The offense of possession with intent to sell or deliver has the following three
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elements: (1) possession of a substance; (2) the substance must be a controlled
substance; (3) there must be intent to sell or distribute the controlled substance.”
State v. Carr, 145 N.C. App. 335, 341, 549 S.E.2d 897, 901 (2001).
“Tetrahydrocannabinols”—a broader category of substances that includes THC—are
Schedule VI controlled substances. N.C. Gen. Stat. § 90-94(2). Accordingly, by
identifying THC as a controlled substance, the indictment at issue here was
appropriately “couched in the language of the statute” and “sufficient to charge the
statutory offense[.]” Mostafavi, 370 N.C. at 685, 811 S.E.2d at 141 (citation omitted).
¶ 63 Finally, the “plain reading of Chapter 90 reveals lawful possession of a
controlled substance is not an element of the statute but rather an exception[.]” State
v. Palmer, 273 N.C. App. 169, 169, 847 S.E.2d 449, 450 (2020). Significantly, the
Industrial Hemp Act did not remove THC from Schedule VI of the Controlled
Substances Act. See N.C. Gen. Stat. § 90-94(2). And if the Industrial Hemp Act creates
an exception for industrial hemp or somehow alters the State’s well-established
burden of proof in controlled-substance prosecutions, “[i]t shall not be necessary for
the State to negate any exemption or exception set forth in [the Controlled Substances
Act] in any complaint, information, indictment, or other pleading or in any trial,
hearing, or other proceeding under” the Controlled Substances Act. Id. § 90-113.1(a).
The burden of proving that a controlled substance is, in fact, lawfully possessed is
borne by the defendant. Id.
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¶ 64 Defendant has not shown that the indictment charging him with possession
with intent to sell or deliver THC was fatally deficient. Accordingly, this argument is
overruled.
2. Motion to Dismiss
¶ 65 Defendant next argues that the trial court erred by denying his motion to
dismiss the charge of possession with intent to sell or deliver THC “because there was
insufficient evidence the brown material tested by the CCBI lab contained the
requisite percentage of [THC] to be deemed an unlawful substance.”7 This argument,
too, is without merit, because none of the “brown material” falls within the Industrial
Hemp Act’s definition of “industrial hemp.”
¶ 66 This Court reviews a trial court’s denial of a motion to dismiss de novo. State
v. McClaude, 237 N.C. App. 350, 352, 765 S.E.2d 104, 107 (2014). The question for
the trial court upon a defendant’s motion to dismiss “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 [the] defendant’s being the perpetrator of such offense. If
so, the motion is properly denied.” Id. at 352–53, 765 S.E.2d at 107 (citation omitted).
7 At trial, the State’s forensic chemist testified that she tested one item (“11 sheets of
shatter”) of the several items of brown material that were submitted to her lab at the City-
County Bureau of Investigation. She testified that she only tested this item because there is
no statutory “weight-based threshold for . . . THC,” and that it is “fairly common in most
crime labs to test to [the] statutory threshold in terms of efficiency.” See N.C. Gen. Stat. § 90-
95(d)(4) (making the possession “of any quantity of . . . tetrahydrocannabinols isolated from
the resin of marijuana” a Class I felony (emphasis added)).
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“In making its determination, the trial court must consider all evidence admitted,
whether competent or incompetent, in the light most favorable to the State, giving
the State the benefit of every reasonable inference and resolving any contradictions
in its favor.” Id. at 353, 765 S.E.2d at 107 (citation omitted).
¶ 67 As stated above, for the purposes of the Industrial Hemp Act, “industrial hemp”
means “[a]ll parts and varieties of the plant Cannabis sativa (L.), cultivated or
possessed by a grower licensed by the [North Carolina Industrial Hemp] Commission,
whether growing or not, that contain a [THC] concentration of not more than three-
tenths of one percent (0.3%) on a dry weight basis.” N.C. Gen. Stat. § 106-568.51(7).
