{ "id": 4174673, "name": "STATE OF NORTH CAROLINA v. KERRY McKINLEY HOUGH, Defendant", "name_abbreviation": "State v. Hough", "decision_date": "2010-03-02", "docket_number": "No. COA09-790", "first_page": "674", "last_page": "686", "citations": [ { "type": "official", "cite": "202 N.C. App. 674" } ], "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": "664 S.E.2d 355", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641602 ], "year": 2008, "pin_cites": [ { "page": "361", "parenthetical": "quoting State v. Squires, 357 N.C. 529, 535, 591 S.E.2d 837, 841 (2003), cert. denied, 124 S. Ct. 2818, 159 L. Ed. 2d 252 (2004)" } ], "opinion_index": 0, "case_paths": [ "/se2d/664/0355-01" ] }, { "cite": "617 S.E.2d 687", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633749 ], "year": 2005, "pin_cites": [ { "page": "695" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0687-01" ] }, { "cite": "648 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639153 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "297" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0862-01" ] }, { "cite": "616 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633494 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/616/0290-01" ] }, { "cite": "620 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634083, 12634084, 12634085 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/620/0196-01", "/se2d/620/0196-02", "/se2d/620/0196-03" ] }, { "cite": "613 S.E.2d 330", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632964 ], "opinion_index": 0, "case_paths": [ "/se2d/613/0330-01" ] }, { "cite": "613 S.E.2d 699", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633068 ], "year": 2005, "pin_cites": [ { "parenthetical": "expert in analyzing controlled substances relied on a non-testifying chemist's analyses in forming his expert opinion" } ], "opinion_index": 0, "case_paths": [ "/se2d/613/0699-01" ] }, { "cite": "124 S. Ct. 1354", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 5873383 ], "weight": 6, "year": 2004, "pin_cites": [ { "page": "1359", "parenthetical": "quoting U.S. Const, amend. VI" }, { "page": "187", "parenthetical": "quoting U.S. Const, amend. VI" }, { "page": "1364" }, { "page": "192" }, { "page": "1364" }, { "page": "193", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "2009 WL 3199891", "category": "reporters:specialty_west", "reporter": "WL", "weight": 2, "year": 2009, "pin_cites": [ { "page": "*5-6" }, { "page": "*5-6" } ], "opinion_index": 0 }, { "cite": "386 S.E.2d 187", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "325 N.C. 693", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488940 ], "year": 1989, "pin_cites": [ { "page": "697" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0693-01" ] }, { "cite": "187 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "714" } ], "opinion_index": 0 }, { "cite": "281 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573594 ], "year": 1972, "pin_cites": [ { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0001-01" ] }, { "cite": "346 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "480" } ], "opinion_index": 0 }, { "cite": "317 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4777645 ], "year": 1986, "pin_cites": [ { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0643-01" ] }, { "cite": "556 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "270", "parenthetical": "quoting State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986)" } ], "opinion_index": 0 }, { "cite": "354 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138558 ], "year": 2001, "pin_cites": [ { "page": "552", "parenthetical": "quoting State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0549-01" ] }, { "cite": "340 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "456" } ], "opinion_index": 0 }, { "cite": "316 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4701428 ], "year": 1986, "pin_cites": [ { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0087-01" ] }, { "cite": "159 L. Ed. 2d 252", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2004, "opinion_index": 0 }, { "cite": "124 S. Ct. 2818", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2004, "opinion_index": 0 }, { "cite": "591 S.E.2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "841" } ], "opinion_index": 0 }, { "cite": "357 N.C. 529", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491517 ], "year": 2003, "pin_cites": [ { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0529-01" ] }, { "cite": "173 N.C. App. 43", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352841 ], "year": 2005, "pin_cites": [ { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0043-01" ] }, { "cite": "676 S.E.2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "552" } ], "opinion_index": 0 }, { "cite": "508 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "513" } ], "opinion_index": 