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No. COA07-159 DISTRICT TWENTY-SEVEN A

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA )

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v. ) From Gaston

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JOHNNIE HAL MONCREE, JR. )

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DEFENDANT-APPELLANT’S BRIEF

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QUESTIONS PRESENTED

I. WHETHER THE TRIAL COURT ERRED BY RULING THAT THE STATE DID NOT COMMIT A DISCOVERY VIOLATION AND ADMITTING EXPERT TESTIMONY WHEN, AS IN STATE V. BLANKENSHIP, THE STATE FAILED TO COMPLY WITH STATUTORY NOTICE REQUIREMENTS IN VIOLATION OF MR. MONCREE’S RIGHTS UNDER N.C. GEN. STAT. §§ 15A-902 AND 15A-903?

II. WHETHER THE TRIAL COURT ERRED BY DENYING MR. MONCREE’S MOTIONS TO DISMISS THE CHARGE OF POSSESSION OF MARIJUANA ON THE PREMISES OF A LOCAL CONFINEMENT FACILITY, AS THE STATE FAILED TO ESTABLISH THAT MR. MONCREE WAS IN A SECURED AREA ACCESSIBLE ONLY TO OFFICERS AND THEIR DETAINEES AND THUS, ON THE PREMISES OF A LOCAL CONFINEMENT FACILITY?

III. WHETHER THE TRIAL COURT ERRED BY DENYING MR. MONCREE’S MOTIONS TO DISMISS AND ENTERING JUDGMENT AGAINST HIM IN 05 CRS 20127 AND 05 CRS 20128 FOR TWO COUNTS OF POSSESSION OF MARIJUANA, AS THE STATE’S EVIDENCE DEMONSTRATED THAT BOTH COUNTS AROSE FROM A SINGLE CONTINUOUS ACT OF POSSESSION?

IV. WHETHER THE TRIAL COURT ERRED BY DENYING MR. MONCREE’S MOTIONS TO DISMISS AND ENTERING JUDGMENT AGAINST HIM FOR THREE COUNTS OF POSSESSION OF MARIJUANA, AS THE STATE’S EVIDENCE ESTABLISHED THAT ALL THREE COUNTS AROSE FROM A SINGLE ACT OF POSSESSION?

V. WHETHER THE TRIAL ERRED BY ACCEPTING MR. MONCREE’S PLEA TO HABITUAL FELON STATUS AND ENTERING JUDGMENT AGAINST HIM, AS THE HABITUAL FELON INDICTMENT FAILED TO ALLEGE THREE PREDICATE FELONY OFFENSES?

STATEMENT OF THE CASE

On September 12, 2006, this case came on to be tried in Gaston County Superior Court, before the Honorable James Hardin, on indictments alleging the following: one count of maintaining a vehicle used to keep or sell a controlled substance, two counts of possession of up to one-half ounce of marijuana, one count of possession of drug paraphernalia, one count of possession with intent to manufacture, sell, or deliver cocaine, one count of delivering cocaine, one count of felony conspiracy to possess with intent to sell or deliver cocaine, one count of possession of marijuana on the premises of a local confinement facility, and habitual felon status. (Rpp. 2-9) [1]

On September 13, 2006, a jury found Mr. Moncree guilty of the following: two counts of possession of up to one-half ounce of marijuana, one count of possession of drug paraphernalia, and one count of possession of marijuana on the premises of a local confinement facility. The jury acquitted Mr. Moncree of all remaining charges. (Rpp. 29-36)

Pursuant to a plea agreement, Mr. Moncree pled guilty to habitual felon status. (Rpp. 37-40) In accordance with the agreement, Judge Hardin consolidated the offenses for judgment. (Rpp. 45-46) After finding four mitigating factors and no aggravating factors, Judge Hardin sentenced Mr. Moncree to a mitigated term of 70 to 93 months imprisonment. (Rpp. 43-46) On September 22, 2006, Mr. Moncree gave notice of appeal. (Rpp. 47-48)

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

Mr. Moncree appeals pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a) from final judgments entered against him in Gaston County Superior Court.

STATEMENT OF THE FACTS

On August 13, 2004, Johnnie Moncree was taking a drive in his truck. (Tpp. 64, 87) Tisha Mote was riding in the front passenger seat. (Tp. 87) The State’s evidence tended to show that just before one o’clock in the morning, Officer Brent Roberts of the Gaston County Police Department observed Mr. Moncree driving down Saint Marks Church Road. (Tp. 62) He noticed that Mr. Moncree’s truck had a broken taillight. (Tp. 63)

The Traffic Stop

Roberts pulled Mr. Moncree over. (Tp. 63) As he approached the truck, he “noticed that Mr. Moncree’s arm went up over towards Tisha Mote . . . and appeared to hand something to [her].” Then, he saw “Ms. Mote fumbling around her waistband.” (Tp. 63)

Once Roberts got to the vehicle, he asked to see Mr. Moncree’s driver’s license. While Mr. Moncree was retrieving his license, Roberts “noticed a strong odor of marijuana” coming from inside the truck. (Tp. 64) Roberts ordered Mr. Moncree out of the vehicle and searched him. (Tpp. 65, 66)

Then, Mr. Moncree consented to a search of his truck. (Tp. 66) Before searching the vehicle, Roberts got Mote out of the front passenger seat. (Tpp. 66, 90) As Mote was getting out, Roberts noticed a joint and a “chunk of marijuana” in the front passenger seat where Mote had been seated. (Tp. 66) Roberts, the only officer on the scene, wanted to ensure his own safety while he searched the vehicle, so he handcuffed Mr. Moncree and Ms. Mote and put them in the back of his patrol car. (Tp. 66) He also called for backup. (Tpp. 66-67)

Roberts’ search of the vehicle revealed an open beer can and some cigars. (Tpp. 67, 68) During this time, Officer J.T. Avery arrived to serve as backup. (Tp. 107) When Roberts finished the search, he walked back to his patrol car and issued Mr. Moncree and Ms. Mote citations for possession of up to one-half ounce of marijuana and possession of drug paraphernalia. (Tp. 68) After Roberts removed the handcuffs, he let both of them go. (Tpp. 68, 108)

