State v. Cobb ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-496
Filed: 16 June 2020
Wake County, No. 14 CRS 213588, 004521
STATE OF NORTH CAROLINA
v.
STEVE LEONARD JOHNSON COBB, Defendant.
Appeal by Defendant from judgment entered 7 December 2018 by Judge Paul
C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 30
October 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Martin T.
McCracken, for the State.
James R. Parish for defendant-appellant.
MURPHY, Judge.
In this case involving assault and attempted robbery charges, the trial court’s
erroneous admission of drug field test results was not prejudicial when the test had
no connection to whether an assault occurred and Defendant was found not guilty of
the attempted robbery. The State presented overwhelming evidence the assault
occurred, and no reasonable possibility existed that a different result would have been
reached had the field test results been properly omitted. When reviewing a habitual
felon status enhancement, a defendant waives his right to challenge the indictment
for incorrect information when he does not object to a variance at trial, but rather
pleads guilty. We decline to invoke Rule 2 to permit further review.
STATE V. COBB
Opinion of the Court
BACKGROUND
On 14 June 2014, Sergeant Brian McLamb (“McLamb”) surveilled a parked car
holding Defendant and another individual. McLamb initiated a voluntary encounter
and, upon smelling marijuana, radioed for a check-in officer. He also asked
Defendant, who was smoking, about the marijuana smell. Defendant admitted he
was smoking a blunt and handed the blunt to McLamb, who placed it on top of the
car.
After the check-in officer arrived, McLamb had Defendant exit the vehicle to
search him for drugs and weapons incident to arrest.1 When McLamb discovered “a
couple thousand dollars” in “a wad of money” on Defendant and asked him about it,
Defendant fled the scene on foot, and McLamb pursued. McLamb caught Defendant,
and a wrestling match ensued, with Defendant escaping and McLamb catching
Defendant again. At one point during the scuffle, McLamb “felt a pull up on [his]
duty weapon and [his] holster,” believed Defendant was attempting to take the
weapon, and drew his taser. Defendant eventually surrendered, but transferred a
bag containing white powder from his pants to his mouth while he moved to the
ground.
1 Defendant did not object to the search at trial, and Defendant did not challenge McLamb’s
search on appeal. We do not consider its admissibility. N.C. R. App. P. 28(a) (2020) (“Issues not
presented and discussed in a party's brief are deemed abandoned.”).
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Opinion of the Court
McLamb believed Defendant had ingested cocaine, and testified regarding the
bag and his concerns as follows:
[State:] When you saw [Defendant] put [the bag] in
his mouth, what was your concern, or if you
had multiple concerns, what were they?
[McLamb:] Well, at that point, really, there's two
concerns. He's destroying evidence. And if
it's a toxic substance, I've seen people get very
sick or -- and die from ingesting a substance
like that.
Upon observing Defendant put the bag in his mouth, McLamb jumped on Defendant’s
back and squeezed his cheeks to force him to spit out the bag. During the struggle,
Defendant bit McLamb’s finger, ignored commands to stop, and bore down so hard
that he broke the skin.
After Defendant spit out the bag and was arrested, both Defendant and
McLamb went to the hospital—McLamb for injuries to his knees, elbows, wrist, and
finger, and Defendant for potential cocaine ingestion. Other officers conducted a field
test on the bag Defendant put in his mouth, which tested positive for cocaine.
The Grand Jury indicted Defendant for assault inflicting serious injury on a
law enforcement officer and attempted common law robbery. Over Defendant’s
objection, the trial court admitted evidence concerning the field test. The jury
convicted Defendant for the lesser included offense of assault on a law enforcement
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Opinion of the Court
officer inflicting physical injury, but acquitted Defendant of assault inflicting serious
injury on a law enforcement officer and attempted common law robbery.
Defendant had previous felony convictions for possession of cocaine, common
law robbery, and delivering cocaine. After the guilty verdict, Defendant pleaded
guilty to habitual felon status. The indictment incorrectly stated that one of
Defendant’s prior convictions was in Wake County Superior Court, while that prior
conviction was actually in Wake County District Court.