0 }, { "cite": "349 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571580 ], "year": 1998, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0382-01" ] }, { "cite": "514 F.3d 121", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 6048787 ], "year": 2008, "pin_cites": [ { "parenthetical": "medical examiner could testify as to his opinion on a cause of death when opinion was based on an autopsy report prepared by another person" } ], "opinion_index": 0, "case_paths": [ "/f3d/514/0121-01" ] }, { "cite": "172 L. Ed. 2d 19", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2008, "opinion_index": 0 }, { "cite": "129 S. Ct. 40", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 3845432, 3846924 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/br/395/0040-02", "/br/395/0040-01" ] }, { "cite": "512 F.3d 359", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 4071728 ], "year": 2008, "pin_cites": [ { "parenthetical": "holding the reviewing scientist \"was entitled to analyze the data that [the first scientist] had obtained\"; noting \"the Sixth Amendment does not demand that a chemist or other testifying expert have done the lab work himself'" } ], "opinion_index": 0, "case_paths": [ "/f3d/512/0359-01" ] }, { "cite": "591 F.3d 928", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3508961 ], "year": 2010, "pin_cites": [ { "parenthetical": "holding that the defendant's Sixth Amendment rights were not violated where a laboratory supervisor testified that his conclusions concerning cocaine identification were the same as the analyst who conducted the testing" } ], "opinion_index": 0, "case_paths": [ "/f3d/591/0928-01" ] }, { "cite": "173 L. Ed. 2d 1299", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 2009, "opinion_index": 0 }, { "cite": "129 S. Ct. 2378", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2009, "opinion_index": 0 }, { "cite": "537 F.3d 951", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 4130390 ], "year": 2008, "pin_cites": [ { "page": "960" } ], "opinion_index": 0, "case_paths": [ "/f3d/537/0951-01" ] }, { "cite": "185 N.C. App. 539", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8211123 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc-app/185/0539-01" ] }, { "cite": "172 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8318739 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0058-01" ] }, { "cite": "359 N.C. 856", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3797760, 3800637, 3793955, 3800560, 3793875, 3795348, 3794676, 3794260, 3803545, 3793693 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0856-05", "/nc/359/0856-04", "/nc/359/0856-07", "/nc/359/0856-08", "/nc/359/0856-02", "/nc/359/0856-10", "/nc/359/0856-01", "/nc/359/0856-09", "/nc/359/0856-06", "/nc/359/0856-03" ] }, { "cite": "170 N.C. App. 632", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9006375 ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0632-01" ] }, { "cite": "171 N.C. App. 141", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8435589 ], "year": 2005, "pin_cites": [ { "parenthetical": "expert in analyzing controlled substances relied on a non-testifying chemist's analyses in forming his expert opinion" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0141-01" ] }, { "cite": "683 S.E.2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2009, "pin_cites": [ { "page": "787" }, { "page": "787", "parenthetical": "emphasis added" }, { "page": "788" } ], "opinion_index": 0 }, { "cite": "681 S.E.2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2009, "pin_cites": [ { "page": "305", "parenthetical": "quoting Melendez-Diaz, 129 S. Ct. at 2532, 174 L. Ed. 2d at 322" }, { "page": "304" }, { "page": "305" } ], "opinion_index": 0 }, { "cite": "363 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151754 ], "year": 2009, "pin_cites": [ { "page": "452", "parenthetical": "quoting Melendez-Diaz, 129 S. Ct. at 2532, 174 L. Ed. 2d at 322" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0438-01" ] }, { "cite": "684 S.E.2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 13, "pin_cites": [ { "page": "210" }, { "page": "510" }, { "page": "510" }, { "page": "511" }, { "page": "512" }, { "page": "513" }, { "page": "511" }, { "page": "511" } ], "opinion_index": 0 }, { "cite": "345 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 736", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695936, 4703236, 4695283, 4696565, 4693374 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0736-05", "/nc/316/0736-04", "/nc/316/0736-03", "/nc/316/0736-02", "/nc/316/0736-01" ] }, { "cite": "339 S.E.2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "471" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 356", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520769 ], "pin_cites": [ { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0356-01" ] }, { "cite": "129 S. Ct. 2527", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 3657952 ], "weight": 11, "year": 2009, "pin_cites": [ { "page": "2541", "parenthetical": "\"The defendant always has the burden of raising his Confrontation Clause objection[.]