As Mr. Moncree and Ms. Mote were walking back to the truck, Roberts performed a routine check of the backseat of his patrol car. (Tpp. 69-70, 108) He lifted up the backseat and found a “large bag of an off white substance” which he thought could be cocaine or methamphetamines. (Tp. 70) Mote had stuffed the bag under the seat when Roberts was searching Mr. Moncree’s truck. (Tpp. 93, 111) Mr. Moncree and Ms. Mote were just about to get back into the truck to leave when Roberts and Avery yelled at both of them to stop. The officers placed them under arrest. The officers handcuffed them and took them to the Gaston County Sheriff’s Department. Avery transported Mote, and Roberts took Mr. Moncree. (Tpp. 70, 109)

The Sequence of Events at the Sheriff’s Department

At the Sheriff’s Department, Roberts took Mr. Moncree to booking and processing. (Tpp. 117-18) Deputy Kevin Lail directed Mr. Moncree to “step up to the counter” and “empty out [his] pockets.” Then, Lail conducted a “thorough search” of Mr. Moncree. He instructed him to “sit on the bench” and take off his shoes and socks. (Tp. 118) As Mr. Moncree was removing his shoes, Lail noticed a leafy substance in Mr. Moncree’s left shoe. (Tp. 119) The substance did not have an odor, but Lail thought it was marijuana. (Tpp. 120, 122) Lail did not know the active ingredient in marijuana. (Tp. 122) Lail showed the substance to Roberts who directed Lail to charge Mr. Moncree with misdemeanor possession of marijuana and with felony possession of marijuana on the premises of a local confinement facility. (Tpp. 76, 120)

Roberts performed a marquis regent field test on the white substance that he discovered in the back of his patrol car. He thought that the substance was methamphetamines, so he tested it as such, and the resulting dark purple color was close to the shade on the test kit’s color guide indicating methamphetamines. (Tp. 75)

Roberts eventually sent the following evidence to the SBI for chemical analysis: (1) the white substance he found in the back of his patrol car (Tp. 75) and (2) the other substance he discovered in the front passenger seat of Mr. Moncree’s truck. (Tp. 77)

Lail weighed the evidence from Mr. Moncree’s shoe and determined it to weigh about twenty grams. (Tp. 121) Then, he placed it in the evidence locker at the sheriff’s office. (Tpp. 43, 120) The material discovered in Mr. Moncree’s shoe was never sent to the SBI for testing or subjected to any chemical analysis. (Tpp. 39-40, 43, 120-21)

The State’s Evidence at Trial as to the Identity of Substances Discovered

Prior to trial, the State provided Mr. Moncree with two sets of discovery. Each set included a Discovery Disclosure Certificate indicating that the State provided discovery to Mr. Moncree by sending him copies of the State’s investigative reports, evidence examination reports, and his criminal history. (Tpp. 52, 53, 54) In its plea offer, the State notified Mr. Moncree that it intended to introduce any SBI lab reports prepared in the case. (Tp. 55) SBI chemist Misty Icard tested the evidence that Roberts sent to the SBI. The State provided Mr. Moncree with copies of Icard’s reports. (Tpp. 24, 55)

At trial, SBI Agent Jay Pintacuda testified for the State as an expert witness in the field of forensic chemistry specializing in the analysis of controlled substances. (Tp. 22) Based on Icard’s analysis and conclusions, Pintacuda testified to the following: (1) State’s Exhibit Number 3, the evidence seized from the front passenger seat of Mr. Moncree’s truck, was 1.7 grams of marijuana (Tp. 26) and (2) State’s Exhibit Number 4, the white substance Roberts discovered in the back of his patrol car, was 11.8 grams of cocaine. (Tpp. 27-28)

During its examination of Pintacuda, the State introduced the evidence from Mr. Moncree’s left shoe as State’s Exhibit Number 6. (Tp. 31) The substance was never sent to the lab, so no test results existed regarding its chemical makeup. (Tpp. 38, 39-40, 43, 120-21) The State wanted Pintacuda to testify that the substance was marijuana. (Tpp. 32, 34, 39, 59) Before the State could elicit this testimony from Pintacuda, defense counsel objected. (Tpp. 31, 57) The trial court ordered the jury to leave the courtroom and conducted a voir dire hearing. (Tp. 31)

Defense counsel moved to suppress Pintacuda’s testimony on the ground that the State had failed to notify Mr. Moncree, as required by N.C. Gen. Stat. § 15A-903(a)(2), that it would offer expert witness Pintacuda’s opinion as to the identity of the substance found in Mr. Moncree’s shoe. (Tpp. 33-34) Defense counsel was surprised by the State’s intention to offer expert testimony as to the identity of that evidence. (Tp. 40) The evidence from the shoe was never subjected to any type of chemical analysis, and the complete absence of any test results identifying the nature of the substance was an integral part of his defense to the felony possession charge. (Tpp. 50-51)

The State contended that because the evidence from the shoe was never tested, Pintacuda’s opinion regarding its identification did not constitute expert testimony. (Tpp. 39, 40) The State argued that Pintacuda would only be testifying as a lay witness because he would only be “giving his opinion based upon his training and experience . . . .” (Tp. 34) The State contended that the notice requirements in § 15A-903(a)(2) did not apply. (Tp. 50)

The trial court ruled that the State had not committed any discovery violation because Pintacuda would not be testifying as an expert. (Tp. 57) Instead, the court found that as to the identification of the evidence from the shoe, Pintacuda would be testifying as a lay witness. (Tp. 57) The trial court overruled Mr. Moncree’s objections to the admission of and denied his motion to suppress Pintacuda’s testimony concerning the identity of the evidence discovered in Mr. Moncree’s shoe. (Tp. 57)

When the jury returned to the courtroom, the State continued its direct examination of Pintacuda. (Tp. 58) Pintacuda testified that he had never seen State’s Exhibit Number 6 prior to trial or subjected it to any chemical analysis. He testified that in his opinion the substance was marijuana. (Tpp. 58-59, 61)

ARGUMENT

I. THE TRIAL COURT ERRED BY RULING THAT THE STATE DID NOT COMMIT A DISCOVERY VIOLATION AND ADMITTING EXPERT TESTIMONY WHEN, AS IN STATE V. BLANKENSHIP, THE STATE FAILED TO COMPLY WITH STATUTORY NOTICE REQUIREMENTS IN VIOLATION OF MR. MONCREE’S RIGHTS UNDER N.C. GEN. STAT. §§ 15A-902 AND 15A-903.

