State v. McCrorey ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-592
Filed 19 December 2023
Cabarrus County, No. 21CRS51196
STATE OF NORTH CAROLINA
v.
RONALD MCCROREY, Defendant.
Appeal by defendant from judgment entered 17 November 2022 by Judge
Martin B. McGee in Cabarrus County Superior Court. Heard in the Court of Appeals
15 November 2023.
Attorney General Joshua H. Stein, by Assistant Attorney General Justin Isaac
Eason, for the State.
Sarah Holladay for defendant-appellant.
FLOOD, Judge.
Ronald McCrorey (“Defendant”) appeals his conviction for Death by
Distribution, arguing the trial court erred when it (1) denied his motion to dismiss
and (2) improperly admitted Rule 404(b) evidence. For the reasons discussed below,
we hold the trial court did not err.
I. Facts and Procedural Background
In March 2020, Michelle Hooper (“Michelle”) returned home to live with her
mother, Lisa Hooper (“Ms. Hooper”), after having spent a few months at a residential
drug treatment center in Charlotte, North Carolina. In an effort to keep Michelle
STATE V. MCCROREY
Opinion of the Court
away from heroin and cocaine, Ms. Hooper imposed strict rules: curfews were to be
observed, random drug tests were to be performed, and substance abuse group
meetings were to be attended via Zoom. Ms. Hooper feared that Michelle returning
home to her “former using area” might trigger a relapse.
On the evening of 24 March 2020, Michelle attended an Alcoholics Anonymous
meeting on Zoom from 7:00 p.m. until 8:00 p.m. At 9:33 p.m., Michelle sent a text
message to her childhood friend, Kayla Wood (“Kayla”), saying “[s]et your alarm for
830. I’ll be there at 9am and leave by 1:30. And like I said I wanna [sic] buy some
crack[.]”
The next morning, Michelle left home and told Ms. Hooper that she had a
doctor’s appointment but would return home around 1:00 p.m. Michelle did not have
a doctor’s appointment—instead, Michelle drove to the hotel room where Kayla was
staying. Upon arrival, Michelle gave Kayla fifty dollars with the understanding that
the money would be used to buy crack cocaine and heroin. Approximately fifteen
minutes later, Defendant arrived at the hotel, and Kayla met him downstairs while
Michelle waited in Kayla’s hotel room. Kayla paid Defendant one hundred dollars for
one gram of crack cocaine and one gram of heroin, which were to be split between
Kayla and Michelle. The drugs purchased from Defendant came in four separate
baggies, each containing one half gram of a substance Michelle and Kayla believed to
be either crack cocaine or heroin. After purchasing the drugs, Kayla went back to her
hotel room, where she gave Michelle two baggies—one containing crack cocaine and
-2-
STATE V. MCCROREY
Opinion of the Court
one containing heroin. Michelle and Kayla each did a small amount of heroin from
Kayla’s baggie and smoked crack cocaine from each of their respective baggies. From
there, Kayla and Michelle went to a parking lot and smoked more crack cocaine.
Michelle then dropped Kayla off at a park and drove back home so as not to break the
curfew imposed by Ms. Hooper.
Michelle arrived back home and spent some time with her family before going
to a church gathering with Ms. Hooper. After leaving the church gathering, Michelle
and Ms. Hooper returned home and went to bed.
The following morning on 26 March 2020, Ms. Hooper awoke at 6:00 a.m. and
noticed a light on in Michelle’s room. Speaking through the door, Michelle told Ms.
Hooper that she had a headache and was going back to bed. Ms. Hooper went on with
her morning, left the house to run errands, and eventually returned at approximately
noon. When she returned home, Ms. Hooper noticed the light in Michelle’s room was
still on. When Ms. Hooper opened the door, she found Michelle doubled over,
deceased, with an address book open to the contact information for Kayla on the bed
next to her.
Ms. Hooper immediately called 911. Upon arriving at the home, officer Dallas
Hurley (“Officer Hurley”) went into Michelle’s room where he found her with a
tourniquet around her arm and several needles in the room. A second officer,
Sergeant Christopher Gorman (“Sergeant Gorman”) secured the scene. Sergeant
Gorman collected four empty baggies from Michelle’s room. No drugs were recovered
-3-
STATE V. MCCROREY
Opinion of the Court
from Michelle’s room or car. The four empty baggies found in Michelle’s room were
not sent off for lab testing.
When the police later located Kayla, she was “spaced out” and “nodding off” in
front of a convenience store. When the officers told Kayla about Michelle’s death,
Kayla began crying and explained that she and Michelle had purchased drugs from
Defendant at a hotel the day before. Kayla then consented to the officers seizing her
cell phone. A review of the data on Kayla’s cell phone revealed text messages sent on
25 March 2020 between Kayla and Defendant, setting up the sale of drugs.
After Michelle’s death, forensic pathologist Dr. Jonathan Privette (“Dr.