\"" }, { "page": "331", "parenthetical": "\"The defendant always has the burden of raising his Confrontation Clause objection[.]\"" }, { "page": "2531" }, { "page": "320-21" }, { "page": "2531" }, { "page": "320" }, { "page": "2542" }, { "page": "332" }, { "page": "2532" }, { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/us/557/0305-01" ] } ], "analysis": { "cardinality": 1146, "char_count": 27945, "ocr_confidence": 0.752, "pagerank": { "raw": 1.2841555263774979e-07, "percentile": 0.6183012986471412 }, "sha256": "9c52b2a2460b64589a232ce3ade2041938ae33fe2eb3cfa3ff9a1ccf90ab1699", "simhash": "1:f86b616a44578c55", "word_count": 4565 }, "last_updated": "2023-07-14T21:18:34.741992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and JACKSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KERRY McKINLEY HOUGH, Defendant" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nKerry McKinley Hough (\u201cdefendant\u201d) appeals from judgments entered 10 December 2008 after a jury found him guilty of: (1) possession of cocaine and (2) trafficking in marijuana by possessing more than 10 pounds but less than 50 pounds. After careful review, we find no error.\nBackground\nOn 24 March 2007, Officers James Stansberry (\u201cOfficer Stansberry\u201d) and John Reid (\u201cOfficer Reid\u201d) of the Mecklenburg County Police Department, responded to a call reporting domestic violence at 106 Winding Canyon Drive. Upon arriving at the front door of the house, the officers noticed drops of blood on the porch. The officers knocked on the door and did not get a response. Due to the blood and lack of response from the home\u2019s occupants, the officers called for a medic unit to come to the scene.\nWhile waiting for the unit to arrive, the officers heard a slamming noise coming from the rear of the house. Upon investigation, the officers saw defendant rolling a city trash can behind the house. Defendant\u2019s face was bleeding. Officer Reid asked defendant if he lived at that residence and defendant responded affirmatively. The Officers testified at trial that defendant was behaving suspiciously in that he was attempting to keep the trash can between himself and the officers and did not seem concerned about the obvious injury to his face. Because of defendant\u2019s behavior, the officers believed that defendant was hiding something in the trash can that he did not want the officers to find. Officer Stansberry attempted to open the lid of the trash can twice, but each time defendant slammed the lid back down. Defendant stated that there was only \u201c \u2018trash in the can\u2019 \u201d and then he backed up with the trash can until he reached the right-rear corner of the residence.\nOfficer Stansberry then struggled with defendant and the trash can was knocked over. Defendant then ran from the scene with the officers in pursuit. Defendant evaded apprehension at that time. Upon returning to the back of the house, the officers saw that two packages had fallen out of the overturned trash can. The packages were the size and shape of telephone books and contained green leafy material. Based on the officers\u2019 training and experience, they believed the packaged substance to be marijuana. At that point, a \u201cvice officer\u201d was called to the scene to collect the evidence.\nBecause the officers had not encountered the female who was allegedly being assaulted at that residence, the officers entered the house to search for her. When Officer Stansberry entered the kitchen, he saw a trash can holding packaging similar to that containing the suspected marijuana outside. Upon searching the living room, the officers saw blood droplets on the floor and noticed that the room was in disarray as if a struggle had occurred there. The officers searched the entire residence and did not find anyone else inside.\nAfter searching the residence, Officer Stansberry went out to the carport area where he discovered a white powder substance on top of a \u201cvideo-type machine.\u201d The officers then called Detective Dan Kellough (\u201cDetective Kellough\u201d) who obtained a warrant to search the house for drugs. During the search, Detective Kellough seized the two packages of marijuana that fell out of the trash can outside. He weighed the packages at the scene, and together they weighed 18.6 pounds.\nThe detective also found a digital scale in the trash can, $1,660.00 inside a \u201cwash mit\u201d in the living room, as well as packaging material and tape in the kitchen. Detective Kellough testified that he also found seven empty wrapper packages in the kitchen trash can, five of which were the same size as the two packages found outside. One of the empty packages had \u201c22.5 lb.