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State v. Osborne

Supreme Court of North Carolina

August 16, 2019

STATE OF NORTH CAROLINA
v.
SHELLEY ANNE OSBORNE

          Heard in the Supreme Court on 29 May 2019

         On discretionary review pursuant to N.C. G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 821 S.E.2d 268 ( N.C. Ct. App. 2018), vacating in part and finding no error in part in judgments entered on 21 February 2017 by Judge Edwin G. Wilson, Jr. in Superior Court, Randolph County. Heard in the Supreme Court on 29 May 2019 in session in the State Capitol Building in the City of Raleigh.

          Joshua H. Stein, Attorney General, by Derrick C. Mertz, Special Deputy Attorney General, for the State-appellant.

          Meghan Adelle Jones for defendant-appellee.

          ERVIN, JUSTICE.

         The issue before the Court in this case is whether the Court of Appeals erroneously determined that the trial court erred by denying defendant Shelley Anne Osborne's motion to dismiss a charge of possession of heroin for insufficiency of the evidence. After careful consideration of the record in light of the applicable law, we reverse the decision of the Court of Appeals and remand this case to the Court of Appeals for consideration of defendant's remaining challenge to the trial court's judgment.

         I Factual Background

         A. Substantive Facts

         On 17 November 2014, officers of the Archdale Police Department responded to a call emanating from a local Days Inn hotel, in which they found defendant; a second woman; and defendant's two children, who appeared to be approximately four and five years old. According to Officer Jeffrey Harold Allred, the Archdale Days Inn is a place where "it's easier for people that want to do those types of things -prostitution, drugs - to - to get a room" given the hotel's cheap rates. Officer Jeremy Paul Flinchum testified that he had seen heroin, which he described as a grayish-tan or white rock, in the past and that he had responded to eight to ten heroin overdose calls during his law enforcement career.

         After arriving at the Days Inn, Officer Flinchum found defendant, who was "unresponsive," "turning blue" around her face and lips, and having difficulty breathing, in a hotel room bathroom. Upon regaining consciousness, defendant "confirmed] to [Officer Flinchum] that she had ingested heroin." According to Officer Flinchum, investigating officers found "a syringe that had been thrown over the balcony into the parking lot"; syringes in the hotel room's refrigerator; two spoons, which are objects "used in part of the process of making the rock into a fluid substance to introduce to the body," one of which had a "residue"; and "some heroin," which took a "rock form," had "a white, grayish color," and reacted positively when field-tested for the presence of heroin. Similarly, Officer Allred testified, without objection, that the substance seized from defendant's hotel room appeared to be heroin and that paraphernalia like that discovered in defendant's hotel room was typically used to ingest heroin. Officer Phillip Patton Love also testified, without objection, that, following his entry into defendant's hotel room, he collected "the rock heroin" that was found at the scene and that syringes and burnt spoons are "normal stuff you see when we . . . show up at overdoses that are dealing with heroin." Officer Flinchum conducted a second field test of the substance found in defendant's hotel room in the presence of the jury and testified, without objection, that the test was positive for the presence of heroin.

         B. Procedural History

         On 14 September 2015, the Randolph County grand jury returned bills of indictment charging defendant with possession of heroin and two counts of misdemeanor child abuse. The charges against defendant came on for trial before the trial court and a jury at the 20 February 2017 criminal session of the Superior Court, Randolph County.

         At the close of the State's case, defendant unsuccessfully moved to dismiss the heroin possession charge for insufficiency of the evidence, arguing, in part, that the State was required, in accordance with this Court's decision in State v. Ward, 364 N.C. 133, 147, 694 S.E.2d 738, 747 (2010), to establish the identity of the substance that defendant allegedly possessed using a chemical test and that "a visual inspection is not enough" to support a determination that the substance in question was heroin. After resting without presenting any evidence, defendant renewed her dismissal motion, which the trial court again denied.

         On 21 February 2017, the jury returned verdicts finding defendant guilty as charged. Based upon the jury's verdicts, the trial court entered a judgment sentencing defendant to a term of six to seventeen months imprisonment based upon her conviction for possessing heroin and a second judgment sentencing defendant to a consecutive term of sixty days imprisonment based upon her consolidated convictions for misdemeanor child abuse. However, the trial court suspended defendant's sentences for a period of twenty-four months and placed defendant on supervised probation subject to the usual terms and conditions of probation and the special condition that defendant participate in drug treatment. Defendant noted an appeal to the Court of Appeals from the trial court's judgments.

