{ "id": 9132055, "name": "STATE OF NORTH CAROLINA v. VICTOR WAYNE WILLIAMS", "name_abbreviation": "State v. Williams", "decision_date": "2002-04-16", "docket_number": "No. COA01-632", "first_page": "795", "last_page": "802", "citations": [ { "type": "official", "cite": "149 N.C. App. 795" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "546 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "353 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135802, 135759, 135846, 135958 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/353/0279-02", "/nc/353/0279-03", "/nc/353/0279-01", "/nc/353/0279-04" ] }, { "cite": "533 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "870" }, { "page": "870" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 544", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497226 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "550-51" }, { "page": "550" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0544-01" ] }, { "cite": "553 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "429", "parenthetical": "likewise rejecting equal protection challenge to Moore County policy" }, { "page": "429", "parenthetical": "rejecting separation of powers challenge to Moore County policy of indicting all eligible offenders for habitual felon status" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 590", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11361404 ], "year": 2001, "pin_cites": [ { "page": "591-92", "parenthetical": "likewise rejecting equal protection challenge to Moore County policy" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0590-01" ] }, { "cite": "559 S.E.2d 186", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138424, 138498, 138312, 138390 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0576-01", "/nc/354/0576-02", "/nc/354/0576-04", "/nc/354/0576-03" ] }, { "cite": "552 S.E.2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "235" }, { "page": "236" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 299", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11356647 ], "weight": 2, "pin_cites": [ { "page": "301" }, { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0299-01" ] }, { "cite": "560 S.E.2d 355", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 220", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220137, 220044, 219890, 219958, 219998 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0220-02", "/nc/355/0220-05", "/nc/355/0220-04", "/nc/355/0220-03", "/nc/355/0220-01" ] }, { "cite": "553 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "697" }, { "page": "697" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 568", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11360981 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/146/0568-01" ] }, { "cite": "511 S.E.2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "303", "parenthetical": "rulings on motions in limine \"are preliminary in nature and subject to change at trial, . . . and 'thus an objection to an order granting or denying the motion \"is insufficient to preserve for appeal the question of the admissibility of the evidence\" ' \" (citations omitted)" } ], "opinion_index": 0 }, { "cite": "350 N.C. 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132085 ], "year": 1999, "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0079-01" ] }, { "cite": "559 S.E.2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "215" }, { "page": "215-16", "parenthetical": "citation omitted" }, { "page": "215" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 534", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9366970 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "539-40" }, { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0534-01" ] }, { "cite": "287 S.E.2d 810", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "814" } ], "opinion_index": 0 }, { "cite": "305 N.C. 