Privette”) performed an autopsy and sent tissue samples to Dr. Justin Brower (“Dr.
Brower”), a forensic toxicologist, for testing. When the results of the toxicology report
were returned, they showed the presence of benzoylecgonine, which is a metabolite of
cocaine, and fentanyl in Michelle’s blood. Both Dr. Privette and Dr. Brower opined
that the level of fentanyl in Michelle’s blood was within the fatal range, and given the
totality of the circumstances, Michelle’s death was consistent with a fentanyl
overdose. Both doctors also agreed, however, that the level of cocaine metabolites in
Michelle’s system were, by themselves, high enough to be fatal. Notably absent from
the toxicology report was the presence of heroin, which was one of the two substances
Michelle and Kayla believed they had purchased from Defendant.
On 11 April 2021, Defendant’s trial began in Cabarrus County Superior Court.
At trial, several witnesses were called to testify including Officer Hurley, Sergeant
-4-
STATE V. MCCROREY
Opinion of the Court
Gorman, Dr. Privette, Dr. Brower, Ms. Hooper, and Kayla. Of particular note on
appeal is the testimony given by Kayla regarding previous drug sale transactions she
had with Defendant. After a lengthy exchange between counselors and the trial judge
outside the presence of the jury, the trial court allowed Kayla to testify regarding
prior drug sales involving Defendant as evidence under Rule 404(b) to show
Defendant’s intent, identity, and common scheme or plan.
On direct examination, when asked if she ever “put any other individuals in
contact with [] Defendant for the purpose of buying drugs,” Kayla answered “[y]eah.”
Additionally, Kayla testified about the two or three times where she and Michelle
purchased drugs from Defendant, and she indicated that the sale on 25 March was
“generally consistent with how [they] had previously purchased drugs from []
Defendant.”
At the conclusion of the trial, a jury found Defendant guilty of Death by
Distribution. Defendant was sentenced to seventy to ninety-six months’
imprisonment. Defendant gave an oral notice of appeal following the verdict.
II. Jurisdiction
This case is properly before this Court as an appeal from a final judgment of a
superior court pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a) (2021).
III. Analysis
On appeal, Defendant argues the trial court made two errors: first, when it
denied his motion to dismiss; and second, when it admitted evidence of his prior drug
-5-
STATE V. MCCROREY
Opinion of the Court
sales under Rule 404(b) of the North Carolina Rules of Evidence. We take the
analysis of each argument in turn.
A. Motion to Dismiss
Defendant begins by arguing the trial court erred when it denied his motion to
dismiss because the State failed to present substantial evidence that (1) he sold
fentanyl, rather than heroin, to Kayla; (2) fentanyl was the cause of Michelle’s death;
and (3) the drugs he sold were the proximate cause of Michelle’s death. For the
reasons discussed below, we disagree.
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). “Upon defendant’s
motion for dismissal, the question for the [trial c]ourt is whether there is substantial
evidence (1) of each essential element of the offense charged, or of a lesser offense
included therein, and (2) of defendant’s being the perpetrator of such offense.” State
v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. Barnes, 334
N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). Evidence is considered “substantial” if it
would be relevant and “necessary to persuade a rational juror to accept a conclusion.”
State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781 (2002). Finally,
“in ruling on a motion to dismiss[,] the trial court is to consider the evidence in the
light most favorable to the State.” State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d
649, 652 (1982).
-6-
STATE V. MCCROREY
Opinion of the Court
In our present case, Defendant was charged with the unlawful, willful, and
felonious sale of fentanyl, the ingestion of which caused the death of Michelle. Under
North Carolina’s Death by Distribution statute, a person may be found guilty if all of
the following requirements are met:
(1) the person unlawfully sells at least one certain
controlled substance; (2) the ingestion of the certain
controlled substance or substances causes the death of the
user; (3) the commission of the offense in subdivision (1) of
this subsection was the proximate cause of the victim’s
death; and (4) the person did not act with malice.
N.C. Gen. Stat. § 14-18.4(b) (2021). Under our de novo standard of review, we now
consider each of Defendant’s three arguments regarding why the trial court erred in
denying his motion to dismiss, construing all the evidence in the light most favorable
to the State.