¶ 68 Defendant’s claim—that “[w]ithout determining the level of concentration of
[THC] in the brown substance, the State did not present any evidence that the brown
substance actually contained 0.3% or more of [THC] and was thus illegal”—assumes,
without explicitly arguing, that the “brown material” was “industrial hemp,” as
defined by N.C. Gen. Stat. § 106-568.51(7), in the first place. We disagree.
¶ 69 The brown material was neither a part nor a variety of the plant Cannabis
sativa. The State’s forensic chemist, who was tendered and accepted as an expert
witness without objection from Defendant, testified that “[t]here was no plant
material present” in her macroscopic identification of the solid brown material. The
forensic chemist also testified that the brown materials were “extracts of the
marijuana plant[.]” Thus, the brown material is not within the Industrial Hemp Act’s
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definition of “industrial hemp,” but instead more squarely falls under its definition of
“THC”: “[t]he natural or synthetic equivalents of the substances contained in the
plant, or in the resinous extractives of, cannabis, or any synthetic substances,
compounds, salts, or derivatives of the plant or chemicals and their isomers with
similar chemical structure and pharmacological activity.” Id. § 106-568.51(8)
(emphasis added). Further, even if we accepted Defendant’s implicit argument that
the brown material was a “part” or “variety” of the plant Cannabis sativa, Defendant
makes no argument that he was “a grower licensed by the [North Carolina Industrial
Hemp] Commission,” or that the brown material was cultivated by such a licensed
grower, as the statutory definition of “industrial hemp” requires. Id. § 106-568.51(7).
¶ 70 Because the brown material was not “industrial hemp” as defined by the
Industrial Hemp Act, the State was not required to present evidence that the
substance contained 0.3% or more of THC by dry-weight concentration in order to
meet its burden of proof for the offense of possession with intent to sell or deliver
THC.
¶ 71 Accordingly, after careful review of the record, and viewing the evidence “in
the light most favorable to the State,” McClaude, 237 N.C. App. at 353, 765 S.E.2d at
107 (citation omitted), we conclude that the State presented sufficient evidence to
withstand Defendant’s motion to dismiss the charge of possession with intent to sell
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or deliver THC.8 This argument is overruled.
3. Opinion Testimony
¶ 72 Lastly, Defendant argues that the trial court erred by permitting several of the
State’s witnesses to offer opinion testimony that seized substances were “marijuana,”
“marijuana wax,” “shatter,” and “highly concentrated THC” without scientifically
valid chemical analyses identifying them as such, in violation of Rule 702.
¶ 73 Our appellate courts “review the trial court’s decision to admit lay opinion
testimony evidence for abuse of discretion, looking to whether the court’s ruling is
manifestly unsupported by reason or is so arbitrary that it could not have been the
result of a reasoned decision.” State v. Delau, 381 N.C. 226, 2022-NCSC-61, ¶ 29
(citation omitted). Further, in order to show that the erroneous admission of evidence
in a criminal trial prejudiced the defendant, the “defendant bears the burden of
8 Defendant’s argument concerning the sufficiency of the evidence to support the
charge of possession with intent to sell or deliver THC dovetails with his argument, addressed
below, concerning the allegedly erroneous admission of testimony identifying the seized
materials as unlawful controlled substances absent scientifically valid chemical analyses in
violation of Rule 702. To the extent that Defendant’s Rule 702 argument bears on his motion
to dismiss argument, we note that our Supreme Court has recently clarified that it would be
error for this Court to first determine “whether the evidence suffices to support a defendant’s
criminal conviction by ascertaining whether the evidence relevant to the issue of the
defendant’s guilt should or should not have been admitted[,]” and then to consider “whether
the admissible evidence, examined without reference to the allegedly inadmissible evidence
that the trial court allowed the jury to hear, sufficed to support the defendant’s conviction.”