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567315 ], "year": 1982, "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0225-01" ] }, { "cite": "202 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "284 N.C. 622", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564484, 8564389, 8564462, 8564441, 8564414 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0622-05", "/nc/284/0622-01", "/nc/284/0622-04", "/nc/284/0622-03", "/nc/284/0622-02" ] }, { "cite": "201 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1973, "pin_cites": [ { "page": "202" }, { "page": "202" } ], "opinion_index": 0 }, { "cite": "20 N.C. App. 255", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551522 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/20/0255-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 8, "year": 1999, "pin_cites": [ { "page": "(a)(3)" }, { "page": "(a)(3)" }, { "page": "(a)(3)" }, { "page": "(a)(3)" }, { "page": "257" }, { "page": "(a)(3)" }, { "page": "(a)(3)" } ], "opinion_index": 0 }, { "cite": "145 L. Ed. 2d 274", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1999, "opinion_index": 0 }, { "cite": "528 U.S. 941", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9531459, 9532036, 9531683, 9531419, 9531977, 9531531, 9531499, 9531631, 9531926, 9531799, 9531384, 9531739, 9531868, 9531582 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/528/0941-03", "/us/528/0941-14", "/us/528/0941-08", "/us/528/0941-02", "/us/528/0941-13", "/us/528/0941-05", "/us/528/0941-04", "/us/528/0941-07", "/us/528/0941-12", "/us/528/0941-10", "/us/528/0941-01", "/us/528/0941-09", "/us/528/0941-11", "/us/528/0941-06" ] }, { "cite": "512 S.E.2d 720", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "742" } ], "opinion_index": 0 }, { "cite": "350 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132015 ], "year": 1999, "pin_cites": [ { "page": "142" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0109-01" ] } ], "analysis": { "cardinality": 687, "char_count": 15843, "ocr_confidence": 0.757, "pagerank": { "raw": 2.590633760902503e-07, "percentile": 0.8180386192399635 }, "sha256": "bb163c23b82cecfabbb3c6765dd6f0bff928e162c401f1d350e48027599c96ad", "simhash": "1:43297562e62e64da", "word_count": 2601 }, "last_updated": "2023-07-14T21:06:37.161258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and BRYANT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. VICTOR WAYNE WILLIAMS" ], "opinions": [ { "text": "HUNTER, Judge.\nVictor Wayne Williams (\u201cdefendant\u201d) appeals judgment entered upon jury verdicts finding him guilty of felonious simple possession of a schedule II controlled substance (cocaine) and of being an habitual felon. We find no error in defendant\u2019s trial.\nEvidence presented at trial tended to establish that on 3 April 1998, law enforcement officers apprehended defendant at a known drug house after he absconded with a house arrest unit around his ankle. After a brief chase, defendand was apprehended and arrested. A search incident to the arrest uncovered the house arrest unit and a pipe with copper tubing commonly known as a \u201cstraight shooter\u201d used to ingest crack cocaine. Gary McDonald, Chief of Police for the Cameron Police Department, testified that he recognized the pipe to be an \u201citem of drug paraphernalia\u201d that had been burned to ingest crack cocaine. McDonald further testified that the interior of the pipe contained a residue which, based on his training and experience, he knew to be cocaine.\nThe pipe was sent to the State Bureau of Investigation (\u201cSBI\u201d) for analysis. SBI forensic chemist Irving Allcocks testified that although the substance contained in the pipe was not weighed on a scale, \u201c[tjhere is no doubt\u201d that the substance was cocaine. He explained that when smoked in such a pipe, crack cocaine vaporizes from a solid into a gas. The person smoking the pipe inhales the vapors, and the inside of the pipe is left coated with cocaine residue.\nThe State was permitted to introduce the testimony of Officer Rodney Hardy of the Southern Pines Police Department regarding a 1994 incident involving defendant. Officer Hardy testified that defendant initiated contact with him, informed him that he was having difficulty dealing with his crack cocaine addiction, and requested to be placed \u201csomewhere where he could dry out.\u201d Officer Hardy told defendant that he could not arrest him based on this information, and that defendant should voluntarily commit himself to hospital treatment. Defendant then removed from his pocket a \u201cstraight shooter\u201d pipe and two baggies containing what Officer Hardy believed to be crack cocaine. Defendant was then placed under arrest. The trial court allowed Officer Hardy\u2019s testimony under the limiting instruction that it was only to be considered to the extent it might show defendant was in knowing possession of cocaine on 3 April 1998.