\u201d written on it in black magic marker and another package had \u201c22.2 lb.\u201d written on it as well as the number 156 with a circle around it. Detective Kellough also found an envelope with names and numbers written on one side. On the other side was the name Camellia Garmon with the address 106 Winding Canyon Drive. Detective Kellough testified that he believed the envelope to be a ledger used to record drug transactions. Mail was found throughout the residence with the names of defendant and Camellia Garmon listed as the recipients. A substance called Inositol was discovered, which Detective Kellough explained is typically added to cocaine to increase volume.\nIn the master bedroom, 12.3 grams of marijuana were seized. Men\u2019s and women\u2019s clothing were found in the bedroom, and underneath the bed, a piece of luggage was found with defendant\u2019s name on the identification tag. Also in the bedroom, officers found a cellular phone with defendant\u2019s name appearing on the screen saver as well as a picture of defendant. In the garage, Detective Kellough seized three bags of what he believed to be cocaine, which weighed 9.5 grams, 9.2 grams, and 9.4 grams, respectively. One of the vehicles in the driveway was registered to defendant and contained mail addressed to him and Camellia Garmon.\nAt trial, Kamika Daniels Alloway (\u201cAlloway\u201d), a forensic chemist with the Charlotte-Mecklenburg Police Department crime laboratory, testified that she reviewed the lab reports of retired forensic chemist Tony Aldridge (\u201cAldridge\u201d) and believed his analysis to be accurate. Alloway testified that the substance found in the trash can that defendant was rolling constituted 17.05 pounds of marijuana. The three bags recovered from the garage contained cocaine and weighed 7.93 grams, 7.72 grams, and 7.87 grams respectively. The weight of the cocaine and the marijuana varied from the weights recorded at the scene by Detective Kellough; however, Alloway testified that the weights in the lab report did not include the packaging. Alloway admitted on cross examination that she did not test any of the substances herself and was not present when Aldridge conducted the tests.\nOn 10 December 2008, the jury found defendant guilty of: (1) possession of cocaine and (2) trafficking in marijuana by possessing more than 10 pounds but less than 50 pounds. Defendant was sentenced to 25 to 30 months imprisonment and a second consecutive sentence of 6 to 8 months imprisonment, which was suspended on condition that defendant be placed on supervised probation.\nAnalysis\nI. Alloway Testimony\nDefendant makes two arguments pertaining to admission of Alloway\u2019s testimony concerning the controlled substances seized at his residence: (1) defendant\u2019s right to confrontation under the Sixth Amendment of the United States Constitution was violated; and (2) the testimony amounted to impermissible hearsay.\nAt trial, defendant made only general objections during Alloway\u2019s testimony. Accordingly, defendant has not preserved these arguments for appellate review. N.C. R. App. P. 10(c)(1); Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2541, 174 L. Ed. 2d 314, 331 (2009) (\u201cThe defendant always has the burden of raising his Confrontation Clause objection[.]\u201d); State v. Muncy, 79 N.C. App. 356, 364, 339 S.E.2d 466, 471 (\u201cIt is well established that appellate courts will not ordinarily pass on a constitutional question unless the question was raised in and passed upon by the trial court.\u201d), disc. review denied, 316 N.C. 736, 345 S.E.2d 396 (1986). \u201cHowever, the North Carolina Rules of Appellate Procedure allow review for \u2018plain error\u2019 in criminal cases even where the error is not preserved \u2018where the judicial action questioned is specifically and distinctly contended to amount to plain error.\u2019 \u201d State v. Mobley, \u2014 \u2022 N.C. App.-,-, 684 S.E.2d 508, 210 (quoting N.C. R. App. P. 10(c)(4) (amended Oct. 1, 2009)), disc. review denied, - \u2014 \u2022 N.C.-,-S.E.2d-(2010). Defendant has requested plain error review. \u201cThus, we review to determine whether the alleged error was such that it amounted to a fundamental miscarriage of justice or had a probable impact on the jury\u2019s verdict.\u201d Id. at-, 684 S.E.2d at 510. When reviewing a constitutional issue under the plain error standard of review, the State is not required to prove that the error was harmless beyond a reasonable doubt. Id. at-, 684 S.E.2d at 510.\nA. Confrontation Clause\nFirst, defendant argues that his constitutional right to confront the witnesses against him was violated when the trial court allowed an expert to testify to analysis that provided the composition and weight of the substances found in and around defendant\u2019s residence when the analysis was performed by someone other than the testifying expert.