On appeal, Defendant argues that the admission of the field test results
constituted prejudicial error preventing a fair trial and requests a new trial.
Additionally, Defendant argues that the variance regarding the division of court
listed for one of his prior felony convictions in the indictment and in evidence was
fatal and merits remand for resentencing without the habitual felon status.
ANALYSIS
A. Field Test Results2
“The admissibility of evidence [under N.C.G.S. § 8C-1, Rule 401 (2017)] is
governed by a threshold inquiry into its relevance. In order to be relevant, the
evidence must have a logical tendency to prove any fact that is of consequence in the
case being litigated.” State v. Holmes, 822 S.E.2d 708, 720 (N.C. Ct. App. 2018)
2 While Defendant has not shown that the admission of evidence regarding the field test
results, namely evidence of drugs, prejudiced him in such a way as to prevent a fair trial on his assault
charge, we reemphasize the lack of admissibility of field test results due to concerns regarding their
reliability. State v. Carter, 237 N.C. App. 274, 281-83, 765 S.E.2d 56, 62-63 (2014).
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Opinion of the Court
(internal citations omitted), review denied, 372 N.C. 97, 824 S.E.2d 415 (2019). “Trial
court rulings on relevancy technically are not discretionary.” Id. “Whether evidence
is relevant is a question of law . . . [and] we review the trial court’s admission of the
evidence de novo.” State v. Kirby, 206 N.C. App. 446, 456, 697 S.E.2d 496, 503 (2010).
Even though we review these rulings de novo, we give “great deference on appeal” to
trial court rulings regarding whether evidence is relevant. State v. Allen, 828 S.E.2d
562, 570 (N.C. Ct. App. 2019), appeal dismissed, review denied, 373 N.C. 175, 833
S.E.2d 806 (2019). “A defendant is prejudiced . . . when there is a reasonable
possibility that, had the error in question not been committed, a different result
would have been reached at the trial out of which the appeal arises.” N.C.G.S. § 15A-
1443(a) (2019).
In this case, the State charged Defendant with assault inflicting serious injury
on a law enforcement officer and attempted common law robbery, but no charges
involving a controlled substance. The assault charge required the State to prove “(1)
[Defendant] assaulted the victim; (2) serious bodily injury occurred; (3) the victim was
a law enforcement officer performing his official duties at the time of the assault; and
(4) [Defendant] knew or had reasonable grounds to know that the alleged victim was
a law enforcement officer.” State v. Burwell, 256 N.C. App. 722, 727, 808 S.E.2d 583,
589 (2017) (citing N.C.G.S. § 14-34.7(a) (2015)). The attempted common law robbery
charge required the State to prove “(1) [D]efendant’s specific intent to commit the
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Opinion of the Court
crime of common law robbery, and (2) a direct but ineffectual act by [D]efendant
leading toward the commission of this crime.” State v. Whitaker, 307 N.C. 115, 118,
296 S.E.2d 273, 274 (1982). The field test purporting to confirm the existence of a
controlled substance was conducted after the acts for which the Grand Jury indicted
Defendant: assault and attempted common law robbery.
The field test conducted after the charged assault and attempted common law
robbery was not relevant to prove any fact that is of consequence concerning (1) the
occurrence of an assault; (2) whether serious bodily injury resulted; (3) whether
McLamb was performing his official duties at the time of the assault; (4) whether
Defendant knew or had reason to know McLamb was a law enforcement officer; (5)
whether Defendant had the specific intent to commit the crime of common law
robbery; or (6) whether Defendant committed a direct but ineffectual act leading
toward the commission of a common law robbery when he allegedly grabbed for
McLamb’s gun.