Assignments of Error Nos. 1 and 2, Rp. 54

Standard of Review

Review of the trial court’s interpretation of N.C. Gen. Stat. § 15A-903(a)(2) in determining whether a party has committed a discovery violation presents a question of law, subject to de novo review by this Court. State v. Patterson, 335 N.C. 437, 454-55, 439 S.E.2d 578, 588-89 (1994).

Discussion

The State failed to notify Mr. Moncree, as required by § 15A-903(a)(2),

that it would offer expert witness Pintacuda’s opinion as to the identity of the evidence found in Mr. Moncree’s shoe. Therefore, the trial court erred in concluding that the State did not commit a discovery violation and by admitting Pintacuda’s expert testimony.

Sections 15A-902 and 15A-903 govern the discovery process in criminal cases. Specifically, §§ 15A-903(a)(2) and 15A-903(b) require the State to notify the defendant “within a reasonable time prior to trial” of any expert witnesses it intends to call and of any expert opinions it expects to proffer at trial, including the basis of such opinions. Determining what types of discovery are subject to the notice requirement in § 15A-903(a)(2) had been the subject of much debate. However, in State v. Blankenship, ___ N.C. App. ___, 631 S.E.2d 208, 211-12 (2006), this Court conclusively determined the scope of the notice provision.

In Blankenship, the defendant was convicted of possessing immediate precursor chemicals. Expert witness SBI Agent Razzo testified for the State about the process of manufacturing methamphetamines. The defendant objected to the admission of Razzo’s testimony because the State failed to notify the defendant as required by § 15A-903(a)(2) that it intended to offer his opinion regarding the manufacture of methamphetamines. The trial court ruled that the State had not committed a discovery violation because Razzo would not be testifying as an expert. Although the court noted that Razzo’s testimony on the process of making methamphetamines would include facts not generally known to any juror, the court concluded that he would only be testifying to facts as a lay witness. Thus, the court held that § 15A-903(a)(2) did not apply.

This Court found that although the trial court permitted Razzo “to testify as a so-called lay witness,” Razzo was “in fact qualified as, and testified as, an expert witness[.]” Blankenship, 631 S.E.2d at 211. As a result, the State was required to comply with § 15A-903(a)(2) and notify the defendant of its intention to introduce Razzo’s opinion regarding the manufacturing of methamphetamine. Id. at 211-12. The Court held that the trial court abused its discretion in permitting Razzo to testify and erred in finding that the State had not violated the discovery provisions in § 15A-903(a)(2). Id. at 212. The State’s failure to comply with the discovery statute prejudiced the defendant, and as a result, the defendant was entitled to a new trial. Id.

In Mr. Moncree’s case, the trial court admitted expert witness Pintacuda’s testimony as to the identity of the material found in Mr. Moncree’s shoe. (Tpp. 57, 58-59, 61) The court reasoned that because the material was never subjected to any chemical analysis, Pintacuda would not be testifying as an expert to any test results. (Tp. 57) Instead, he would only be testifying as a lay witness giving his opinion on the nature of the material. (Tp. 57) The court ruled that because § 15A-903(a)(2) did not apply, the State had not committed a discovery violation. (Tp. 57)

The trial court’s rationale for admitting Pintacuda’s testimony mirrored that of the trial court in Blankenship, which this Court rejected. First, Pintacuda was qualified and testified as an expert witness. (Tp. 22) The State tendered Pintacuda as “an expert in the field of forensic chemistry specializing in the analysis of controlled substances.” (Tpp. 19-22) Mr. Moncree stipulated that Pintacuda was an expert, and the trial court received him as an expert. (Tp. 22) As in Blankenship, during the State’s qualification of Pintacuda, the jury heard extensive evidence about his training, experience, and specialized knowledge in the identification of controlled substances. (Tpp. 20-22) Pintacuda specifically testified that he had been a forensic scientist in the criminal justice system for thirty-seven years, that he had been in his current position as senior chemist with the SBI for twenty-one years, and that his duties included analyzing physical evidence, training other chemists, and laboratory management. (Tpp. 20-22) Further, since the trial court received Pintacuda as an expert, the court instructed the jury on expert testimony. (Tpp. 22, 145-146) As a result, the jury was entitled to consider all of Pintacuda’s testimony as expert testimony.

Second, like Razzo’s testimony in Blankenship, Pintacuda’s testimony identifying the evidence from Mr. Moncree’s shoe as marijuana assisted the jury to determine a fact in issue. § 8C-1, Rule 702. Because Pintacuda was more qualified than the jury in the field of chemical analysis of controlled substances, the State offered his testimony to assist the jury in drawing inferences regarding the identity of controlled substances. Also, Pintacuda’s testimony was in the form of an opinion, as he did not simply testify to facts when he concluded that State’s Exhibit Number 6 was marijuana. (Tpp. 59, 61) Instead, he used his specialized experience in forensic chemistry to draw inferences and form an opinion about the identity of substance found in Mr. Moncree’s shoe. Specifically, he testified that based on the “structure, the appearance, the seeds, [and] the stems[]” of State’s Exhibit Number 6, it was his conclusion that the substance from Mr. Moncree’s shoe was marijuana. (Tpp. 59, 61)