\n\u201cThe Sixth Amendment\u2019s Confrontation Clause provides that, \u2018[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.\u2019 \u201d Crawford v. Washington, 124 S. Ct. 1354, 1359, 158 L. Ed. 2d 177, 187 (2004) (quoting U.S. Const, amend. VI). Crawford held that a criminal defendant has the right to confront those who \u201cbear testimony\u201d against him. Id. at 1364, 158 L. Ed. 2d at 192. Such testimonial statements include \u201cextrajudicial statements[,]\u201d such as affidavits, or \u201cstatements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.\u201d Id. at 1364, 158 L. Ed. 2d at 193 (citation and quotation marks omitted).\nThe Supreme Court recently revisited the holding of Crawford stating that \u201c[a] witness\u2019s testimony against a defendant is . . . inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.\u201d Melendez-Diaz, 129 S. Ct. at 2531, 174 L. Ed. 2d at 320-21. In Melendez-Diaz, the State of Massachusetts presented at trial \u201ccertificates of analysis\u201d that served as \u201cprima facie evidence of the composition, quality, and the net weight of the narcotic\u201d defendant was alleged to have possessed. Id. at 2531, 174 L. Ed. 2d at 320. There was no accompanying testimony of an expert witness at trial. Id. The Court held that because the certificates were testimonial in nature, and the expert who performed the analysis was never subject to cross examination, the admission of the certificates was in error. Id. at 2542, 174 L. Ed. 2d at 332.\nIn applying Melendez-Diaz, our State Supreme Court held that \u201cwhen the State seeks to introduce forensic analyses, \u2018[ajbsent a showing that the analysts [are] unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them\u2019 such evidence is inadmissible under Crawford.\" State v. Locklear, 363 N.C. 438, 452, 681 S.E.2d 293, 305 (2009) (quoting Melendez-Diaz, 129 S. Ct. at 2532, 174 L. Ed. 2d at 322). la Locklear, the State tendered the testimony of Dr. John Butts, the Chief Medical Examiner for North Carolina, who presented the results of an autopsy performed by Dr. Karen Chancellor and the forensic dental analysis performed by Dr. Jeffrey Burkes. Id. at 451, 681 S.E.2d at 304. Dr. Butts did not testify to his own expert opinion; rather, he exclusively relayed the findings of Drs. Chancellor and Burkes. Id. The Court held that because the State sought to introduce evidence of forensic analyses performed by non-testifying experts, and the State failed to establish that the experts were unavailable to testify or had been subject to cross examination, the defendant\u2019s right to confront the witnesses against him was violated. Id. at 452, 681 S.E.2d at 305. However, the Court held that the error was harmless beyond a reasonable doubt. Id.\nSince our Supreme Court\u2019s holding in Locklear, two opinions from this Court have been issued that pertain to the admission of forensic analysis where the person performing the analysis did not testify at trial. In State v. Galindo, \u2014 N.C. App. \u2014, 683 S.E.2d 785, 787 (2009), Michael Aldridge, a chemist with the CharlotteMecklenburg police department, testified that evidence seized from the crime scene was, in fact, marijuana and cocaine. Aldridge explained to the jury the custody procedures at the lab and stated that the tests performed there were relied upon by experts in the field of forensic chemistry; however, his opinion regarding the substances seized was \u201cbased \u2018solely\u2019 on the [absent analyst\u2019s] lab report.\u201d Id. at-, 683 S.E.2d at 787 (emphasis added). This Court determined that the defendant\u2019s Sixth Amendment rights had been violated, but that the error was harmless beyond a reasonable doubt. Id. at-, 683 S.E.2d at 788.\nIn the Mobley case, this Court distinguished Locklear and held that the defendant\u2019s right to confrontation was not violated where \u201cthe testifying expert . . . testified not just to the results of other experts\u2019 tests, but to her own technical review of these tests, her own expert opinion of the accuracy of the non-testifying experts\u2019 tests, and her own expert opinion based on a comparison of the original data.\u201d N.C. App. -, 684 S.E.2d at 511. The Court further distinguished Melendez-Diaz, stating that in that case the analysis at issue was prima facie evidence that the substance was cocaine, while in the case at bar \u201cthe underlying report, which would be testimonial on its own, [was] used as a basis for the opinion of an expert who independently reviewed and confirmed the results, and [was] therefore not offered for the proof of the matter asserted under North Carolina case law.\u201d Id. at-, 684 S.E.2d at 512. Accordingly, the Court found no error. Id. at-, 684 S.E.2d at 513.