State v. Osborne, 372 N.C. 619, 630, 831 S.E.2d 328, 336 (2019). Accordingly, pursuant to our
Supreme Court’s guidance in Osborne, we cannot and should not exclude the challenged
identification testimony from our consideration of the evidence supporting Defendant’s
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showing that there is a reasonable possibility that a different result would have been
reached at the trial had the trial court excluded” the erroneously admitted evidence.
State v. Carter, 237 N.C. App. 274, 284, 765 S.E.2d 56, 63 (2014) (citation and internal
quotation marks omitted); N.C. Gen. Stat. § 15A-1443(a). For the reasons that follow,
we conclude that Defendant has not shown prejudicial error.
¶ 74 “[T]he State has the burden of proving every element of the charge beyond a
reasonable doubt . . . .” State v. Nabors, 365 N.C. 306, 313, 718 S.E.2d 623, 627 (2011).
Specifically, in prosecutions involving controlled substances, the State bears the
burden of proving the substance’s identity beyond a reasonable doubt. State v. Ward,
364 N.C. 133, 147, 694 S.E.2d 738, 747 (2010). As a general rule, “the expert witness
testimony required to establish that . . . substances introduced [at trial] are in fact
controlled substances must be based on a scientifically valid chemical analysis and
not mere visual inspection.” Id. at 142, 694 S.E.2d at 744.
¶ 75 However, marijuana has long been excepted from this rule. Notwithstanding
Ward, this Court has “specifically noted that marijuana is distinguishable from other
controlled substances that require more technical analyses for positive identification.
In keeping with a long line of cases, we [have repeatedly] held . . . that the State is
not required to submit marijuana for chemical analysis.” State v. Mitchell, 224 N.C.
App. 171, 179, 735 S.E.2d 438, 444 (2012) (citation omitted), appeal dismissed and
disc. review denied, 366 N.C. 578, 740 S.E.2d 466 (2013).
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¶ 76 Nevertheless, Defendant argues that “the legalization of industrial hemp in
North Carolina has eviscerated th[e] justification” for the marijuana exception
recognized in Mitchell and other cases. Yet assuming, arguendo, that the trial court
abused its discretion in admitting this testimony, Defendant fails to demonstrate that
he was prejudiced by its admission.
¶ 77 As the State observes, “Defendant makes no argument explaining how or for
which convictions that evidence affected the jury’s verdict.” To be sure, Defendant’s
assertion of prejudice is little more than a general recapitulation of his overall
arguments regarding the Industrial Hemp Act. For example, Defendant claims that
“the State failed to produce any evidence that the substances seized in the storage
unit, in the bag [Defendant] carried at the storage unit, or in the residence were
subjected to a valid scientific chemical analysis that confirmed their percentage of”
THC. Thus, Defendant contends that the testimony from Investigator Menzie, Officer
Smith, and Sergeant Wright “that, in their opinion, such substances were
‘marijuana,’ ‘marijuana wax,’ ‘shatter,’ or ‘highly concentrated THC,’ constituted the
State’s most compelling evidence that [Defendant] was guilty of possessing the
alleged substances in question.” Accordingly, if the “most compelling evidence” of
Defendant’s guilt was erroneously admitted, then that admission must have been
prejudicial. We disagree with Defendant’s contention.
¶ 78 First, as Defendant candidly acknowledges, the green, leafy substance in the
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target package was tested, and the substance was determined to contain an unlawful
concentration of THC. Defendant, therefore, could not have been prejudiced by any
erroneously admitted testimony regarding the green, leafy substance found in the
target package because “a scientifically valid chemical analysis” was conducted with
respect to this substance. Ward, 364 N.C. at 142, 694 S.E.2d at 744.
¶ 79 Second, as discussed above, the brown material was not “industrial hemp” as
defined in the Industrial Hemp Act. As such, the State was not required to present
evidence of the concentration of THC present in the brown material; it needed only
present “a scientifically valid chemical analysis” showing that the brown material
contained THC, id., which the State did. Therefore, Defendant could not have been
prejudiced by any erroneously admitted testimony identifying the brown material.
