{ "id": 4180515, "name": "STATE OF NORTH CAROLINA v. CHRIS ALAN JONES", "name_abbreviation": "State v. Jones", "decision_date": "2010-12-21", "docket_number": "No. COA10-475", "first_page": "734", "last_page": "738", "citations": [ { "type": "official", "cite": "208 N.C. App. 734" } ], "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": "470 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "73", "parenthetical": "holding that the manner a controlled substance is packaged may be considered in establishing intent to sell and deliver" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 369", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917298 ], "year": 1996, "pin_cites": [ { "page": "373", "parenthetical": "holding that the manner a controlled substance is packaged may be considered in establishing intent to sell and deliver" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0369-01" ] }, { "cite": "601 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "876", "parenthetical": "holding that erroneously admitted evidence may be considered when ruling on a motion to dismiss" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 477", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411629 ], "year": 2004, "pin_cites": [ { "page": "482", "parenthetical": "holding that erroneously admitted evidence may be considered when ruling on a motion to dismiss" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0477-01" ] }, { "cite": "467 S.E.2d 12", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "23" } ], "opinion_index": 0 }, { "cite": "342 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795977 ], "year": 1996, "pin_cites": [ { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0523-01" ] }, { "cite": "400 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "61" } ], "opinion_index": 0 }, { "cite": "328 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541929 ], "year": 1991, "pin_cites": [ { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0231-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "652", "parenthetical": "quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "66", "parenthetical": "quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "117" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "669 S.E.2d 640", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 3709930 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/sc/380/0336-01" ] }, { "cite": "364 N.C. 245", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "687 S.E.2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "309" } ], "opinion_index": 0 }, { "cite": "700 S.E.2d 153", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "158", "parenthetical": "holding that lay opinion based on physical appearance is not enough to identify crack-cocaine" } ], "opinion_index": 0 }, { "cite": "694 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "743-44" } ], "opinion_index": 0 }, { "cite": "364 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152316 ], "year": 2010, "pin_cites": [ { "page": "142-43" } ], "opinion_index": 0, "case_paths": [ "/nc/364/0133-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "174 L. Ed. 2d 314", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 3657952 ], "year": 2009, "pin_cites": [ { "page": "321-22", "parenthetical": "holding that reports of chemical analyses were testimonial in nature, and subject to the Confrontation Clause requirements" } ], "opinion_index": 0, "case_paths": [ "/us/557/0305-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "50-52" }, { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "409 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "300" } ], "opinion_index": 0 }, { "cite": "330 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511523 ], "year": 1991, "pin_cites": [ { "page": "22" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0001-01" ] } ], "analysis": { "cardinality": 517, "char_count": 10340, "ocr_confidence": 0.715, "pagerank": { "raw": 4.947487136851577e-08, "percentile": 0.3113059873374857 }, "sha256": "33a706f234c4cca13f3595641fb5961ddfdc4299ba54056e4e3c51f904b9ac5b", "simhash": "1:a77f71fa943e9569", "word_count": 1619 }, "last_updated": "2023-07-14T21:19:36.775795+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and STROUD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CHRIS ALAN JONES" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nDefendant was indicted upon charges of possession of cocaine with intent to sell or deliver, assault on a government official, and having attained habitual felon status. Defendant pled not guilty.\nThe evidence at trial tended to show that on 28 May 2008, Officer Greg Tucker of the Charlotte-Mecklenburg County Police Department (CMPD) was attempting to serve a warrant on defendant. When Officer Tucker approached, defendant ran away. Officer Tucker chased defendant and a scuffle between the two ensued. Defendant threw punches with his left hand, keeping his right hand in his jacket pocket. During the scuffle, defendant\u2019s jacket came off. Once defendant was subdued and handcuffed, he was taken to the police vehicle. After defendant was secured in the vehicle, Officer Tucker retrieved defendant\u2019s jacket and found a substance which he identified as cocaine in the right jacket pocket.