{ "id": 8354381, "name": "STATE OF NORTH CAROLINA v. WAYNE ANTONIO BUNN, Defendant", "name_abbreviation": "State v. Bunn", "decision_date": "2005-10-18", "docket_number": "No. COA04-1683", "first_page": "729", "last_page": "734", "citations": [ { "type": "official", "cite": "173 N.C. App. 729" } ], "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": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2004, "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "154 L. Ed. 2d 808", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "537 U.S. 1125", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9346112, 9346147, 9346340, 9346181, 9346084, 9346053, 9346027, 9346413, 9346288, 9346451, 9346233, 9345946, 9345980, 9345918, 9346495 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/537/1125-07", "/us/537/1125-08", "/us/537/1125-12", "/us/537/1125-09", "/us/537/1125-06", "/us/537/1125-05", "/us/537/1125-04", "/us/537/1125-13", "/us/537/1125-11", "/us/537/1125-14", "/us/537/1125-10", "/us/537/1125-02", "/us/537/1125-03", "/us/537/1125-01", "/us/537/1125-15" ] }, { "cite": "565 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "654" } ], "opinion_index": 0 }, { "cite": "355 N.C. 501", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219972 ], "year": 2002, "pin_cites": [ { "page": "578-79" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0501-01" ] }, { "cite": "567 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "139" }, { "page": "140", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "356 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511311 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "145" }, { "page": "145" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0141-01" ] }, { "cite": "604 S.E.2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "904" } ], "opinion_index": 0 }, { "cite": "359 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3803286 ], "year": 2004, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0131-01" ] }, { "cite": "161 L. Ed. 2d 122", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2004, "opinion_index": 0 }, { "cite": "472 S.E.2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "925" } ], "opinion_index": 0 }, { "cite": "344 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867565 ], "year": 1996, "pin_cites": [ { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0065-01" ] }, { "cite": "597 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "746", "parenthetical": "quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)" }, { "page": "746", "parenthetical": "citations omitted" }, { "page": "746", "parenthetical": "citations omitted" }, { "page": "746", "parenthetical": "stating that \"contradictions and discrepancies are for the jury to resolve and do not warrant dismissal.\"" } ], "opinion_index": 0 }, { "cite": "358 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986879 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "412", "parenthetical": "quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)" }, { "page": "412" }, { "page": "412-13" }, { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0382-01" ] }, { "cite": "153 L. Ed. 2d 162", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "535 U.S. 1114", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 354625, 353731, 354760, 353448, 352172, 354576, 355188, 353749, 351828, 354680, 354745, 352827, 353947, 354297 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/535/1114-11", "/us/535/1114-05", "/us/535/1114-06", "/us/535/1114-02", "/us/535/1114-09", "/us/535/1114-03", "/us/535/1114-10", "/us/535/1114-08", "/us/535/1114-07", "/us/535/1114-13", "/us/535/1114-04", "/us/535/1114-14", "/us/535/1114-12", "/us/535/1114-01" ] }, { "cite": "557 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "522" }, { "page": "522" } ], "opinion_index": 0 }, { "cite": "354 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138455 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "162" }, { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0131-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 9, "year": 2004, "pin_cites": [ { "page": "68" }, { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "322 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1984, "pin_cites": [ { "page": "120", "parenthetical": "citations omitted" }, { "page": "120", "parenthetical": "citation omitted" }, { "page": "120", "parenthetical": "citation omitted" }, { "page": "120" } ], "opinion_index": 0 }, { "cite": "312 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4759870 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "108", "parenthetical": "citations omitted" }, { "page": "107" }, { "page": "108" }, { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0092-01" ] } ], "analysis": { "cardinality": 591, "char_count": 13092, "ocr_confidence": 0.696, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20286839116875155 }, "sha256": "064ae5cb353207678243e45a8803d0e047ed35588461ef8f5acb1c4ec962846d", "simhash": "1:cf2db572db9e0872", "word_count": 2101 }, "last_updated": "2023-07-14T20:45:28.578783+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and LEVINSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WAYNE ANTONIO BUNN, Defendant" ], "opinions": [ { "text": "WYNN, Judge.