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State v. Davis

Court of Appeals of North Carolina

September 16, 2014

STATE OF NORTH CAROLINA
v.
BILLY RAY DAVIS

Heard in the Court of Appeals April 23, 2014.

Page 887

Jackson County. Nos. 11 CRS 51412, 51413.

Attorney General Roy Cooper, by Special Deputy Attorney General June S. Ferrell, for the State.

David L. Neal for defendant.

McCULLOUGH, Judge. Judges ELMORE and DAVIS concur.

Page 888

Appeal by defendant from judgments entered 30 May 2013 by Judge J. Thomas Davis in Jackson County Superior Court.

OPINION

McCULLOUGH, Judge.

Billy Ray Davis (" defendant" ) appeals from judgments entered upon his convictions for trafficking in methamphetamine by possession, trafficking in methamphetamine by manufacture, conspiring to traffic in methamphetamine, manufacturing methamphetamine, possession of an immediate precursor chemical to methamphetamine, and possession of drug paraphernalia. For the following reasons, we find no error.

I. Background

On 14 December 2011, a Jackson County grand jury indicted defendant on charges of trafficking in methamphetamine by possession, trafficking in methamphetamine by manufacture, conspiring to traffic in methamphetamine by manufacture, manufacturing methamphetamine, possession of an immediate precursor chemical to methamphetamine, and possession of drug paraphernalia. Defendant's case then came on for jury trial in Jackson County Superior Court on 28 May 2013, the Honorable J. Thomas Davis, Judge presiding.

The evidence offered during the presentation of the State's case tended to show the following: On 29 July 2011, Jim Henry, a senior K-9 deputy sheriff with the Jackson County Sheriff's Office, responded to an alert of possible drug activity by subjects in a small gray Dodge pickup with a white camper cover in the Greens Creek area off the south side of Highway 441. Dep. Henry located the vehicle upon arrival to the area, observed that no one was around, and proceeded down a trail at the rear of the vehicle leading into the woods along the creek. Dep. Henry recalled that the vegetation on the trail was crushed down as if someone had recently walked over it.

Approximately 20 to 30 yards down the trail, Dep. Henry heard two individuals talking and crawled to a position where he could see what was going on. From his position on the bank, Dep. Henry observed a male and a female, later identified as defendant and Keisha Maki, on a grassy area in the middle of the creek near a blanket that was covered with bags and other various items. From his position on the bank, Dep. Henry observed Maki use tongs to lower a bottle into the creek. At that time, defendant instructed Maki to " [p]ut the glasses over [her] eyes, [because she didn't] want that stuff in [her]

Page 889

eyes." Maki then removed the bottle from the creek and the bottle began smoking.

After observing defendant and Maki for approximately ten minutes, Dep. Henry retreated up the trail to call his superior officer and Lee Tritt, a Special Agent with the State Bureau of Investigation. Special Agent Tritt arrived shortly thereafter and met Dep. Henry on the trial. He and Dep. Henry then proceeded back down the trail to the area overlooking the creek to observe what was going on.

Dep. Henry and Special Agent Tritt observed defendant and Maki for approximately thirty minutes before Maki noticed them and alerted defendant. During this time, defendant and Maki were moving back and forth around the site where the blanket was laid out. Dep. Henry recalled that they were moving bottles back and forth. Special Agent Tritt testified that he became curious about a bottle sitting near the edge of the creek because it was obvious that it did not have a liquid like Coke or Sprite in it, but rather some type of solid substance.

Approximately thirty minutes after Special Agent Tritt arrived, Maki entered the creek and noticed they were being watched. At that point, Maki motioned for defendant to come over to her and alerted him of Dep. Henry and Special Agent Tritt's presence. Dep. Henry and Special Agent Tritt then came down the bank toward defendant and Maki and identified themselves as law enforcement. At that instant, Maki, who had backed out of the creek with defendant, hurriedly moved the bottle sitting at the edge of the creek into the creek near a concrete bridge support. The bottle immediately began to react with the water and started to smoke.

Special Agent Tritt was aware that the smoke from methamphetamine production was corrosive and dangerous and removed Maki from the smoky area while Dep. Henry apprehended defendant. Both defendant and Maki were taken into custody. Dep. Henry recalled that as he took defendant into custody, defendant stated several times that " [i]t wasn't me, I was at Food Lion, I wasn't making dope[,]" indicating he was aware what was going on.

After defendant and Maki were in custody, law enforcement secured the area. Among the items recovered were the following: a handbag that was found to contain a syringe and a white substance wrapped in a coffee filter, a duffle bag in which a clear two liter bottle containing white and pink granular material, gray metal pieces, and a clear liquid was found, empty boxes and blister packs of pseudoephedrine, a blister pack still containing pseudoephedrine, an empty pack of AA Energizer lithium batteries, a AA Energizer lithium battery that someone had cut the top off of and removed the lithium, iodized salt, sodium hydroxide, drain opener, funnels, tubing, coffee ...


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