\nAt trial, Officer Tucker testified, without objection, that he was able to identify the substance. He detailed for the jury that he had four years of experience and training in identifying illegal substances while working at CMPD. Officer Tucker also testified, without objection, that the 22 rocks of cocaine were packaged individually, which, in his experience, was typical for drugs meant for individual sale.\nThe trial court also admitted, without objection, a chemical analysis report written by CMPD crime lab technician Anne Charlesworth. Ms. Charlesworth\u2019s report detailed the chemical analysis she did on the substance and her conclusion that the substance was cocaine. She did not testify at trial.\nDefendant did not offer any evidence. The jury found him guilty of possession of cocaine with intent to sell or deliver and assault upon a government official. In a subsequent separate proceeding, the jury also found that defendant had attained the status of an habitual felon. Defendant was sentenced to 130 to 165 months\u2019 imprisonment. He appeals. _\nOn appeal, defendant contends the trial court committed plain error when it admitted Charlesworth\u2019s report into evidence and allowed Officer Tucker to testify as to the results of Charlesworth\u2019s chemical analysis, and permitted Officer Tucker to testify that the substance he found in defendant\u2019s jacket was cocaine. We agree and conclude defendant is entitled to a new trial.\nDefendant challenges the admission of the chemical analysis report that was prepared by Anne Charlesworth and testified about by Officer Tucker at trial on the basis that his Sixth Amendment Confrontation Clause rights were violated. The report summarized testing done by Ms. Charlesworth and concluded that the substance found in defendant\u2019s jacket was cocaine. Ms. Charlesworth did not testify at trial.\nDefendant did not object to Officer Tucker\u2019s testimony or the admission of Ms. Charlesworth\u2019s report; therefore, our review is limited to a determination of whether the admission of this evidence amounted to \u201cplain error.\u201d \u201cPlain error\u201d has been defined as including error so grave as to deny a fundamental right of the defendant so that, absent the error, the jury would have reached a different result. State v. Robinson, 330 N.C. 1, 22, 409 S.E.2d 288, 300 (1991).\nThe Confrontation Clause prohibits testimonial statements from an unavailable witness being presented at trial without the defendant having an opportunity to cross-examine the witness prior to trial. Crawford v. Washington, 541 U.S. 36, 50-52, 158 L. Ed. 2d 177, 187 (2004). It is clear that Ms. Charlesworth\u2019s report was testimonial in nature. See Melendez-Diaz v. Massachusetts, \u2014 U.S. \u2014, \u2014, 174 L. Ed. 2d 314, 321-22 (2009) (holding that reports of chemical analyses were testimonial in nature, and subject to the Confrontation Clause requirements). There was no evidence that defendant had an opportunity to cross-examine Ms. Charlesworth. Therefore, admitting the report and permitting Officer Tucker to testify to its contents violated defend-ant\u2019s Confrontation Clause rights.\n\u201cA violation of the defendant\u2019s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.\u201d N.C. Gen. Stat. \u00a7 15A-1443(b) (2009).\nDefendant was charged with possession of cocaine with intent to sell or deliver. This charge requires that the State prove beyond a reasonable doubt that the substance found in defendant\u2019s jacket was in fact cocaine. See N.C. Gen. Stat. \u00a7 90-95(a)(l) (2009). The only other evidence presented at trial identifying the substance as cocaine was the testimony of Officer Tucker. At trial, Officer Tucker testified that he checked the pocket of defendant\u2019s jacket and found \u201ctwenty two individual rocks of crack cocaine.\u201d\nVisual identification, even by a trained police officer such as Officer Tucker with four years of experience, is not enough to identify beyond a reasonable doubt a substance chemically defined by our legislature. State v. Ward, 364 N.C. 133, 142-43, 694 S.E.2d 738, 743-44 (2010); State v. Williams, 10-58-1 (N.C. App. Dec. 7, 2010) (holding that lay witness testimony, regardless of credentials and experience, is insufficient to prove the identity of a controlled substance); State v. Nabors, - N.C. App. -, -, 700 S.E.2d 153, 158 (2010) (holding that lay opinion based on physical appearance is not enough to identify crack-cocaine); State v. Meadows, \u2014 N.C. App. \u2014, \u2014, 687 S.E.2d 305, 309 (holding that controlled substances defined by their chemical composition can only be identified through chemical analysis and not through visual inspection), disc. review denied, 364 N.C. 245, 669 S.E.2d 640 (2010).