First, Defendant contends the State failed to present substantial evidence that
he sold fentanyl to Kayla, rather than heroin. Specifically, Defendant argues that
“[t]he State assumed from the absence of heroin in [Michelle’s] blood on [26 March]
that what she purchased on [25 March] was fentanyl.” In essence, Defendant argues
that assumptions cannot be substantial evidence. What Defendant describes as an
assumption, however, can more appropriately be called circumstantial evidence—
evidence which “may withstand a motion to dismiss and support a conviction when
[it] does not rule out every hypothesis of innocence.” State v. Stone, 323 N.C. 447,
452, 373 S.E.2d 430, 433 (1988). “Circumstantial evidence is proof of a chain of facts
-7-
STATE V. MCCROREY
Opinion of the Court
and circumstances” and need only give rise to a reasonable inference of guilt in order
for it to be admitted to the jury. State v. Wilkie, 289 N.C. App. 101, 103, 887 S.E.2d
485, 486 (2023) (citing State v. Lee, 213 N.C. App. 392, 396, 713 S.E.2d 174, 177
(2011)). As long as the record contains actual evidence, either direct or
circumstantial, that supports a reasonable inference of the defendant’s guilt, a motion
to dismiss should be denied. State v. Golder, 374 N.C. 238, 250, 839 S.E.2d 782, 790
(2020) (clarifying that substantial evidence may be justified by direct or
circumstantial evidence).
Here, the uncontroverted facts in the Record show that: Kayla requested
Defendant sell her one gram of heroin and one gram crack cocaine, to be split between
Kayla and Michelle; Michelle ingested the drugs sold by Defendant; Michelle was
found dead the following morning; and the only drugs found in Michelle’s toxicology
report were cocaine and fentanyl. Viewed in the light most favorable to the State,
this evidence, while circumstantial, could be enough to “persuade a rational juror to
accept a conclusion” that the substance sold by Defendant was fentanyl, not heroin.
See Mann, 355 N.C. at 301, 560 S.E.2d at 781.
Next, Defendant argues there was not substantial evidence that fentanyl was,
in fact, the cause of Michelle’s death. The Record confirms Michelle had both cocaine
and fentanyl in her system. Likewise, the Record shows that Dr. Privette stated
Michelle had enough cocaine in her system to be lethal on its own. Those two facts,
however, are dwarfed by the overwhelming direct evidence from both medical experts
-8-
STATE V. MCCROREY
Opinion of the Court
and the conditions observed by law enforcement responding to the scene of Michelle’s
death: the tourniquet around Michelle’s arm; the needles in Michelle’s room; the four
empty baggies; the toxicology report; and the autopsy revealing lethal amounts of
both cocaine and fentanyl in Michelle’s system.
While the evidence does not foreclose the possibility that fentanyl may not have
been the sole cause of Michelle’s death, there is ample evidence to support a
conclusion that it was, in fact, fentanyl that killed Michelle. When this evidence is
viewed in the light most favorable to the State, we hold it is enough to survive a
motion to dismiss. See Golder, 374 N.C. at 250, 839 S.E.2d at 790.
Finally, Defendant argues the State failed to present substantial evidence of
the element of proximate cause, which is required under the Death by Distribution
statute. Defendant posits that Michelle’s decision to consume, at once, all of the drugs
she had purchased, broke the causal chain because Defendant could not have
reasonably foreseen Michelle would do such a thing.
Foreseeability is an essential element of proximate cause.
This does not mean that the defendant must have foreseen
the injury in the exact form in which it occurred, but that,
in the exercise of reasonable care, the defendant might
have foreseen that some injury would result from his act or
omission, or that consequences of a generally injurious
nature might have been expected.
State v. Powell, 336 N.C. 762, 771–72, 446 S.E.2d 26, 31 (1994) (quoting Williams v.
Boulerice, 268 N.C. 62, 68, 149 S.E.2d 590, 594 (1966)) (internal citations omitted).
“[T]he question of whether [a] defendant’s conduct was the proximate cause of death
-9-
STATE V. MCCROREY
Opinion of the Court
is a question for the jury.” State v. Noble, 226 N.C. App. 531, 535, 741 S.E.2d 473,
478 (2013) (quoting State v. Bailey, 184 N.C. App. 746, 749, 646 S.E.2d 837, 839
(2007)).
Here, Defendant’s argument that Michelle’s consumption of all the drugs she
had purchased from him was not reasonably foreseeable is not only disingenuous, it
misses the mark. To survive a motion to dismiss, the State must present the evidence
“necessary to persuade a rational juror to accept a conclusion.” Mann, 355 N.C. at
301, 560 S.E.2d at 781. Our de novo review of the Record reveals evidence that
Michelle had obtained drugs sold by Defendant, Michelle had ingested drugs sold by
Defendant, and Defendant knew the drugs he was selling to Kayla were to be shared
between Kayla and Michelle. This evidence is enough to survive a motion to dismiss
and submit the question of proximate cause to the jury. See Noble, 226 N.C. App. at
535, 741 S.E.2d at 478.