\nOn 9 January 2001, a jury returned verdicts of guilty on charges of felonious possession of a schedule II controlled substance and of being an habitual felon. The trial court entered judgment thereon on 9 January 2001, sentencing defendant to 80 to 105 months in prison. Defendant was convicted earlier of possession of drug paraphernalia for his possession of the pipe, and was sentenced on 27 May 1998 to 120 days\u2019 imprisonment. Defendant does not appeal that judgment. Defendant appeals the 9 January 2001 judgment entered upon his convictions for possession of cocaine and being an habitual felon.\nDefendant makes four arguments on appeal: (1) the trial court erred in denying his motion to dismiss the possession charge for insufficient evidence; (2) his right to be free from double jeopardy was violated when he was convicted both of possessing drug paraphernalia (the pipe), and possessing the cocaine inside the pipe; (3) the trial court erred in denying his motion in limine to exclude evidence of the 1994 incident involving Officer Hardy; and (4) the trial court erred in denying his motion to dismiss the habitual felon indictment. For the reasons discussed below, we hold defendant received a fair trial.\nI.\nDefendant first argues the trial court erred in denying his motion to dismiss the possession charge for insufficient evidence. The State must present substantial evidence of each element of the crime charged. State v. Fleming, 350 N.C. 109, 142, 512 S.E.2d 720, 742, cert. denied, 528 U.S. 941, 145 L. Ed. 2d 274 (1999). \u201cWhen ruling on a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State; and the State is entitled to every reasonable inference to be drawn therefrom.\u201d Id.\nDefendant was convicted under N.C. Gen. Stat. \u00a7 90-95(a)(3) (1999), which makes it unlawful for any person \u201c[t]o possess a controlled substance.\u201d N.C. Gen. Stat. \u00a7 90-95(a)(3). The essence of defendant\u2019s argument is that he cannot be found guilty of possession of cocaine where the substance found in the pipe was merely residue left after the crack cocaine had vaporized, and thus was not itself cocaine, and that he cannot \u201cpossess\u201d something that cannot itself be held and weighed separate and apart from the pipe. We disagree.\nAlthough SBI forensic chemist Allcocks testified that the residue in the pipe resulted from the crack cocaine vaporizing from a solid into a gas, he clearly stated that the residue was nonetheless cocaine itself. Moreover, Allcocks did not testify that the cocaine was physically incapable of being weighed on any scale; rather, he stated that the cocaine was not weighed because SBI reporting procedures require that items be weighed to the tenth of a gram, and the residue quantity at issue fell somewhere between 1 to 100 milligrams.\nThis Court has previously held that a residue quantity of a controlled substance, despite its not being weighed, is sufficient to convict a defendant of possession of the controlled substance under N.C. Gen. Stat. \u00a7 90-95(a)(3). See State v. Thomas, 20 N.C. App. 255, 201 S.E.2d 201 (1973), cert. denied, 284 N.C. 622, 202 S.E.2d 277 (1974). In Thomas, the arresting officers confiscated a bottle cap that dropped from the defendant\u2019s pocket. Id. at 256, 201 S.E.2d at 202. The bottle cap, which contained a residue substance, was sent to the SBI laboratory for testing. Id. An SBI chemist testified that although the residue was not weighed, it contained the substance heroin. Id. The chemist testified that he would estimate the weight of the residue at \u201c \u2018a few milligrams,\u2019 and that while he did not quantitate the residue, \u2018only a small part of it was heroin.\u2019 \u201d Id. The defendant argued that he could not be convicted of possession of such a minuscule amount of heroin under N.C. Gen. Stat. \u00a7 90-95(a)(3). Id. at 257, 201 S.E.2d at 202. This Court rejected the argument, noting that N.C. Gen. Stat. \u00a7 90-95(a)(3) makes it unlawful for any person to possess a controlled substance \u201cwithout regard to the amount involved.\u201d Id.\nAs in Thomas, we observe that the plain language of N.C. Gen. Stat. \u00a7 90-95(a)(3), pursuant to which defendant was convicted, makes it unlawful for a person to \u201cpossess a controlled substance\u201d without regard to quantity. Defendant has failed to cite any authority establishing that a residue quantity of cocaine is insufficient to support his conviction. The trial court properly denied defendant\u2019s motion to dismiss.\nII.