State v. Kelly

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1383
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
STATE OF NORTH CAROLINA
Buncombe County
v.
No. 13 CRS 1609
KEVIN CHRISTOPHER KELLY
Appeal by defendant from order entered 3 July 2013 by Judge
Jeffrey P. Hunt in Buncombe County Superior Court. Heard in the
Court of Appeals 4 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Carolyn McLain, for the State.
Don Willey for defendant-appellant.
ERVIN, Judge.
Defendant Kevin Christopher Kelly appeals from an order
placing him on probation pursuant to N.C. Gen. Stat. § 90-96based upon a jury verdict finding him guilty of possession of
drug paraphernalia and possession of marijuana. On appeal,
Defendant contends that the trial court erred by denying his
motion to dismiss for insufficiency of the evidence. After
careful consideration of Defendant’s challenges to the trial
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court’s order in light of the record and the applicable law, we
conclude that the trial court’s order should remain undisturbed.
I. Factual Background
A. Substantive Facts
On 25 January 2013, two officers of the Asheville Police
Department encountered Defendant in a parking lot. At that
time, the officers saw a man hand Defendant a cigarette, which
Defendant put in his mouth. When he saw the officers,
Defendant’s “eyes got very big, and he tossed the cigarette into
the roadway.” After the officers stopped to investigate, one of
them collected the cigarette. At trial, the officers, based
upon their training and experience, testified that the cigarette
contained marijuana. Defendant, on the other hand, testified
that visibility conditions at the time of the incident in
question were poor and that he never possessed the marijuana
cigarette described by the arresting officers.
B. Procedural History
On 25 January 2013, a citation charging Defendant with
possession of drug paraphernalia and possession of marijuana was
issued. On 18 April 2013, Judge James Calvin Hill of the
Buncombe County District Court found Defendant guilty as charged
and, after initially entering an order of conditional discharge
placing Defendant on probation pursuant to N.C. Gen. Stat. § 90-
-3-
96, entered a judgment sentencing Defendant to a term of 10 days
incarceration, with that term being suspended and Defendant
being placed on supervised probation for 12 months on the
condition that Defendant pay a fine of $75.00 and the costs and
comply with the usual terms and conditions of probation.
Defendant noted an appeal from Judge Hill’s judgment to the
Buncombe County Superior Court for a trial de novo.
The charges against Defendant came on for trial before the
trial court and a jury at the 1 July 2013 criminal session of
the Buncombe County Superior Court. On 2 July 2013, the jury
returned a verdict convicting Defendant of possession of drug
paraphernalia and possession of marijuana.1 After accepting the
jury’s verdict, the trial court entered an order of conditional
discharge pursuant to N.C. Gen. Stat. § 90-96 under which
Defendant was placed on supervised probation for a period of one
year on the condition that he pay the costs, obtain a mental
health assessment, and comply with the usual terms and
conditions of probation and that he return for a further hearing
to determine the extent to which he had complied with the terms
and conditions of probation on 7 July 2014. Defendant noted an
appeal to this Court from the trial court’s order.2
1
The jury also found Defendant not guilty of a second degree
trespass charge that had also been lodged against him.
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II. Substantive Legal Analysis
In his sole challenge to the trial court’s judgment,
Defendant contends that the trial court erred by denying his
motion to dismiss the charges that had been lodged against him
because the officers’ visual identification of the substance in
the cigarette recovered from the parking lot as marijuana was
insufficient to support a determination that he possessed drug
paraphernalia and marijuana. As Defendant candidly concedes,
however, we have previously rejected an identical argument in
State v. Johnson, __ N.C. App. __, __, 737 S.E.2d 442, 451,
mandamus petition dismissed, 366 N.C. 566, 738 S.E.2d 395(2013), on the grounds that “officers with proper training and
experience may opine that a substance is marijuana” and that
such an identification is sufficient to withstand a defendant’s
2
The extent to which an order of conditional discharge is an
appealable final judgment or an unappealable interlocutory order
was not addressed in either party’s brief and has not been
previously resolved by this Court. In order to avoid the
necessity for deciding an unaddressed jurisdictional issue and
to ensure that Defendant’s challenge to the jury’s determination
of guilt is heard and considered in a timely manner, we elect,
in the exercise of our discretion, to treat the record and
briefs as a petition for the issuance of a writ of certiorari
pursuant to N.C.R. App. P. 21(a)(1) (authorizing this Court to
grant the writ of certiorari to permit review “when no right of
appeal from an interlocutory order exists”), to grant the
petition, and to review Defendant’s challenge to the jury’s
verdicts on the merits. Anderson v. Hollifield, 345 N.C. 480,
482, 480 S.E.2d 661, 663 (1997) (stating that “we conclude that
Rule 21(a)(1) gives an appellate court the authority to review
the merits of an appeal by certiorari even if the party has
failed to file notice of appeal in a timely manner”).
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motion to dismiss a possession charge. As a result, since
Defendant’s sole challenge to the trial court’s order lacks
merit, that order should, and hereby does, remain undisturbed.
NO ERROR.
Judges ROBERT C. HUNTER and STEPHENS concur.
Report per Rule 30(e).