Viewed in the light most favorable to the State, the evidence in the Record was
enough to persuade a rational juror that Defendant might not be innocent of the crime
charged. Because the evidence presented did not “rule out every hypothesis of
innocence,” we hold the trial court did not err when it denied Defendant’s motion to
dismiss. Stone, 323 N.C. at 452, 373 S.E.2d at 433; see Mann, 355 N.C. at 301, 560
S.E.2d at 781.
B. Rule 404(b)
- 10 -
STATE V. MCCROREY
Opinion of the Court
Finally, Defendant argues the trial court committed a prejudicial error when
it allowed testimonial evidence that he sold drugs on prior occasions. Specifically,
Defendant argues the prior sales to Kayla were not sufficiently similar to show intent,
identity, and a common plan or scheme. We disagree.
Whether Rule 404(b) evidence was improperly admitted is a question of law
reviewed de novo. State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159
(2012). This Court reviews whether Rule 404(b) evidence should have nonetheless
been excluded under Rule 403 for abuse of discretion. State v. Al-Bayyinah, 359 N.C.
741, 747, 616 S.E.2d 500, 506 (2005). An error is prejudicial and requires a new trial
if “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. Gen. Stat. § 15A-1443 (2021).
Under Rule 404(b), evidence of a defendant’s other crimes, wrongs, or acts, may
be admissible as proof of intent, identity, or a common scheme or plan. N.C. Gen.
Stat. § 8C-404(b) (2021). Generally, Rule 404(b) is considered a rule of inclusion. See
State v. Coffey, 326 N.C. 268, 278, 389 S.E.2d 48, 54 (1990). This evidence, however,
is barred “if its probative value is substantially outweighed by the danger of unfair
prejudice.” N.C. Gen. Stat. § 8C-403 (2021). In reviewing a trial court’s
determination under Rule 403, this Court will overturn the trial court only if the trial
court’s ruling was “so arbitrary that it could not have been the result of a reasoned
- 11 -
STATE V. MCCROREY
Opinion of the Court
decision.” State v. Thomas, 268 N.C. App. 121, 135, 834 S.E.2d 654, 665 (2019)
(quoting State v. Hagans, 177 N.C. App. 17, 23, 628 S.E.2d 776, 781 (2006)).
“In drug cases, evidence of other drug violations is often admissible to prove
many of the purposes under Rule 404(b).” State v. Williams, 156 N.C. 661, 663–64,
577 S.E.2d 143, 145 (2003). In order to show intent or motive, evidence of the prior
act must “‘pertain to the chain of events explaining the context, motive, and set-up of
the crime’ and ‘form an integral and natural part of an account of the crime . . .
necessary to complete the story of the crime for the jury.’” State v. White, 349 N.C.
535, 552, 508 S.E.2d 253, 264 (1998) (quoting State v. Agee, 326 N.C. 542, 548, 391
S.E.2d 171, 174-75 (1990)). Additionally, “temporal and geographic proximity” as
well as the aid of an accomplice are factors that may tend to show both identity and
a common plan or scheme under Rule 404(b). Thomas, 268 N.C. App. at 135, 834
S.E.2d at 664–65.
Here, our de novo review of the Record reveals the trial court engaged in a
lengthy analysis regarding the admissibility of Kayla’s testimony regarding prior
drug sales involving Defendant. Testimony about previous transactions in which
Defendant sold drugs to Kayla and Michelle demonstrates not only the common plan
or scheme of Defendant’s drug sales, but also his intent when transacting with Kayla
on 25 March 2020. See White, 349 N.C. at 552, 508 S.E.2d at 264. Additionally,
Kayla’s testimony that she put individuals in contact with Defendant for the purpose
- 12 -
STATE V. MCCROREY
Opinion of the Court
of buying drugs from him is evidence that tends to confirm Defendant’s identity. See
Thomas, 268 N.C. App. at 135, 834 S.E.2d at 664–65.
Given the propriety of the testimonial evidence under Rule 404(b), the trial
court did not err when it allowed the inclusion of Kayla’s testimony. See N.C. Gen.
Stat. § 15A-1443. Further, considering the copious amount of evidence showing
Defendant sold drugs to Kayla and Michelle, it cannot be said that the probative value
of Kayla’s testimony showing Defendant’s intent, common plan or scheme, and
identity was outweighed by a danger of unfair prejudice. See N.C.R. Evid. 403. For
those reasons, we hold the trial court neither abused its discretion nor committed a
prejudicial error when it allowed Kayla’s testimony regarding prior drug sales
involving Defendant.
IV. Conclusion
For the aforementioned reasons, we hold the trial court did not err when it
denied Defendant’s motion to dismiss; further, the trial court did not commit
prejudicial error when it allowed evidence of his prior drug sales under Rule 404(b).
NO ERROR.
Judges CARPENTER and GORE concur.
- 13 -