The field test conducted after the charged assault and attempted common law
robbery did not help to explain the officers’ investigative actions before or during the
events underlying the charges. While evidence regarding the officer’s perceptions of
the bag and its contents before and during the assault was relevant to explain
McLamb’s actions, evidence regarding whether the contents of the bag actually were
a controlled substance McLamb attempted to prevent Defendant from ingesting and
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STATE V. COBB
Opinion of the Court
potentially destroying was not. Evidence regarding the presence of the bag
containing white powder was properly admitted, but the testimony regarding the field
test should have been excluded, not limited via judicial instruction. See State v.
Ward, 364 N.C. 133, 142-43 n.4, 694 S.E.2d 738, 744 n.4 (2010) (noting for support
other jurisdictions’ exclusion of field test and visual inspection evidence when “never
verified by further laboratory testing”).
Although the field test results were irrelevant to this case, and the trial court
erred in admitting those results into evidence, such error was not prejudicial.
Defendant bears the burden “to show both error and that he was prejudiced by [the]
admission” of the improperly admitted evidence. State v. Gappins, 320 N.C. 64, 68,
357 S.E.2d 654, 657 (1987). To demonstrate such prejudice, Defendant must show
that “there is a reasonable possibility that, had the error in question not been
committed, a different result would have been reached at the trial . . . .” State v.
Barrow, 216 N.C. App. 436, 442, 718 S.E.2d 673, 677 (2011) (quoting N.C.G.S. § 15A-
1443(a) (2009)) aff’d, 366 N.C. 141, 727 S.E.2d 546 (mem.) (2012).
Defendant does not carry his burden to demonstrate that he was prejudiced by
the admission; specifically, no “reasonable possibility [exists] that, had [the
erroneously admitted field test results] not been [admitted], a different result would
have been reached at the trial . . . .” Id. In fact, Defendant’s case did not include a
controlled substance charge. The trial court improperly admitted the field test
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Opinion of the Court
evidence, which indicated the presence of cocaine, in a case where Defendant was
convicted of assault on a law enforcement officer inflicting physical injury. See State
v. Carter, 237 N.C. App. 274, 283-84, 765 S.E.2d 56, 63-64 (2014). Whether the drug
field test performed after the events underlying the assault charge reliably confirmed
the presence of cocaine had no connection to whether Defendant actually assaulted
McLamb. To that end, the State presented overwhelming evidence to support
Defendant’s conviction of assault on a law enforcement officer inflicting physical
injury.3 See id. at 285-86, 765 S.E.2d at 64. The evidence of the officer’s encounter
with Defendant, Defendant fleeing the officer, Defendant and the officer wrestling,
Defendant shoving the bag into his mouth, Defendant biting the officer, and the
officer’s resulting injuries—“[c]ut to elbow and wrist, bit his finger and broke the
skin,” as alleged in the indictment—was sufficient to prove Defendant committed
assault on a law enforcement officer inflicting physical injury.
On appeal, Defendant contends our prior holding in Moctezuma is controlling
on the issue of prejudice in this case, arguing that “[D]efendant suffered the same
prejudice as the defendant in [that case] . . . [and] the same logic applies.” State v.
Moctezuma, 141 N.C. App. 90, 92-93, 539 S.E.2d 52, 54-55 (2000). We disagree.
3 Defendant was acquitted of attempted common law robbery and assault inflicting serious
injury on a law enforcement officer, making it impossible for the erroneous admission of the field test
evidence to have prejudiced him on those charges.
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STATE V. COBB
Opinion of the Court
In Moctezuma, the trial court erroneously admitted irrelevant evidence of a
large amount of drugs found in the defendant’s shared residence when the defendant
was charged with trafficking of drugs in a van. Id. at 92-93, 539 S.E.2d at 54-55. We
found that such an admission was not only irrelevant, but was prejudicial, because
“the jury could have easily concluded, given the value and quantity of the seized
drugs, . . . that [the] defendant was a high level drug trafficker.” Id. at 95, 539 S.E.2d
at 56. Unlike the prejudicial effect of evidence of a large amount of irrelevant drugs
on a drug trafficking charge in Moctezuma, here Defendant’s case centered on an
assault charge, did not include any controlled substance charge, and the irrelevant
and erroneous evidence was the presence of a controlled substance indicated in a field
test. Whether the field test reliably showed the presence of cocaine would not affect
a determination of whether Defendant assaulted McLamb or the extent of his
injuries. Here, the erroneous field test evidence was not prejudicial like the
irrelevant drug evidence admitted in Moctezuma.