Third, as in Blankenship, the State failed to notify Mr. Moncree within a reasonable time prior to trial that it intended to proffer expert witness Pintacuda’s testimony that the identity of the substance discovered in Mr. Moncree’s shoe was marijuana. The State notified Mr. Moncree that Pintacuda would give an opinion based on SBI test results as to the identity of the evidence found in the front passenger seat of Mr. Moncree’s truck and in the back of Roberts’ patrol car. (Tpp. 25, 55) However, the State did not notify Mr. Moncree that Pintacuda would give an opinion as to the identity of the evidence discovered in the shoe. (Tpp. 33-34, 39-40, 43)

Finally, the trial court’s admission of Pintacuda’s testimony prejudiced Mr. Moncree. The State failed to send the evidence from Mr. Moncree’s shoe to the SBI for chemical analysis. Thus, the lay opinion testimony of Roberts and Lail was the only evidence the State had to offer as to the nature of that evidence. (Tpp. 76-77, 120) In an attempt to bolster its case, the State wanted to ask Pintacuda, its only expert witness, to identify the evidence from the shoe. Due to Pintacuda’s expertise, the State could reasonably expect that the jury would find his opinion to be more credible than the lay opinions of Lail and Roberts concerning the identity of that evidence, particularly since Roberts thought that the bag of cocaine from the back of his patrol car was methamphetamines and Lail did not know the active ingredient in marijuana. (Tpp. 75, 122)

Mr. Moncree was tried on indictments alleging eight separate counts of various drug violations. (Rpp. 2-6, 8-9) The jury acquitted Mr. Moncree of half of the charges against him, demonstrating that the jury generally disbelieved the testimony of the State’s witnesses and perceived the State’s evidence against Mr. Moncree to be insufficient. Thus, if the court had not admitted Pintacuda’s testimony that the evidence found in the shoe was marijuana, there is a reasonable probability that the jury would have acquitted Mr. Moncree of misdemeanor possession in 05 CRS 20128 and of felony possession in 05 CRS 20127.

The trial court in Mr. Moncree’s case erred in ruling that § 15A-903(a)(2) did not apply and that the State had not committed a discovery violation. The court arrived at its conclusion using the rationale that this Court rejected in Blankenship. Accordingly, Blankenship mandates that Mr. Moncree’s convictions for possession of up to one-half ounce of marijuana in 05 CRS 20128 and possession of marijuana on the premises of a local confinement facility in 05 CRS 20127 be reversed.

II. THE TRIAL COURT ERRED BY DENYING MR. MONCREE’S MOTIONS TO DISMISS THE CHARGE OF POSSESSION OF MARIJUANA ON THE PREMISES OF A LOCAL CONFINEMENT FACILITY AS THE STATE FAILED TO ESTABLISH THAT MR. MONCREE WAS IN A SECURED AREA ACCESSIBLE ONLY TO OFFICERS AND THEIR DETAINEES AND THUS, ON THE PREMISES OF A LOCAL CONFINEMENT FACILITY.

Assignment of Error No. 6, Rp. 55

Standard of Review

The issue of whether the State’s evidence was sufficient presents a question of law subject to de novo review by this Court. State v. Hart, ___ N.C. App. ___, 633 S.E.2d 102, 108 (2006).

Discussion

Mr. Moncree was charged with and convicted of possession of marijuana on the premises of a local confinement facility in violation of N.C. Gen. Stat. § 90-95(e)(9). (Rpp. 8, 45-46) However, the State failed to establish an essential element of the offense: that Mr. Moncree was in a secured area accessible only to officers and their detainees and thus, on the premises of a local confinement facility.

Pursuant to § 90-95(e)(9), any person who knowingly possesses a controlled substance on the premises of a local confinement facility or penal institution is guilty of a Class H felony. Section 90-95(e)(9) does not define the term “local confinement facility.” However, § 153A-217 provides that a “local confinement facility” includes a “county or city jail, a local lockup, a regional or district jail, a juvenile detention facility, a[n] [adult] detention facility . . . operated by a local government, and any other facility operated by a local government for [the] confinement of persons awaiting trial or serving sentences . . . .” Moreover, this Court has held that the premises of a “local confinement facility” clearly includes the secured areas designated for inmate housing, but it also includes those secured areas accessible only to “law enforcement officers” and “individuals in [their] custody . . . who are to be taken before the magistrate.” State v. Dent, 174 N.C. App. 459, 467, 621 S.E.2d 274, 280 (2005).

In Dent, an officer pulled the defendant’s vehicle over and arrested him for driving while license revoked. The defendant smelled like marijuana, so the officer searched him at the scene but did not find any drugs. The officer transported the defendant to the Forsyth County Law Enforcement and Detention Center. Prior to entering the detention center, the officer asked the defendant several times if he had any drugs on him. The defendant responded that he did not. The officer warned the defendant that if he carried drugs into the detention center, he would be charged with felony possession. Once inside the facility, the officer escorted the defendant to the lobby of the magistrate’s office and placed him in a holding cell located within the lobby. While in the holding cell, officers strip searched the defendant and discovered some marijuana in his sock. The defendant was convicted of possession of marijuana on the premises of a local confinement facility. On appeal, the defendant argued that the premises of a local confinement facility did not include the lobby of the magistrate’s office or the holding cell located within the lobby of the magistrate’s office.

Although § 153A-217 provides that a “local confinement facility” includes a detention center such as the Forsyth County Law Enforcement and Detention Center, this Court examined whether the State had produced sufficient evidence that the defendant’s actual location within the facility was itself a secured area. This Court found that the State’s evidence demonstrated that: (1) before entering the detention center, the officer had to “first proceed through a locked vehicle gate” where he had to identify himself and check his weapon; (2) the lobby of the magistrate’s office was itself a secured area accessible only to officers and arrestees in their custody; (3) the secured holding cell, located within the secured lobby of the magistrate’s office, was also only accessible to officers and their arrestees; and (4) the defendant was in the secured holding cell when officers discovered the marijuana in his sock. Id. at 460, 621 S.E.2d at 275.

Not only was the holding cell a secured area accessible only to officers and arrestees, but the surrounding area, specifically the magistrate’s lobby, was also a secured area accessible only to officers and arrestees. Thus, the Court found that for purposes of § 90-95(e)(9), the holding cell constituted the premises of a local confinement facility and held that trial court did not err by denying defendant’s motion to dismiss. Id.