¶ 80 Lastly, although the green, leafy substance discovered in the storage unit was
not tested for its concentration of THC, the State presented overwhelming evidence
of Defendant’s guilt of the offense of possession with intent to sell or deliver
marijuana, such that any erroneously admitted testimony regarding its identification
could not have reasonably affected the jury’s verdict on this charge. Significantly, as
discussed below, the State presented substantial evidence of Defendant’s
participation in a conspiracy to traffic marijuana—a conspiracy that culminated in
the discovery of approximately $153,000.00 worth of “high quality” marijuana inside
the target package, which was addressed to Defendant at Defendant’s residence. The
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State also presented a scientifically valid chemical analysis showing that the green,
leafy material discovered in the target package contained an unlawful concentration
of THC. Further, the State presented evidence of Defendant’s unlawful possession of
various other controlled substances and drug paraphernalia, which law enforcement
officers recovered from four distinct sources: the target package; the storage unit (to
which the officers gained entry pursuant to a lawful search warrant by use of
Defendant’s key and with his cooperation); a bag in Defendant’s possession when he
arrived at the storage unit, in which some of the brown material was in plain view
when he set down the bag at the request of a law enforcement officer; and his
residence.
¶ 81 For the foregoing reasons, and in light of the substantial and overwhelming
evidence of Defendant’s guilt, we conclude that Defendant has not shown “that there
is a reasonable possibility that a different result would have been reached at the trial
had the trial court excluded” any erroneously admitted testimony regarding the
identification of any untested substances. Carter, 237 N.C. App. at 284, 765 S.E.2d at
63 (citation and internal quotation marks omitted). Defendant’s argument is
overruled.9
9 Defendant also argues that the trial court committed plain error by admitting
evidence concerning the chemical analysis of the green, leafy substance discovered in the
target package when individuals involved in allegedly critical stages of that analysis did not
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C. Conspiracy
¶ 82 Defendant next argues that the trial court erred by denying his motion to
dismiss the charge of conspiracy to traffic marijuana by transportation, due to
insufficient evidence of a conspiracy between him and another. Additionally,
Defendant contends that the trial court erroneously and prejudicially admitted into
evidence the recording of a phone call between Investigator Menzie and “Marcus,” the
shipper of the target package. Defendant’s arguments are without merit.
1. Motion to Dismiss
¶ 83 The elements of a criminal conspiracy are well established:
A criminal conspiracy is an agreement between two or
more persons to do an unlawful act or to do a lawful act in
an unlawful way or by unlawful means. To constitute a
conspiracy, it is not necessary that the parties should have
come together and agreed in express terms to unite for a
common object: A mutual, implied understanding is
sufficient, so far as the combination or conspiracy is
testify, which Defendant contends violated his constitutional right to confront witnesses
against him. However, “plain error review in North Carolina is normally limited to
instructional and evidentiary error.” State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326,
333 (2012). “Constitutional issues not raised and passed upon at trial will not be considered
for the first time on appeal.” State v. Lloyd, 354 N.C. 76, 86–87, 552 S.E.2d 596, 607 (2001).
Defendant acknowledges that he did not preserve this issue by objecting to the testimony
regarding the analysis or testing of the substances in this case, nor did he object to the
admission of the written certificate of analysis into evidence. Moreover, Defendant did not
seek to introduce at trial the testimony of any of the “numerous individuals involved in
critical stages of the testing process”—none of whom signed the certificate of analysis
admitted into evidence at trial. These are the individuals that Defendant now complains he
constitutionally should have been able to confront. This asserted error is based upon a
constitutional right, and is not squarely an evidentiary error; thus, plain error review is not
available and this argument is dismissed.
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concerned, to constitute the offense.
State v. Chavez, 378 N.C. 265, 2021-NCSC-86, ¶ 14 (citation omitted).
¶ 84 Significantly, “[t]he conspiracy is the crime and not its execution. Therefore,
no overt act is necessary to complete the crime of conspiracy. As soon as the union of
wills for the unlawful purpose is perfected, the offense of conspiracy is completed.”