A reasonable possibility does not exist that, had the erroneously admitted field
test results not been admitted, a different result would have been reached at trial.
Defendant was not exposed to prejudicial error.
B. Habitual Felon Status Indictment Variance
“In order to preserve a fatal variance argument for appellate review, a
defendant must specifically state at trial that a fatal variance is the basis for his
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Opinion of the Court
motion to dismiss.” State v. Scaturro, 253 N.C. App. 828, 833-34, 802 S.E.2d 500, 505
(2017) (citing State v. Hooks, 243 N.C. App. 435, 442, 777 S.E.2d 133, 139 (2015);
State v. Curry, 203 N.C. App. 375, 384, 692 S.E.2d 129, 137 (2010)). However, instead
of moving to dismiss the habitual felon status enhancement, Defendant pleaded
guilty to attaining habitual felon status. Defendant’s guilty plea “waived his right to
challenge the [habitual felon] indictment on the ground that the information in the
indictment was incorrect.” State v. McGee, 175 N.C. App. 586, 588, 623 S.E.2d 782,
784 (2006).
Despite his failure to preserve the variance issue for appeal, Defendant argues
that we should invoke Rule 2 and review this issue, because “[i]n the instant case the
injustice is manifest because the variance established an invalid habitual felon
indictment and thus [Defendant] was sentenced to a punishment grossly
disproportionate to that to which he was statutorily authorized.” While we have the
ability under Rule 2 of the Rules of Appellate Procedure to allow review, we only
apply it “in exceptional circumstances, [involving] significant issues of importance in
the public interest or to prevent injustice which appears manifest to the Court and
only in such instances.” State v. Campbell, 369 N.C. 599, 603, 799 S.E.2d 600, 602
(2017); see also State v. Diaz, 256 N.C. App. 528, 534, 808 S.E.2d 450, 455 (2017)
(holding that we may apply Rule 2 “based on the specific circumstances [of the] case
and in order to avoid the possibility of a manifest injustice”) aff’d in relevant part and
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Opinion of the Court
rev’d in part on other grounds, 372 N.C. 493, 831 S.E.2d 532 (2019); N.C. R. App. P.
2 (2020). Defendant does not present any argument or evidence that his conviction
in Wake County District Court did not occur. Here, the indictment variance of the
division of the court of conviction is not an exceptional circumstance affecting
significant issues of importance in the public interest, and does not constitute
manifest injustice to Defendant, particularly when the indictment correctly named
the relevant charge, showed the correct dates of offense and conviction, the correct
county, and listed the correct file number.4 See generally N.C.G.S. § 14-7.3 (2019).
We decline to invoke Rule 2 to reach the variance issue presented by Defendant and
accordingly find no error. McGee, 175 N.C. App. at 588, 590, 623 S.E.2d at 784-85
(issuing a mandate of “NO ERROR” when the defendant pleaded guilty and “waived
his right to challenge the [habitual felon] indictment on the ground that the
information in the indictment was incorrect”).
CONCLUSION
The trial court erroneously admitted irrelevant evidence of field test results in
an assault and attempted robbery case, but such evidence did not prejudice
Defendant. Defendant failed to preserve the variance issue, and we decline to invoke
Rule 2 to permit review under the circumstances of this case.
NO PREJUDICIAL ERROR IN PART; NO ERROR IN PART.
4The indictment indicated file number 11 CRS 202645, whereas the judgment was file number
11 CR 202645.
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STATE V. COBB
Opinion of the Court
Judges STROUD and ZACHARY concur.
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