Mr. Moncree was being booked and processed at the Sheriff’s Department when an officer found marijuana in his shoe. The facility also included a jail. (Tp. 117) Pursuant to § 153A-217, a “local confinement facility” includes county jails. However, just as in Dent, the State must produce sufficient evidence that Mr. Moncree’s actual location within the Sheriff’s Department was a secured area accessible only to officers and detainees, and in Mr. Moncree’s case, unlike Dent, the State failed to meet its burden.

First, no evidence suggested that Mr. Moncree was in a secured area accessible only to officers and detainees. In contrast to Dent, no evidence suggested that he was put in any type of secured lobby, search room, or holding cell. Lail testified that Mr. Moncree emptied his pockets at “the counter” and was sitting on “the bench” when he noticed the substance in his shoe. (Tpp. 118-19) However, the State did not elicit any testimony from Lail or any other witness that either “the bench” or “the counter” was located in a secured area accessible only to officers and arrestees. The State failed to produce any evidence regarding the security and accessibility of the booking and processing area.

Second, the State wholly failed to produce any evidence on the security or accessibility of any part of the entire facility. Unlike Dent, no witness testified to the existence of a security checkpoint at the facility’s entrance. No witness testified that the facility was not fully accessible to those members of the public seeking services provided by the Sheriff’s Department. Significantly, the State simply failed to produce any evidence as to the accessibility or security of any part of the Sheriff’s Department.

The State failed to establish an essential element of the charged offense: that Mr. Moncree was in a secured area accessible only to officers and their detainees and therefore, on the premises of a local confinement facility. However, in a criminal case, the State must present substantial evidence of each essential element of the crime charged. State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantial evidence is evidence from which a juror could conclude that the accused is guilty of each essential element beyond a reasonable doubt. State v. Earnhardt, 307 N.C. 62, 66, n. 1, 296 S.E.2d 649, 652, n. 1 (1982) (citing Jackson v. Virginia, 443 U.S. 307, 319, n. 12, 61 L.Ed.2d 560, 573, n. 12 (1979)).

While the State’s evidence established that Mr. Moncree was sitting on “the bench” in the booking and processing area of the Sheriff’s Department, no evidence suggested that he was in a secured area accessible only to officers and arrestees. Although the State’s evidence may support a strong suspicion of guilt, evidence that merely arouses conjecture or suspicion fails to satisfy the State’s burden of proof. Earnhardt, 307 N.C. at 65-66, 296 S.E.2d at 651-52. Therefore, the trial court erred by denying Mr. Moncree’s motions to dismiss and entering judgment against him for possession of marijuana on the premises of a local confinement facility. Mr. Moncree’s conviction must be vacated.

III. THE TRIAL COURT ERRED BY DENYING MR. MONCREE’S MOTIONS TO DISMISS AND ENTERING JUDGMENT AGAINST HIM IN 05 CRS 20127 AND 05 CRS 20128 FOR TWO COUNTS OF POSSESSION OF MARIJUANA AS THE STATE’S EVIDENCE DEMONSTRATED THAT BOTH COUNTS AROSE FROM ONE CONTINUOUS ACT OF POSSESSION.

Assignments of Error Nos. 3, 6, and 12, Rpp. 54, 55, 56

Standard of Review

Whether the State’s evidence was sufficient is a question of law, subject to de novo review by this Court. State v. Hart, ___ N.C. App. ___, 633 S.E.2d 102, 108 (2006).

Discussion

Based on the evidence discovered in Mr. Moncree’s shoe, he was charged with and convicted of one count of misdemeanor possession of marijuana under N.C. Gen. Stat. § 90-95(d)(4) and one count of felony possession of marijuana on the premises of a local confinement facility under § 90-95(e)(9). (Rpp. 8-9, 45-46) However, the State’s evidence demonstrated only one act of possession. Therefore, the trial court erred by denying Mr. Moncree’s motions to dismiss and entering judgment against him for both misdemeanor possession in 05 CRS 20127 and felony possession in 05 CRS 20128.

Section 90-95(a)(3) makes it a crime to unlawfully possess any controlled substance. Unless the State proves that the defendant possessed more than one-half ounce of marijuana, § 90-95(d)(4) classifies a violation of § 90-95(a)(3) as a Class 3 misdemeanor.

Section 90-95(e)(9) provides that any individual who violates § 90-95(a)(3) “on the premises of a penal institution or local confinement facility shall be guilty of a Class H felony.”

The facts in Mr. Moncree’s case are remarkably similar to those in State v. Alston, 111 N.C. App. 416, 432 S.E.2d 385 (1993). In Alston, the defendant sold a rock of crack cocaine to an undercover agent for forty dollars. The exchange took place within one hundred feet of the front entrance to a middle school. Based on that single exchange, the defendant was charged in separate indictments with one count of sale of cocaine in violation of § 90-95(a)(1) and one count of sale of cocaine within three hundred feet of school property in violation of § 90-95(e)(8). The jury convicted defendant of both counts of sale of cocaine, and the trial court entered judgment against him for both counts.

Although the defendant failed to challenge the sufficiency of the State’s evidence on appeal, this Court sua sponte found that the evidence demonstrated that both charges arose from a single act of sale. Id. at 416, 432 S.E.2d at 385. The sale on school property merely constituted “an aggravated sale pursuant to [§] 90-95(e)(8)[,]” and thus, the Court arrested one of defendant’s convictions for sale of cocaine. Id.

Here, based on the single amount of marijuana in his shoe, Mr. Moncree was convicted of two counts of possession. However, no reasonable juror could have concluded beyond a reasonable doubt that Mr. Moncree committed two separate and distinct acts of possession. State v. Earnhardt, 307 N.C. 62, 66, n. 1, 296 S.E.2d 649, 652, n. 1 (1982) (citing Jackson v. Virginia, 443 U.S. 307, 319, n. 12, 61 L.Ed.2d 560, 573, n. 12 (1979)). Like Alston, the State’s evidence at most established that both counts of possession arose from a single act of possession of a single amount of marijuana. The State failed to meet its burden of proof. State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Therefore, the trial court erred by denying Mr. Moncree’s motions to dismiss and entering judgment against him for two counts of possession of the same marijuana. Mr. Moncree’s conviction for misdemeanor possession of marijuana in 05 CRS 20128 must be vacated.