\nWe find the case sub judice to be analogous to Mobley and find no error, much less plain error, in the admission of Alloway\u2019s testimony. Here, Alloway first testified to the laboratory\u2019s chain of custody procedures. She then explained in detail the process by which cocaine and marijuana are identified through various laboratory tests. Specifically, with regard to cocaine testing, she stated that \u201c[t]he laboratory requires you to do a preliminary test which consists of a color test as well as two confirmatory tests which could either be GC mass spec, GCFID, or an FTIR.\u201d Alloway then explained how each of these tests are conducted. She further detailed the procedure for testing and identifying marijuana.\nMost importantly, Alloway testified that on two occasions prior to trial she completed a \u201cpeer review\u201d of Aldridge\u2019s analysis in connection with this case, and it was her opinion that the test results were correct. Alloway testified as follows:\nQ. What does the peer review entail?\nA. A peer review consists of looking for. . . mainly errors in your analysis meaning they wouldn\u2019t come to the same conclusion that I came to. So if there is a discrepancy . . . usually a reanalysis is done if required. But for the most part I must say we\u2019re pretty good with not having to do the re-analysis. We pretty much come up with the same conclusion.\nQ. Did you review the work of Tony Aldridge bearing a complaint number of 20070324084802?\nA. Yes.\nQ. Within that complaint number did you review his work regarding two control numbers, one being 09933 and the other 09938?\nA. Yes.\nQ. When did you review that work?\nA. On Friday initially and also again today before court.\nQ. What tests were conducted on these particular specimens?\nA. On control number 200709933 a morphological exam was conducted as well as a GC and a mass spec.\nQ. With respect to 9938 what tests were done?\nA. On control number 200709938 a color test, a GC mass spec, and a FTIR was done.\nQ. Where the substances associated with those control number weighed?\nA. Yes.\nQ. Are those tests in accordance with your lab\u2019s procedure?\nA. Yes.\nQ. Ms. Alloway, if you would at this point may I ask you to describe each of the tests in laymen\u2019s terms as much as possible so that we can all get a feel for it. If you would begin first with the color test.\nAlloway then described the specific tests that were run in this case, which resulted in a conclusion that the two substances recovered from the crime scene were marijuana and cocaine. She also testified as to the weights of the drugs seized and explained that the drugs weighed less in the laboratory than at the crime scene because the substances were weighed without packaging in the lab. Alloway was asked: \u201cBased on your experience and review of these test results is it your opinion that the results are correct as published in those two reports?\u201d Alloway responded: \u201cYes.\u201d Alloway did not merely present the test results, or read verbatim from Aldridge\u2019s report; rather, she provided her own analysis and expert opinion regarding the accuracy of the reports based on her peer review.\nUpon review of Alloway\u2019s testimony, we conclude that her expert opinion was based on an independent review and confirmation of test results, unlike the situations presented in Melendez-Diaz, Locklear, and Galindo. As noted in Mobley, \u201c[w]ell-settled North Carolina case law allows an expert to testify to his or her own conclusions based on the testing of others in the field.\u201d Id. at \u2022 \u2014 , 684 S.E.2d at 511. The report at issue in this case formed the basis of Alloway\u2019s expert opinion, but was not offered for the proof of the matter asserted and was not prima facie evidence that the substances recovered from the crime scene were, in fact, marijuana and cocaine. It is not our position that every \u201cpeer review\u201d will suffice to establish that the testifying expert is testifying to his or her expert opinion; however, in this case, we hold that Alloway\u2019s testimony was sufficient to establish that her expert opinion was based on her own analysis of the lab reports.\nIn reviewing North Carolina and federal cases that relied on Crawford and were decided prior to Melendez-Diaz, we do not find that Melendez-Diaz abrogates those cases where the analyst who testified asserted his or her own expert opinion. See, e.g., State v. Delaney, 171 N.C. App. 141, 613 S.E.2d 699 (2005) (expert in analyzing controlled substances relied on a non-testifying chemist\u2019s analyses in forming his expert opinion); State v. Walker, 170 N.C. App. 632, 613 S.E.2d 330 (expert testified as to a forensic firearms report conducted by another), disc. review denied, 359 N.C. 856, 620 S.E.2d 196 (2005); State v. Watts, 172 N.C. App. 58, 616 S.E.2d 290 (2005), modified on other grounds after remand, 185 N.C. App. 539, 648 S.E.2d 862 (2007)\nOther federal courts have reached this same conclusion under similar facts. In United States v. Richardson, 537 F.3d 951, 960 (8th Cir. 2008), cert. denied, 129 S. Ct. 2378, 173 L. Ed. 2d 1299 (2009), the court held that while the testifying analyst did not perform the DNA testing, which established that the defendant\u2019s DNA was present on the gun he unlawfully possessed, she testified at trial concerning \u201cher own independent conclusions and was subject to cross examination.