Id. (citation omitted).
¶ 85 The State may establish the existence of a conspiracy “by direct or
circumstantial evidence.” Id. (citation omitted). Indeed, direct evidence is not
essential to proving a conspiracy, for such proof “is rarely obtainable. It may be, and
generally is, established by a number of indefinite acts, each of which, standing alone,
might have little weight, but, taken collectively, they point unerringly to the existence
of a conspiracy.” Id. (citation omitted).
¶ 86 As stated above, we review de novo a trial court’s denial of a criminal
defendant’s motion to dismiss. McClaude, 237 N.C. App. at 352, 765 S.E.2d at 107.
¶ 87 Here, Defendant argues that “the State lacked evidence of any communication
or planning between [himself] and another person that could sufficiently prove an
agreement or understanding to traffic marijuana.” According to Defendant, “[t]he
State’s evidence, at best, raised the suspicion of a possible association between
[Defendant] and the shipper of the [target package], but that was not enough to
submit this charge to the jury.” Defendant asserts that the State’s case “essentially
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rested on the fact that ‘Joe Teague’ was the addressee listed on the” target package.
Yet in a separate evidentiary challenge, Defendant also asserts that the trial court
erroneously admitted into evidence the recording of a phone call between Investigator
Menzie and Marcus. Although seemingly irrelevant to the question at hand,
Defendant’s evidentiary argument nevertheless implicitly acknowledges that the
State did, in fact, present additional evidence—more than just the shipping label—to
establish the existence of a conspiracy.
¶ 88 Indeed, the State proffered other circumstantial evidence in support of the
existence of a conspiracy in addition to the recording of the phone call between
Investigator Menzie and Marcus. For example, Investigator Menzie testified that he
estimated the street value of the “high quality” marijuana contained in the target
package to be approximately $153,000.00. We agree with the State that such evidence
creates “a strong inference that Marcus did not simply randomly mail the [target
package] to Defendant but instead that he mailed it because Defendant agreed to
accept it.” See id. at 353, 765 S.E.2d at 107 (explaining that the State is entitled to
“the benefit of every reasonable inference” and the resolution of “any contradictions
in its favor” on appellate review of the denial of a defendant’s motion to dismiss
(citation omitted)). Additionally, Marcus shipped this valuable parcel from California
to Defendant’s address using Defendant’s actual name and packed a GPS tracker
within the target package. Viewed “in the light most favorable to the State,” id.
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(citation omitted), these facts further indicate a mutual concern for and interest in
the target package.
¶ 89 Moreover, the recorded phone call itself—which was not erroneously admitted,
for the reasons discussed below—constitutes additional circumstantial evidence
supporting the existence of a conspiracy. As detailed in Investigator Menzie’s search-
warrant application for Defendant’s mobile phone, a FedEx employee informed
Investigator Menzie that Marcus called FedEx to inquire about the target package’s
status, requested a return call when the package was located, and left his phone
number. In the affidavit supporting his search-warrant application, Investigator
Menzie averred that:
I called the number and spoke with “Marcus” who
confirmed the tracking number of his parcel, the address it
was going [to] and the name of the recipient. The
information he provided was the same information listed
on the [target package] intercepted. After obtaining that
information, I identified myself to him and informed him I
had his parcel in my custody. Marcus said, “F[***]” and
hung up.
¶ 90 “[T]aken collectively,” Marcus’s recorded admission to Investigator Menzie
that he sent the target package, his knowledge of its relevant details, his documented
concern for the package’s apparent failure to reach its destination, and his profane
exclamation upon learning that he was speaking with a law enforcement officer
provide strong circumstantial evidence that “point[s] unerringly to the existence of a
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conspiracy.” Chavez, ¶ 14 (citation omitted). Defendant’s argument is overruled.