IV. THE TRIAL COURT ERRED BY DENYING MR. MONCREE’S MOTIONS TO DISMISS AND ENTERING JUDGMENT AGAINST HIM FOR THREE COUNTS OF POSSESSION OF MARIJUANA AS THE STATE’S EVIDENCE ESTABLISHED THAT ALL THREE COUNTS AROSE FROM THE SAME ACT OF POSSESSION.

Assignments of Error Nos. 3, 4, 6, 10, and 12, Rpp. 54, 55, 56

Standard of Review

Whether the State’s evidence was sufficient presents a question of law, which is reviewed de novo by this Court. State v. Hart, ___ N.C. App. ___, 633 S.E.2d 102, 108 (2006).

Discussion

The State’s evidence established that officers discovered marijuana in the front passenger seat of Mr. Moncree’s truck and in his left shoe. (Tpp. 66, 119) Based on this evidence, Mr. Moncree was charged with and convicted of three counts of possession of marijuana. (Rpp. 2, 8, 9) For the marijuana in his truck, he was convicted of one count of possession of up to one-half ounce of marijuana in violation of N.C. Gen. Stat. § 90-95(d)(4). (Rp. 2) For the marijuana in his shoe, he was convicted of one count of possession of up to one-half ounce of marijuana in violation of § 90-95(d)(4) and one count of possession of marijuana in violation of § 90-95(e)(9). (Rpp. 8-9) However, the State’s evidence established that all three counts arose from a single continuous act of possession. As the State failed to establish three distinct acts of possession, the trial court erred in denying Mr. Moncree’s motions to dismiss and entering judgment against him for three counts of possession of marijuana.

In State v. Rozier, 69 N.C. App. 38, 316 S.E.2d 893 (1984), defendants Carter and Rozier were charged with and convicted of two counts of possession of cocaine. The State’s evidence showed that an undercover agent used one of defendants’ regular buyers to arrange a drug sale between the agent and defendants. The agent drove the buyer to Carter’s trailer. While the agent waited in the car, the buyer entered the trailer to get the drugs. Then, the buyer headed back out to the agent’s car to get the cash. Once the buyer was back in the car, the agent sped away before paying for the cocaine. Carter and Rozier jumped in Rozier’s truck and chased after the agent’s car. As defendants reached the road, officers surrounded them. A search incident to arrest revealed that each defendant possessed a vial containing trace amounts of cocaine. Based on the large quantity of cocaine sold, each defendant was convicted of felony trafficking cocaine by possession. Based on the trace amounts discovered during the search incident to arrest, each defendant was also convicted of simple possession of cocaine. On appeal, each defendant argued that his possession of two different amounts of cocaine, the large quantity sold and his personal stash, constituted a single continuing act of possession.

This Court found the evidence showed that defendants possessed the large quantity of cocaine for the purpose of selling it and possessed the trace amounts for personal use. No evidence suggested that the trace amounts were originally part of the large amount sold. Because defendants possessed the separate amounts of cocaine for two distinct purposes, the Court found two distinct acts of possession. Therefore, this Court upheld both possession convictions. Id. at 55, 316 S.E.2d at 904.

The Court noted that in order for the State to obtain multiple possession convictions, it must establish distinct acts of possession separated in time and space. Id. at 54, 316 S.E.2d at 904. For example, if the defendant possessed separate amounts of different types of drugs at the same time, then the evidence clearly supports separate possession convictions. Id. at 55, 316 S.E.2d at 904 (citing United States v. Privett, 443 F.2d 528 (9th Cir. 1971) (holding that three balloons of heroin, each containing heroin of different purity, discovered on defendant’s person and in two different places in his vehicle supported three convictions)).

However, if the defendant possessed separate amounts of the same drug at the same time, then the evidence supports only one possession conviction. Id. at 54-55, 316 S.E.2d at 904 (citing People v. Shea, 169 Cal. Rptr. 24, 27-28 (Cal. Ct. App. 1989) (holding that evidence supported only one possession conviction when defendant possessed three separate amounts of the same drug on her person at the same time)). To illustrate, a defendant’s possession of separate caches of cocaine discovered on the same day in different locations within his home would support only one possession conviction. See State v. Smith, 99 N.C. App. 67, 74, 392 S.E.2d 642, 647 (1990).

In Smith, officers searched defendant’s home and found .22 grams of cocaine in a plastic bottle on top of a dresser and 2.1 grams of cocaine in seventeen baggies hidden nearby between the bed and the wall. The defendant was convicted of one count of felony possession of cocaine. On appeal, defendant argued that the trial court erred by failing to instruct on the lesser-included offense of misdemeanor possession. The defendant claimed that possession of two caches of cocaine should be considered two separate and distinct acts of possession. If considered individually, the .22 grams found on the dresser would have required an instruction on misdemeanor possession.

Although defendant failed to properly preserve the issue for appeal, this Court noted that if it had been preserved, it would have overruled the defendant’s argument. Id. at 74, 392 S.E.2d at 646. The Court reasoned that if possession of multiple caches of the same drug must be considered separate possessions, then “drug dealers could simply divide cocaine into packages containing less than one gram each to avoid being prosecuted for a felony.” Id. at 74, 392 S.E.2d at 647. Thus, the Court concluded that defendant’s possession of multiple caches of the same drug discovered on the same day in different locations in his home constituted a single act of possession. Id.

In Mr. Moncree’s case, as in Smith, officers found two amounts of the same drug on the same day in different places. First, Roberts found some marijuana in Mr. Moncree’s truck. After Mr. Moncree was arrested, Lail found some marijuana in Mr. Moncree’s shoe. In Smith, since defendant’s possession of multiple caches of the same drug discovered on the same day in different locations in his home supported only one possession conviction, then Mr. Moncree’s possession of multiple caches of marijuana discovered on the same day in his truck and on his person once he exited his truck, likewise supported only one possession conviction.