\u201d Moreover, the testifying expert had conducted a \u201cpeer review,\u201d which was her independent responsibility. Id. The court found no Sixth Amendment violation. Id.; see also United States v. Turner, 591 F.3d 928 (7th Cir. 2010) (holding that the defendant\u2019s Sixth Amendment rights were not violated where a laboratory supervisor testified that his conclusions concerning cocaine identification were the same as the analyst who conducted the testing); United States v. Moon, 512 F.3d 359 (7th Cir. 2008) (holding the reviewing scientist \u201cwas entitled to analyze the data that [the first scientist] had obtained\u201d; noting \u201cthe Sixth Amendment does not demand that a chemist or other testifying expert have done the lab work himself\u2019), cert. denied, 129 S. Ct. 40, 172 L. Ed. 2d 19 (2008); United States v. De La Cruz, 514 F.3d 121 (1st Cir. 2008) (medical examiner could testify as to his opinion on a cause of death when opinion was based on an autopsy report prepared by another person).\nIn sum, we hold that defendant\u2019s Sixth Amendment right to confront the witnesses against him was not violated since Alloway\u2019s testimony was based on her own expert opinion, even though she did not conduct the original testing of the substances.\nB. Hearsay\nDefendant argues that Alloway\u2019s testimony amounted to impermissible hearsay since the analysis that formed the basis of her opinion was performed by another person.\nHearsay is defined as \u201ca statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801(c). \u201cHowever, out-of-court statements offered for purposes other than to prove the truth of the matter asserted are not considered hearsay.\u201d State v. Call, 349 N.C. 382, 409, 508 S.E.2d 496, 513 (1998). \u201cOur standard of review on this issue is de novo.\" State v. Miller,-N.C. App.-,-, 676 S.E.2d 546, 552 (2009).\n\u201cThis Court has held that evidence offered as the basis of an expert\u2019s opinion is not being offered for the truth of the matter asserted.\u201d Mobley, -N.C. App. at-, 684 S.E.2d at 511; see also State v. Bethea, 173 N.C. App. 43, 55, 617 S.E.2d 687, 695 (2005). Accordingly, Alloway\u2019s testimony did not constitute hearsay even though it was based, in part, on reports generated by another expert. This assignment of error is without merit.\nII. Motion to Dismiss\nFinally, defendant argues that the trial court erred in denying his motion to dismiss the charges at the close of evidence as there was insufficient evidence to establish that he constructively possessed the controlled substances.\nIn determining the sufficiency of the evidence to withstand a motion to dismiss and to be submitted to the jury, the trial court must determine \u201cwhether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense.\u201d We have previously defined substantial evidence as \u201csuch relevant evidence as is necessary to persuade a rational juror to accept a conclusion.\u201d When ruling on a defendant\u2019s motion to dismiss, the trial court must review the evidence in the light most favorable to the state and determine whether the evidence is sufficient to get the case to the jury.\nState v. Banks, -N.C. App. -\u2022, \u2014 , 664 S.E.2d 355, 361 (2008) (quoting State v. Squires, 357 N.C. 529, 535, 591 S.E.2d 837, 841 (2003), cert. denied, 124 S. Ct. 2818, 159 L. Ed. 2d 252 (2004)).\n\u201c[I]n a prosecution for possession of contraband materials, the prosecution is not required to prove actual physical possession of the materials.\u201d State v. Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986). \u201cProof of nonexclusive, constructive possession is sufficient. Constructive possession exists when the defendant, \u2018while not having actual possession, . . . has the intent and capability to maintain control and dominion over\u2019 the narcotics.\u201d State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986)). \u201cWhere such materials are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession.\u201d State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). \u201cHowever, unless the person has exclusive possession of the place where the narcotics are found, the State must show other incriminating circumstances before constructive possession may be inferred.\u201d State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989).