2. Statement of a Co-Conspirator
¶ 91 Defendant also argues that the recorded phone-call audio was inadmissible
hearsay, which was erroneously and prejudicially admitted into evidence. We
disagree.
a. Standard of Review
¶ 92 “This Court conducts de novo review of the admission of evidence over a
hearsay objection. An erroneous admission of hearsay necessitates a new trial only if
the defendant shows that there is a reasonable possibility that without the error the
jury would have reached a different result.” State v. Roberts, 268 N.C. App. 272, 276,
836 S.E.2d 287, 291 (2019) (citations omitted), disc. review denied, 374 N.C. 271, 839
S.E.2d 350 (2020).
b. Analysis
¶ 93 Rule 801 of the North Carolina Rules of Evidence defines “hearsay” as “a
statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat.
§ 8C-1, Rule 801(c). “Hearsay is not admissible except as provided by statute” or by
the Rules of Evidence. Id. § 8C-1, Rule 802. “A statement is admissible as an exception
to the hearsay rule if it is offered against a party and it is . . . a statement by a
co[-]conspirator of such party during the course and in furtherance of the conspiracy.”
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Id. § 8C-1, Rule 801(d). The proper admission into evidence of a conspirator’s
statement against a co-conspirator “requires the State to establish that: (1) a
conspiracy existed; (2) the acts or declarations were made by a party to it and in
pursuance of its objectives; and (3) while it was active, that is, after it was formed
and before it ended.” State v. Valentine, 357 N.C. 512, 521, 591 S.E.2d 846, 854 (2003)
(citation and internal quotation marks omitted).
¶ 94 Defendant argues that the State has not satisfied any of these requirements,
primarily alleging that “[s]tatements not made between the alleged co-conspirators
do not satisfy the criteria for admitting hearsay under the co-conspirator exception.”
However, “when the State has introduced prima facie evidence of a conspiracy, the
acts and declarations of each party to it in furtherance of its objectives are admissible
against the other members regardless of their presence or absence at the time the
acts and declarations were done or uttered.” State v. Tilley, 292 N.C. 132, 138, 232
S.E.2d 433, 438 (1977). Accordingly, Defendant’s argument that a statement must be
made “between the alleged co-conspirators” in order to be admissible under the co-
conspirator exception to the hearsay rule lacks merit.
¶ 95 Further, as the trial court found in ruling on Defendant’s objection:
[I]n the light most favorable to the State, the State
established a conspiracy existed and that this statement
was made while the conspiracy was still active, that is,
after it was formed and before it was ended; that the
statements were made by a party to the conspiracy, to wit,
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Marcus Rawls or a person purporting to be Marcus Rawls;
and that it was in pursuance of its objectives in that the
declarant was attempting to ensure that the [target]
package was properly delivered.
¶ 96 After the trial court noted that it was “not aware of any requirement that the
statement must be made to another party to the conspiracy as opposed to some third
party who is not a co-conspirator[,]” the court overruled Defendant’s objection and
admitted the recording of the phone call as the statement of a co-conspirator. We
discern no error in the trial court’s ruling.
III. Conclusion
¶ 97 For the reasons stated above, including the fact that neither the initial removal
of the target package nor the drug dog sniff constituted a search or seizure implicating
Defendant’s Fourth Amendment rights and Defendant’s waiver of appellate review of
his Fourth Amendment arguments concerning the initial removal of the target
package from the conveyor belt, we affirm the trial court’s denial of Defendant’s
motion to suppress.
¶ 98 The legalization of industrial hemp, which is reported to be indistinguishable
from marijuana without quantitative chemical analysis, raises compelling legal
issues for our courts. However, we conclude that Defendant’s arguments in the
instant case are without merit. Accordingly, these arguments are overruled.
¶ 99 Similarly, Defendant’s arguments relating to the charge of conspiracy to traffic
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marijuana by transportation are unpersuasive and overruled. For all these reasons,
we conclude that Defendant received a fair trial, free from prejudicial error.
AFFIRMED IN PART; NO PREJUDICIAL ERROR IN PART.
Judges DILLON and COLLINS concur.