Based on the evidence found in the truck and the shoe, the State charged Mr. Moncree with three separate counts of possession. However, the State’s evidence at best established only one act of possession. Unlike Rozier, no evidence suggested that Mr. Moncree possessed one stash for the purpose of sale and the other for personal use. Combined, the two small stashes merely weighed 21.7 grams suggesting that Mr. Moncree did not intend to sell either amount. (Tpp. 26, 121) Moreover, Roberts testified that he smelled marijuana coming from the interior of Mr. Moncree’s truck. (Tp. 64) Thus, the evidence suggested that Mr. Moncree did not possess the marijuana for the purpose of selling it. Instead, he wanted to smoke it himself.

Moreover, like Smith, Mr. Moncree possessed both the marijuana in the truck and the marijuana in the shoe simultaneously. The State presented no evidence suggesting that Mr. Moncree came into possession of the marijuana in his shoe after his arrest. In fact, Roberts testified that Mr. Moncree possessed both the marijuana in his truck and the marijuana in his shoe at the same time at the scene of the traffic stop. He testified that both amounts would have been discovered at the scene had an adequate search been conducted. (Tpp. 79-80)

As the State failed to produce substantial evidence of the essential elements of three separate and distinct acts of the possession, the State failed to meet its burden of proof. State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). If Roberts had discovered both stashes of marijuana at the same time during the traffic stop, Mr. Moncree would have only been charged with one count of possession. Roberts’ failure to discover the marijuana in the shoe did not convert Mr. Moncree’s single act of possession into three distinct offenses. As in Smith, Mr. Moncree’s possession of separate caches of the same drug found in different places on the same day did not convert the offense into three distinct and separate acts of possession. Thus, two of Mr. Moncree’s convictions for possession of marijuana must be vacated.

V. THE TRIAL COURT ERRED BY ACCEPTING MR. MONCREE’S PLEA TO HABITUAL FELON STATUS AND ENTERING JUDGMENT AGAINST HIM AS THE HABITUAL FELON INDICTMENT FAILED TO ALLEGE THREE PREDICATE FELONY OFFENSES.

Assignment of Error No. 14, Rp. 57

Standard of Review

Review of the trial court’s subject matter jurisdiction presents a question of law subject to de novo review by this Court. E.g., Dunn v. State, ___ N.C. App. ___, 635 S.E.2d 604, 606 (2006).

Discussion

The habitual felon indictment in this case listed a prior New Jersey conviction as one of the three required predicate felony offenses. (Rp. 7) However, under the laws of New Jersey, the conviction was a high misdemeanor, not a felony. As a result, the indictment failed to allege the essential elements of habitual felon status, rendering the indictment fatally defective and legally insufficient to confer jurisdiction upon the trial court. Thus, the trial court erred by accepting Mr. Moncree’s plea and entering judgment and sentence against him on the habitual felon indictment.

In a criminal case, a valid indictment is essential to confer subject matter jurisdiction upon the trial court. State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419 (1998). A valid indictment must allege every element of the charged criminal offense and “facts supporting every element . . . with sufficient precision clearly to apprise the defendant . . . of the conduct which is the subject of the accusation.” N.C. Gen. Stat. § 15A-924(a)(5) (2006). When the “record shows a lack of jurisdiction in the lower court, the appropriate action on the part of the appellate court is to arrest judgment or vacate any order entered without authority.” State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981).

Any jurisdictional defect may be raised at any time, even if raised for the first time on appeal, and constitutes per se reversible error. Wilson, 128 N.C. App. at 691, 497 S.E.2d at 419. See also §§ 15A-1446(d)(1) and (4).

An habitual felon indictment must allege that the defendant has been convicted of three prior felony offenses “in any federal or state court.” § 14-7.1. The statute defines a felony offense as “an offense which is a felony under the laws of the State or sovereign wherein a plea of guilty was entered or a conviction was returned regardless of the sentence actually imposed.” Id. (emphasis added). If one of the predicate offenses alleged was not a felony under the laws of the state in which the plea or conviction was entered, the conviction is incompetent to serve as one of the predicate felony offenses required for habitual felon status. See State v. Carpenter, 155 N.C. App. 35, 51, 573 S.E.2d 668, 678 (2002) (citing State v. Lindsey, 118 N.C. App. 549, 553, 455 S.E.2d 909, 912 (1995)).

In Carpenter, the defendant was convicted of habitual felon status. The habitual felon indictment listed two prior New Jersey convictions. The defendant moved to dismiss the indictment because it failed to allege the essential elements of habitual felon status. Specifically, defendant argued that the “two New Jersey convictions were ‘not felonies within the meaning of the North Carolina Habitual Felons Act.’” Id. at 50, 573 S.E.2d at 678. The trial court denied defendant’s motion to dismiss the indictment. In reliance on Lindsey, this Court vacated defendant’s habitual felon conviction because the New Jersey judgments failed to state that defendant was a felon or convicted of a felony. Id. at 51, 573 S.E.2d at 678. As the State failed to otherwise establish that the convictions were felonies under the laws of New Jersey, the Court held that the trial court erred in denying defendant’s motion to dismiss the habitual felon indictment. Id.

In Lindsey, just as in Carpenter, the defendant was convicted of habitual felon status and the habitual felon indictment listed a prior New Jersey conviction. The trial court denied defendant’s motion to dismiss the habitual felon charge for insufficient evidence. This Court found that the State failed to present substantial evidence that the New Jersey conviction was a felony under the laws of New Jersey and thus, vacated defendant’s habitual felon conviction. Lindsey, 118 N.C. App. at 553, 455 S.E.2d at 912.