\nDefendant next argues his right to be free from double jeopardy was violated when he was convicted both of possession of drug paraphernalia based on his possession of the pipe, and of possession of cocaine, based on the cocaine residue present in the pipe. Defendant has failed to show that he objected on this basis at trial, the result being that this assignment of error is not properly preserved for appellate review. See N.C.R. App. R 10(b)(1). In any event, defendant\u2019s right to be free from double jeopardy cannot be violated by these convictions where each conviction requires proof of a fact or element that the other does not. See State v. Perry, 305 N.C. 225, 232, 287 S.E.2d 810, 814 (1982) (\u201c. . . \u2018if proof of an additional fact is required in the one prosecution, which is not required in the other, even though some of the same acts must be proved in the trial of each, the offenses are not the same, and the plea of [double] jeopardy cannot be sustained ....\u2019\u201d (citation omitted)).\nIII.\nBy his third argument, defendant argues the trial court erred in denying his motion in limine to exclude the testimony of Officer Hardy regarding the 1994 incident in which defendant removed from his pocket a crack pipe and two baggies containing what appeared to be crack cocaine. The trial court permitted the testimony under the limiting instruction that it was for the sole purpose of establishing defendant\u2019s knowing possession of cocaine in April 1998. Defendant failed to object during trial when Officer Hardy\u2019s testimony was offered.\nThis Court has recently held that an objection to the denial of a motion in limine is insufficient to preserve for appeal the issue of admissibility of the evidence. See State v. Gaither, 148 N.C. App. 534, 539-40, 559 S.E.2d 212, 215 (2002); see also State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (rulings on motions in limine \u201care preliminary in nature and subject to change at trial, . . . and \u2018thus an objection to an order granting or denying the motion \u201cis insufficient to preserve for appeal the question of the admissibility of the evidence\u201d \u2019 \u201d (citations omitted)).\nIn Gaither, we stated that when a party appeals the denial of a motion in limine following the entry of a final judgment, \u201cthe issue on appeal is not actually whether the granting or denying of the motion in limine was error, as that issue is not appealable, but instead \u2018whether the evidentiary rulings of the trial court, made during the trial, are error.\u2019 \u201d Gaither, 148 N.C. App. at 539, 559 S.E.2d at 215-16 (citation omitted). Thus, in order to preserve the issue of admissibility for appeal, a party must object to introduction of the evidence at the time it is offered at trial. Id. at 539, 559 S.E.2d at 215. Here, defendant failed to do so, and we decline to address this argument not properly preserved for our review.\nIV.\nIn his final argument, defendant sets forth five \u201cclaims\u201d as to why the trial court should have dismissed his habitual felon indictment. These exact \u201cclaims\u201d have already been addressed and rejected by this Court. First, defendant argues that the Structured Sentencing Act implicitly repealed the Habitual Felon Act because there is an irreconcilable conflict between the two, namely, that the laws conflict as to what kind of habitual offender deserves the most punishment. We specifically rejected an identical argument in State v. Parks, 146 N.C. App. 568, 553 S.E.2d 695 (2001), appeal dismissed and disc. review denied, 355 N.C. 220, 560 S.E.2d 355 (2002), wherein we stated: \u201cWe find no \u2018irreconcilable conflict\u2019 between the two Acts and note that North Carolina appellate courts have repeatedly upheld the use of the two Acts together, as long as different prior convictions justify each.\u201d Id. at 572, 553 S.E.2d at 697.\nSecond, defendant argues that the simultaneous application of the Structured Sentencing Act and the Habitual Felon Act violates his constitutional right to be free from double jeopardy. This specific argument has likewise been rejected. See State v. Brown, 146 N.C. App. 299, 301, 552 S.E.2d 234, 235 (noting our appellate courts have previously addressed and rejected double jeopardy challenges to this State\u2019s Habitual Felon Act), appeal dismissed and disc. review denied, 354 N.C. 576, 559 S.E.2d 186 (2001). In Brown, we observed that\nneither structured sentencing nor the Habitual Felons Act was used to punish the defendant for his prior convictions. Rather, both laws were used to enhance the defendant\u2019s punishment for his current offense. Therefore, we conclude the Habitual Felons Act used in conjunction with structured sentencing did not violate the defendant\u2019s double jeopardy protections.\nBrown, 146 N.C. App. at 302, 552 S.E.2d at 236.