\n. \u201cThe admission into evidence of expert opinion based upon information not itself admissible into evidence does not violate the Sixth Amendment guarantee of the right of an accused to confront his accusers where the expert is available for cross-examination.\u201d State v. Huffstetler, 312 N.C. 92, 108, 322 S.E.2d 110, 120 (1984) (citations omitted). In this case, Defendant contends that expert testimony based on analyses conducted by someone other than the testifying expert violated his right to confrontation under the rationale of Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). Because Defendant had an opportunity to cross-examine the expert, and because the analyses on which the expert testimony was based were not hearsay, we affirm the trial court\u2019s admission of the expert testimony. We also uphold the trial court\u2019s denial of Defendant\u2019s motion to dismiss his conviction of possession of cocaine with intent to sell.\nThe State presented evidence tending to show that on 13 November 1999, two undercover Rocky Mount Police Officers approached Defendant Wayne Antonio Bunn and asked if they could \u201cget hooked up\u201d with drugs. Defendant advised the undercover officers that he could get them marijuana or cocaine if they gave him some of the money for the drugs first. The officers gave Defendant thirty or forty dollars, and Defendant returned with two bags of marijuana and one bag of cocaine. Video surveillance equipment in the officers\u2019 vehicle recorded the drug transaction with Defendant.\nAfter the drug transaction, the undercover officers secured the drugs in the \u201cbags they came in,\u201d and gave them to Officer Greg Brown who testified that lie put the drugs into evidence bags and placed them in a secure evidence bin inside the police department. Testing by the State Bureau of Investigation showed the drugs to be cocaine.\nAt trial, the State presented as an exhibit a green baggie containing cocaine \u2014 State\u2019s Exhibit Number Two. When asked about the \u201cgreen thing\u201d in State\u2019s Exhibit Number Two, one of the undercover officers testified that \u201c[the green thing is] the baggie that it [the cocaine] was sold in.\u201d However, in his earlier testimony, the undercover officer said that he received cocaine from Defendant in a \u201cclear pink type baggie.\u201d Moreover, the undercover officer\u2019s supplemental police report states that the officers received cocaine from Defendant in a \u201csmall pink plastic bag.\u201d Defendant did not present any evidence.\nDefendant was found guilty of possession with intent to sell and deliver marijuana, sale and delivery of marijuana, and possession with intent to sell and deliver cocaine. The jury deadlocked on the charge of selling cocaine. The trial court consolidated the marijuana convictions and sentenced Defendant to two consecutive sentences of eight to ten months imprisonment. Defendant appealed.\nOn appeal, Defendant argues that the trial court committed plain error by allowing the prosecution to introduce evidence of the chemical analyses performed by a non-testifying chemist because the admission of that evidence violated his confrontation rights under the rationale of Crawford, 541 U.S. 36, 158 L. Ed. 2d 177. We disagree.\nIn Crawford, the United States Supreme Court held that a recorded out-of-court statement made by the defendant\u2019s wife to the police regarding the defendant\u2019s alleged stabbing of another, which was introduced as hearsay at trial, was testimonial in nature and thus inadmissible due to Confrontation Clause requirements. Id. Regarding nontestimonial evidence, the Supreme Court stated: \u201cWhere non-testimonial hearsay is at issue, it is wholly consistent with the Framers\u2019 design to afford the States flexibility in their development of hearsay law ... as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.