In both Lindsey and Carpenter, the State argued that because the New Jersey convictions were punishable by more than one year imprisonment in New Jersey, the convictions were competent predicate felonies to support the habitual felon charge. However, in both cases, this Court held that “we cannot conclude from the length of defendant’s sentence . . . that the offense was a felony in New Jersey.” Carpenter, 118 N.C. App. at 553, 455 S.E.2d at 912 (quoting Lindsey, 118 N.C. App. at 553, 455 S.E.2d at 912).

Here, just like Carpenter and Lindsey, the indictment charging Mr. Moncree with habitual felon status listed a prior New Jersey conviction. Specifically, the indictment alleged a 1998 conviction for “felony” possession of a controlled dangerous substance in violation of N.J. Stat. Ann. § 2C:35-10(a)(1). (Rp. 7) However, New Jersey law designated possession of a controlled dangerous substance as a high misdemeanor. See State v. Bush, 340 A.2d 697, 699 (N.J. Super. Ct. Law Div. 1975) (stating that possession of a controlled substance listed in Schedules I, II, III, or IV is a high misdemeanor).

In 1987, the New Jersey legislature revised the state’s controlled substances act. N.J. Ann. Stat. § 2C:35-1, et seq. See State v. Jordan, 563 A.2d 463, 464 (N.J. Super. Ct. App. Div. 1989) (noting that in many respects, § 2C:35-1 et seq. repealed the old controlled substances act). Under the new act, the legislature classified drug offenses as crimes of the first, second, third, or fourth degree and provided mandatory sentencing guidelines for each degree. See N.J. Ann. Stat. §§ 2C:43-1 (classifying offenses as crimes of the first, second, third, or fourth degree) and 2C:43-6 (providing structured sentencing guidelines for each degree of offense).

Under this sentencing classification system, however, the legislature did not alter its designation of certain offenses as high misdemeanors. See § 2C:43-1(b) (directing that any crime not specifically covered in the code but designated as a high misdemeanor under New Jersey law, shall constitute a third degree crime “for the purpose of sentence”). Instead, the legislature classified offenses to provide for a more structured sentencing system. Thus, although § 2C:35-10(a)(1) classified possession of a controlled dangerous substance as a third degree crime for sentencing purposes, New Jersey law still designated the offense as a high misdemeanor. As this Court “cannot conclude from the length of defendant’s sentence . . . that the offense was a felony in New Jersey[,]” Carpenter, 118 N.C. App. at 553, 455 S.E.2d at 912 (quoting Lindsey, 118 N.C. App. at 553, 455 S.E.2d at 912), the offense must be treated as a misdemeanor in North Carolina just as it was in New Jersey.

It is useful to compare the State’s use of prior out-of-state convictions under the Structured Sentencing Act and under the Habitual Felons Act. Under the Structured Sentencing Act, if the State proves by the preponderance of the evidence that an out-of-state misdemeanor conviction is substantially similar to an offense that North Carolina classifies as a Class I felony or higher, then the out-of-state misdemeanor conviction is treated as a felony for assigning prior record level points. § 15A-1340.14(e). In contrast, under the Habitual Felons Act, it is irrelevant that North Carolina classifies or punishes conduct comparable to the out-of-state offense as a felony. § 14-7.1. The determinative law for habitual felon purposes is the law of the state in which the conviction was entered. Id.

In Lindsey and Carpenter, this Court examined the problems that arise when the State uses prior New Jersey convictions as predicate felonies to support habitual felon indictments. As in Lindsey and Carpenter, Mr. Moncree’s prior New Jersey conviction was not a felony under the laws of New Jersey. As a result, the indictment failed to allege three predicate felony offenses required for the habitual felon charge and failed to confer jurisdiction upon the trial court. As Mr. Moncree’s guilty plea did not waive his right to challenge the trial court’s jurisdiction on appeal, State v. Hughes, 136 N.C. App. 92, 97, 524 S.E.2d 63, 66 (1999), disc. review denied, 351 N.C. 644, 543 S.E.2d 878 (2000), his habitual felon conviction must be vacated.

CONCLUSION

For the foregoing reasons and authorities, Mr. Moncree respectfully requests that his convictions be vacated or, in the alternative, that his convictions be reversed and the cause remanded for a new trial. Mr. Moncree further requests that his habitual felon sentence be vacated and the matter remanded for resentencing.

Respectfully submitted, this the 2nd day of April, 2007.

_________________________________________

Emily H. Davis

Assistant Appellate Defender

Emily.H.Davis@

Staples Hughes

Appellate Defender

Office of the Appellate Defender

123 West Main Street, Suite 500

Durham, North Carolina 27701

919.560.3334

ATTORNEYS FOR DEFENDANT-APPELLANT

CERTIFICATE OF COMPLIANCE WITH RULE 28(J)(2)

I hereby certify that Defendant-Appellant’s Brief is in compliance with Rule 28(j)(2) of the North Carolina Rules of Appellate Procedure in that it is printed in fourteen point Times New Roman font and the body of the brief, including footnotes and citations, contains no more than 8750 words as indicated by Microsoft Word, the program used to prepare the brief.

This the 2nd day of April, 2007.

_________________________________________

Emily H. Davis

Assistant Appellate Defender

CERTIFICATE OF FILING AND SERVICE

I hereby certify that the original Defendant-Appellant’s Brief has been filed pursuant to Rule 26 of the North Carolina Rules of Appellate Procedure by sending it first-class mail, postage prepaid, to the Clerk of the North Carolina Court of Appeals, Post Office Box 2779, Raleigh, North Carolina 27602-2779, by placing it in a depository for that purpose.

I further certify that a copy of the above and foregoing Defendant-Appellant’s Brief has been duly served upon the State of North Carolina by sending it first-class mail, postage prepaid, to Ms. Lisa G. Corbett, Assistant Attorney General, North Carolina Department of Justice, Post Office Box 629, Raleigh, North Carolina 27602-0629, by placing it in a depository for that purpose.

This the 2nd day of April, 2007.

_________________________________________

Emily H. Davis

Assistant Appellate Defender

-----------------------

[1] References to pages in the Record on Appeal will be cited as “Rp.” or “Rpp.” References to pages in the trial transcript will be cited as “Tp.” or “Tpp.”

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