         In seeking relief from the trial court's judgments before the Court of Appeals, defendant contended, among other things, that the trial court had erred by denying her motion to dismiss the heroin possession charge on the grounds that the State had failed to present sufficient evidence to show that the substance that defendant allegedly possessed was heroin.[1] State v. Osborne, 821 S.E.2d 268, 270 ( N.C. Ct. App. 2018). In determining that "the State's evidence did not establish beyond a reasonable doubt that the seized substance was heroin," id. at 272 (citing Ward, 364 N.C. at 147, 694 S.E.2d at 747), the Court of Appeals held that the State was required under Ward to establish the identity of controlled substances using "some form of scientifically valid chemical analysis" and that defendant could not be properly convicted of heroin possession in the absence of such evidence, id. at 269-70 (quoting Ward, 364 N.C. at 147, 694 S.E.2d at 747). Because defendant "did not identify the seized substance as heroin" and, instead, "told the officers that she had ingested heroin," the Court of Appeals held that this case was distinguishable from cases upholding controlled substance-related convictions based upon the defendant's admission to or presentation of evidence concerning the identity of the substance in question. Id. at 271 (describing State v. Nabors, 365 N.C. 306, 718 S.E.2d 623 (2011), and State v. Williams, 367 N.C. 64, 744 S.E.2d 125 (2013), as holding "that a defense witness's in-court testimony identifying a substance as cocaine was sufficient to overcome a motion to dismiss even in the absence of forensic analysis," and describing State v. Ortiz-Zape, 367 N.C. 1, 743 S.E.2d 156 (2013), as holding "that an officer's testimony concerning the defendant's out-of-court identification of the substance as cocaine, combined with the officer's own testimony that the substance appeared to be cocaine, was sufficient to survive a motion to dismiss"). The Court of Appeals observed that it had attempted "to synthesize this line of cases into a coherent rule of law" in State v. Bridges, 810 S.E.2d 365 ( N.C. Ct. App.), disc. rev. denied, 371 N.C. 339, 813 S.E.2d 856 (2018), in which a police officer's unobjected to testimony that the defendant had made an extrajudicial admission that she had "a bagg[ie] of meth hidden in her bra" and that he had located such a baggie in her bra sufficed to support the denial of a motion to dismiss for insufficiency of the evidence. For this reason, the Court of Appeals expressed its "reluctan[ce] to further expand the Bridges holding to apply in cases where the defendant did not actually identify the seized substance" given the likelihood that such a holding would "eliminate the need for scientifically valid chemical analysis in many - perhaps most - drug cases" and undermine this Court's decision in Ward. Osborne, 821 S.E.2d at 271. Employing this logic, [2] the Court of Appeals held that, given the State's concession that it had failed to present evidence of a "scientifically valid chemical analysis identifying the seized substance as heroin," the State had not "establish[ed] beyond a reasonable doubt that the seized substance was heroin" and that the trial court had erred by denying defendant's motion to dismiss for insufficiency of the evidence. Id. at 272 (citing Ward, 364 N.C. at 147, 694 S.E.2d at 747). As a result, the Court of Appeals vacated the trial court's judgment stemming from defendant's heroin possession conviction. Id. This Court granted the State's petition seeking discretionary review of the Court of Appeals' decision.

         II. Substantive Legal Analysis

         In seeking to persuade us to reverse the Court of Appeals' decision, the State argues that, had the Court of Appeals viewed the admitted evidence in the light most favorable to the State, as decisions such as State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781 (2002), and State v. Robbins, 309 N.C. 771, 774-75, 309 S.E.2d 188, 190 (1983), require, it would have determined that the field "tests correctly and chemically confirmed the substance's identity as heroin." In the State's view, the Court of Appeals "ignore[d] the field tests" and violated a "long standing maxim," articulated by this Court in State v. Vestal, 278 N.C. 561, 567, 180 S.E.2d 755, 760 (1971), that courts consider "incompetent evidence which has been admitted . . . as if it were competent" in determining the sufficiency of the evidence to support a defendant's conviction. Relying upon State v. Lane, 365 N.C. 7, 27, 707 S.E.2d 210, 223 (2011), and State v. McCraw, 300 N.C. 610, 618-19, 268 S.E.2d 173, 178 (1980), the State contends that defendant's failure to object to the admission of the field tests at trial rendered the results of those tests "properly considered by the jury" and relieved the State of any need to show that the tests were "a sufficiently valid or reliable method of identifying heroin." According to the State, it "did not dispute whether - let alone concede that - a chemical field test for the presence of heroin was not a scientifically valid chemical analysis," as it "had no need to do so."

         In addition, the State contends that, even if the field tests did not, standing alone, suffice to identify the substance that defendant allegedly possessed, the evidence, when viewed in its entirety, "was nevertheless sufficient to establish the substance's identity as heroin." In support of this assertion, the State notes that Ward addressed the issue of the admissibility of evidence concerning the identity of a controlled substance rather than the sufficiency of the evidence to support a conviction and is not, for that reason, relevant to the issue that is before the Court in this case. On the contrary, the State asserts that the sufficiency of the evidence to establish the identity of the substance that defendant allegedly possessed should be decided based upon our decision in Nabors, 365 N.C. at 313, 718 S.E.2d at 627, in which the testimony of one of the defendant's witnesses identifying the substance that the defendant allegedly possessed with the intent to sell or deliver as cocaine sufficed to preclude allowance of a motion to dismiss for insufficiency of the evidence. In the State's view, defendant's admission to the investigating officers that she had ingested heroin, like the testimony at issue in Nabors, was sufficient to support defendant's heroin possession conviction. According to the State, "[s]o long as an oral admission works as a proper method of identification," "it should do so here" as well.

         In seeking to persuade us to affirm the Court of Appeals' decision, defendant argues that, in order to convict a person of possessing a controlled substance, the State must prove the identity of the substance in question by adducing evidence of a scientifically valid chemical analysis performed by a person with expertise in interpreting the results of such an analysis. In support of this argument, defendant relies upon the fact that heroin is defined in NCGS § 90-89(2)(j) "in terms of its chemical composition" In defendant's view, the use of a definition like that set out in NCGS § 90-89(2)(j) implies, given the logic utilized in Ward, 364 NC at 143-44, 694 S.E.2d at 744, "the necessity of performing a chemical analysis to accurately identify controlled substances before the criminal penalties in [Section] 90-95 are imposed" Similarly, defendant contends that State v. Llamas-Hernandez,189 N.C.App. 640, 652, 659 S.E.2d 79, 86 (2008) (Steelman, J, concurring, in part, and dissenting, in part), rev&#39 ...


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