\u201d Id. at 68, 158 L. Ed. 2d at 203. Crawford made explicit that its holding was not applicable to evidence admitted for reasons other than proving the truth of the matter asserted. Id. at 60 n.9, 158 L. Ed. 2d at 198 n.9 (stating that the Confrontation \u201cClause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted\u201d) (citation omitted).\nUnder North Carolina case law, \u201ctestimony as to information relied upon by an expert when offered to show the basis for the expert\u2019s opinion is not hearsay, since it is not offered as substantive evidence.\u201d Huffstetler, 312 N.C. at 107, 322 S.E.2d at 120 (citation omitted). Indeed, our Supreme Court has stated that \u201c[i]t is the expert opinion itself, not its underlying factual basis, that constitutes substantive evidence^\u201d and that \u201c[a]n expert may properly base his or her opinion on tests performed by another person, if the tests are of the type reasonably relied upon by experts in the field.\u201d State v. Fair, 354 N.C. 131, 162, 557 S.E.2d 500, 522 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002).\nRegarding expert testimony and the Confrontation Clause, our Supreme Court has held that \u201c[t]he admission into evidence of expert opinion based upon information not itself admissible into evidence does not violate the Sixth Amendment guarantee of the right of an accused to confront his accusers where the expert is available for cross-examination.\u201d Huffstetler, 312 N.C. at 108, 322 S.E.2d at 120 (citation omitted).\nIn the case sub judice, after a recitation of his credentials, Special Agent Robert Evans was tendered and accepted, without objection by Defendant, as an expert in forensic drug examination. Special Agent Evans, after a thorough review of the methodology undertaken by his colleague, relied on his colleague\u2019s analyses in forming his opinion that the substance sold to the undercover officers was cocaine, and his opinion was based on data reasonably relied upon by others in the field. See Fair, 354 N.C. at 162, 557 S.E.2d at 522. We reject Defendant\u2019s argument that Special Agent Evans merely read the laboratory report into evidence. It is clear that Special Agent Evans\u2019s testimony was expert testimony as to the nature of the seized substance as cocaine. We hold that the lab analysis was not tendered to prove the truth of the matter asserted therein, but to demonstrate the basis of Agent Evans\u2019s opinion.\nSince it is well established that an expert may base an opinion on tests performed by others in the field and Defendant was given an opportunity to cross-examine Special Agent Evans on the basis of his opinion, we- conclude that Crawford does not apply to the circumstances presented in this case. See Huffstetler, 312 N.C. at 108, 322 S.E.2d at 120. Thus, we hold that there has been no violation of Defendant\u2019s right of confrontation.\nDefendant next contends that the trial court committed reversible error in denying his motion to dismiss on the basis of insufficient evidence to support his conviction of possession of cocaine with intent to sell. We disagree.\n\u201cWhen a defendant moves to dismiss a charge against him on the ground of insufficiency of the evidence, the trial court must determine \u2018whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.\u2019 \u201d State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)), cert. denied, - U.S. -, 161 L. Ed. 2d 122; see also State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004); State v. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 139 (2002).\n\u201c \u2018Substantial evidence\u2019 is relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion.\u201d Garcia, 358 N.C. at 412, 597 S.E.2d at 746 (citations omitted); see also State v. Williams, 355 N.C. 501, 578-79, 565 S.E.2d 609, 654 (2002), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003). Moreover,\n[a]\u2018substantial evidence\u2019 inquiry examines the sufficiency of the evidence presented but not its weight. The reviewing court considers all evidence in the light most favorable to the State, and the State receives the benefit of every reasonable inference supported by that evidence. Evidentiary \u2018[contradictions and discrepancies are for the jury to resolve and do not warrant dismissal.\u2019\nGarcia, 358 N.C. at 412-13, 597 S.E.2d at 746 (citations omitted). Additionally, \u201c \u2018[i]f there is substantial evidence \u2014 whether direct, circumstantial, or both \u2014 to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.\u2019 \u201d Butler, 356 N.C. at 145, 567 S.E.2d at 140 (citation omitted).