\nHere, the evidence tended to show that defendant and Camellia Garmon resided at the house where the controlled substances were seized. Defendant admitted to Officers Stansberry and Reid that he lived there, and upon searching the residence, personal items such as luggage, mail, and a cellular telephone were found with defendant\u2019s name on them. Defendant\u2019s car was also parked in the driveway. Though there was evidence that defendant did not exclusively control the premisses, there was sufficient evidence to establish constructive possession. At the time the officers arrived, there was no indication that anyone else was present in the house and the search revealed no other occupants. Moreover, defendant was pushing the trash can that contained the bulk of the marijuana seized, acted suspiciously when approached by the officers, and ran when Officer Stansberry attempted to lift the lid. In light of the circumstances, we hold that there was sufficient evidence to establish constructive possession. Therefore, the trial court did not err in denying defendant\u2019s motion to dismiss.\nConclusion\nWe hold that Alloway\u2019s testimony did not violate defendant\u2019s right to confrontation and did not constitute hearsay. We further hold that the trial court did not err in denying defendant\u2019s motion to dismiss.\nNo error.\nJudges BRYANT and JACKSON concur.\n. Defendant argues that Melendez-Diaz created a new rule of law and therefore his failure to object did not violate the Rules of Appellate Procedure. Defendant\u2019s argument is disingenuous at best. The proper objection was pursuant to the Confrontation Clause, hardly a new rule of law.\n. A third case, State v. Steele,-N.C. App.-,-S.E.2d-(COA-09-498) (Jan. 5, 2010), has also been published; however, the facts of that case pertain to the defendant\u2019s failure to object to a lab report pursuant to the State\u2019s notice-and-demand statute and is not pertinent to our analysis in the case sub judice.\n. The holding in Watts has since been reviewed by the Federal District Court for the Middle District of North Carolina in Watts v. Thomas, 2009 WL 3199891, at *5-6 (M.D.N.C. Sept. 25, 2009), upon a petition for habeas corpus. In Watts, 172 N.C. App. at 67, 648 S.E.2d at 297, this Court held that the defendant\u2019s right to confrontation under Crawford was not violated where the analyst who testified concerning DNA evidence testified to his own opinion based on tests run by another analyst. The federal court acknowledged that the parties made arguments based on the holding of Melendez-Diaz; however, the court\u2019s analysis focused on Crawford since that was the only Supreme Court precedent available at the time of the defendant\u2019s appeal in state court. Watts, 2009 WL 3199891, at *5-6. Ultimately, the federal court held that this Court\u2019s analysis was not contrary to the application of Supreme Court precedent and denied the defendant\u2019s habeas petition. Id. at *6.", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Daniel D. Addison, for the State.", "Robert W. Ewing for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KERRY McKINLEY HOUGH, Defendant\nNo. COA09-790\n(Filed 2 March 2010)\n1. Constitutional Law\u2014 right to confront witnesses \u2014 expert witness \u2014 opinion based on another\u2019s testing\nDefendant\u2019s Sixth Amendment right to confront the witnesses against him was not violated in a cocaine and marijuana prosecution where a forensic chemist\u2019s testimony identifying the substances was based on her own opinion, even though she did not conduct the original testing. Her testimony was based on her independent review and confirmation of test results, and the report was not offered for proof of the matter asserted or as prima facie evidence that the substances were marijuana and cocaine.\n2. Evidence\u2014 hearsay \u2014 drug analysis \u2014 nontestifying chemist\nTestimony by a forensic chemist that was based on an analysis by another chemist was not hearsay. Evidence offered as the basis of an expert\u2019s opinion is not offered for the truth of the matter asserted.\n3. Drugs\u2014 constructive possession \u2014 non-exclusive control of premises\nThe trial court did not err by denying defendant\u2019s motion to dismiss charges of possession of cocaine and trafficking in marijuana where there was sufficient evidence of constructive possession, even though there was evidence that defendant did not exclusively control the premises.\nAppeal by defendant from judgments entered 10 December 2008 by Judge Calvin E. Murphy in Mecklenburg County Superior Court. Heard in the Court of Appeals 18 November 2009.\nAttorney General Roy A. Cooper, III, by Special Deputy Attorney General Daniel D. Addison, for the State.\nRobert W. Ewing for defendant-appellant." }, "file_name": "0674-01", "first_page_order": 702, "last_page_order": 714 }