\nThird, defendant maintains that the Habitual Felon Act, as applied to him personally, violates his equal protection rights. Specifically, defendant argues that Moore County\u2019s general policy of indicting all eligible offenders as habitual felons, as opposed to exercising its discretion on a case by case basis, violates equal protection because not all counties have the same policy, and the law is thus being selectively applied. This Court addressed an identical challenge to Moore County\u2019s policy of indicting habitual felons in Parks. We held that the Moore County District Attorney properly exercised his discretion in deciding to prosecute all eligible offenders for habitual felon status, and that this policy did not violate the equal protection clause. Parks, 146 N.C. App. at 573, 553 S.E.2d at 697; see also State v. Brown, 146 N.C. App. 590, 591-92, 553 S.E.2d 428, 429 (2001) (likewise rejecting equal protection challenge to Moore County policy); State v. Wilson, 139 N.C. App. 544, 550-51, 533 S.E.2d 865, 870, appeal dismissed and disc. review denied, 353 N.C. 279, 546 S.E.2d 394 (2000).\nFourth, defendant argues that the Moore County prosecutor\u2019s failure to exercise his discretion in deciding whether to indict defendant as an habitual felon constituted a violation of the principle of separation of powers. This challenge to Moore County\u2019s policy of indicting all eligible habitual felons was at issue in Wilson. We rejected the argument, holding that \u201c[o]ur courts have held the procedures set forth in the Habitual Felon Act comport with a criminal defendant\u2019s federal and state constitutional guarantees.\u201d Wilson, 139 N.C. App. at 550, 533 S.E.2d at 870; see also Brown, 146 N.C. App. at 591-92, 553 S.E.2d at 429 (rejecting separation of powers challenge to Moore County policy of indicting all eligible offenders for habitual felon status).\nFinally, defendant argues that the Habitual Felon Act is ambiguous as to when one becomes an habitual felon. This Court has held that no such ambiguity exists. See Brown, 146 N.C. App. at 592-93, 553 S.E.2d at 429-30. These arguments are overruled. Defendant\u2019s trial and sentencing were free of error.\nNo error.\nJudges WALKER and BRYANT concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Anne M. Middleton, for the State.", "Cunningham, Dedmond, Petersen & Smith, L.L.P., by Bruce T. Cunningham, Jr. for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. VICTOR WAYNE WILLIAMS\nNo. COA01-632\n(Filed 16 April 2002)\n1. Drugs\u2014 cocaine possession \u2014 residue in crack pipe\nThe trial court did not err in a prosecution for possession of cocaine by denying defendant\u2019s motion to dismiss for insufficient evidence where the prosecution was based on residue found in a piece of tubing used to smoke crack and defendant argued that the residue left after the crack vaporized was not itself cocaine and that he could not possess something that could not be held and weighed separate and apart from the pipe. An SBI chemist testified that the residue was cocaine and did not testify that it could not be weighed, only that it was not weighed under SBI reporting procedures. N.C.G.S. \u00a7 90-95(a)(3) makes it unlawful for a person to possess a controlled substance without regard to quantity.\n2. Constitutional Law\u2014 double jeopardy \u2014 possession of cocaine \u2014 possession of paraphernalia \u2014 pipe containing residue\nDouble jeopardy was not violated by convictions for possession of drug paraphernalia and possession of cocaine based on possession of a pipe containing cocaine residue. Each conviction requires proof of a fact or element that the other does not.\n3. Appeal and Error\u2014 preservation of issues \u2014 motion in limine \u2014 no objection at trial\nThe denial of a motion in limine was not properly preserved for appellate review where defendant did not object to the introduction of the evidence at the time it was offered at trial.\n4. Sentencing\u2014 habitual offender statute\nAll of defendant\u2019s arguments for dismissal of his habitual felon indictment were rejected in other opinions.\nAppeal by defendant from judgment entered 9 January 2001 by Judge Melzer A. Morgan, Jr. in Moore County Superior Court. Heard in the Court of Appeals 13 March 2002.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Anne M. Middleton, for the State.\nCunningham, Dedmond, Petersen & Smith, L.L.P., by Bruce T. Cunningham, Jr. for defendant-appellant." }, "file_name": "0795-01", "first_page_order": 829, "last_page_order": 836 }