\nTo convict a defendant of cocaine possession with intent to sell or deliver, the State must prove the following elements: 1) knowing; 2) possession; 3) of cocaine; 4) with the intent to sell or deliver. N.C. Gen. Stat. \u00a7 90-95(a)(l) (2004). Defendant asserts on appeal that the State did not establish the proper chain of custody, and that there was no substantial evidence upon which to conclude the substance in the pink baggie allegedly possessed by Defendant was the same substance in the green baggie tested by a State Bureau of Investigation agent. In viewing all evidence in the light most favorable to the State, and giving the State the benefit of every reasonable inference supported by that evidence, we conclude that there is substantial evidence to establish that Defendant possessed the controlled substance of cocaine.\nIndeed, the record reveals that one of the undercover officers testified that they approached Defendant and asked if they could \u201cget hooked up\u201d with drugs. Defendant advised the undercover officers that he could get them marijuana or cocaine if they gave him money first. The officers gave Defendant money, and Defendant returned with two bags of marijuana and one bag of cocaine. Special Agent Evans of the State Bureau of Investigation testified that the substance submitted for testing relating to Defendant was, in fact, cocaine.\nWhen the testimony of the undercover officer is considered in conjunction with the video surveillance tape of the drug transaction and the testimony of Special Agent Evans, we find that there is substantial evidence to support Defendant\u2019s conviction. Moreover, any conflicting testimony about the color of the baggie containing the cocaine Defendant sold to the undercover officers is a discrepancy in the State\u2019s evidence, properly considered by the jury in weighing the reliability of the evidence. See Garcia, 358 N.C. at 412, 597 S.E.2d at 746 (stating that \u201ccontradictions and discrepancies are for the jury to resolve and do not warrant dismissal.\u201d) We therefore hold that the trial court did not err in denying Defendant\u2019s motion to dismiss.\nSince Defendant failed to argue his remaining assignments of error, they are deemed abandoned. N.C. R. App. R 28(b).\nAffirmed.\nJudges CALABRIA and LEVINSON concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Scott K. Beaver, for the State.", "Jarvis John Edgerton, IV, for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WAYNE ANTONIO BUNN, Defendant\nNo. COA04-1683\n(Filed 18 October 2005)\n1. Constitutional Law\u2014 right to confrontation \u2014 nontestimo-nial evidence\nThe trial court did not commit plain error in a possession with intent to sell and deliver marijuana, sale and delivery of marijuana, and possession of cocaine with intent to sell case by allegedly violating defendant\u2019s right to confrontation arising from the use of expert testimony based on chemical analyses conducted by a nontestifying chemist, because: (1) defendant had an opportunity to cross-examine the expert; (2) the analyses on which the expert testimony was based were not hearsay since it was not offered for the truth of the matter asserted, but rather to demonstrate the basis of the expert\u2019s testimony; and (3) it is well-established that an expert may base an opinion on tests performed by others in the field.\n2. Drugs\u2014 possession of cocaine with intent to sell \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of possession of cocaine with intent to sell, because: (1) there was substantial evidence to establish that defendant possessed the controlled substance of cocaine including testimony from undercover officers in conjunction with the video surveillance tape of the drug transaction; and (2) any discrepancy in the State\u2019s evidence, such as the color of the baggie containing the cocaine defendant sold to the undercover officers, is properly considered by the jury in weighing the reliability of the evidence.\n3. Appeal and Error\u2014 preservation of issues \u2014 failure to argue\nThe remaining assignments of error that defendant failed to argue are deemed abandoned under N.C. R. App. P. 28(b).\nAppeal by Defendant from judgment entered 11 June 2004 by Judge Quentin T. Sumner in Superior Court, Nash County. Heard in the Court of Appeals 20 September 2005.\nAttorney General Roy Cooper, by Assistant Attorney General Scott K. Beaver, for the State.\nJarvis John Edgerton, IV, for the defendant-appellant." }, "file_name": "0729-01", "first_page_order": 759, "last_page_order": 764 }