\nOfficer Tucker did not conduct any chemical analysis on the substance retrieved from defendant\u2019s pocket. His testimony that the substance was crack cocaine was based solely on visual observation, and was not sufficient to meet the State\u2019s burden of proving the substance was cocaine. Therefore, the improper admission of and testimony about the Charlesworth report was not harmless. Defendant is entitled to a new trial.\nDefendant also contends the trial court erred in denying his motion to dismiss. On a motion to dismiss, the question for the trial court is whether there is substantial evidence of each element of the offense charged and that defendant was the person who committed the offense. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). \u201cSubstantial evidence is \u2018such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u2019 \u201d State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982) (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). Defendant argues that the State did not meet its burden to present substantial evidence of all the elements of possession with intent to sell or deliver, because the admission of and testimony about the Charlesworth report was admitted in error, and Officer Tucker\u2019s testimony standing alone was not sufficient to prove the chemical makeup of the substance.\nWhen ruling on a motion to dismiss, the trial court is to consider \u201call of the evidence actually admitted, whether competent or incompetent.\u201d State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991). \u201c[T]he fact that some of the evidence was erroneously admitted by the trial court is not a sufficient basis for granting a motion to dismiss.\u201d State v. Jones, 342 N.C. 523, 540, 467 S.E.2d 12, 23 (1996); see also State v. Morton, 166 N.C. App. 477, 482, 601 S.E.2d 873, 876 (2004) (holding that erroneously admitted evidence may be considered when ruling on a motion to dismiss). The Charlesworth report, even though erroneously admitted, did provide chemical evidence that the substance found in defendant\u2019s jacket was cocaine, thus providing substantial evidence, for the purpose of defendant\u2019s motion, that the substance possessed was indeed cocaine.\nDefendant also claims the motion to dismiss should have been granted because the State produced no evidence that he intended to sell or deliver the cocaine. However, Officer Tucker testified that the packaging of the substance was indicative that it was being held for sale and, therefore, there was circumstantial evidence of an intent to sell. See State v. Carr, 122 N.C. App. 369, 373, 470 S.E.2d 70, 73 (1996) (holding that the manner a controlled substance is packaged may be considered in establishing intent to sell and deliver).\nBecause we have determined that defendant is entitled to a new trial for the reasons stated above, we do not reach his remaining arguments by which he contends his trial counsel rendered ineffective assistance of counsel.\nNew Trial.\nJudges STEPHENS and STROUD concur.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Roy Cooper, Attorney General, by Joseph E. Elder, Assistant Attorney General, for the State.", "Staples JIughes, Appellate Defender, by Charlesena Elliott Walker, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHRIS ALAN JONES\nNo. COA10-475\n(Filed 21 December 2010)\n1. Constitutional Law\u2014 right to confrontation \u2014 chemical analysis report \u2014 non-testifying analyst \u2014 lay opinion testimony \u2014 erroneously admitted\nThe trial court committed plain error in a possession of cocaine with intent to sell or deliver case by admitting into evidence a chemical analysis report prepared by an analyst who did not testify at trial and a police officer\u2019s testimony about the report. The trial court also committed plain error by admitting into evidence the police officer\u2019s testimony that the substance he found in defendant\u2019s jacket was cocaine.\n2. Drugs\u2014 possession of cocaine with intent to sell or deliver \u2014 erroneously admitted report \u2014 sufficient evidence\nThe trial court did not err in denying defendant\u2019s motion to dismiss the charge of possession of cocaine with intent to sell or deliver. The trial court must consider all evidence actually admitted when ruling on a motion to dismiss, even though the chemical analysis report which provided chemical evidence that the substance found in defendant\u2019s jacket was cocaine was erroneously admitted.\nAppeal by defendant from judgments entered 7 January 2010 by Judge Eric L. Levinson in Mecklenburg County Superior Court. Heard in the Court of Appeals 26 October 2010.\nRoy Cooper, Attorney General, by Joseph E. Elder, Assistant Attorney General, for the State.\nStaples JIughes, Appellate Defender, by Charlesena Elliott Walker, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0734-01", "first_page_order": 758, "last_page_order": 762 }