{ "id": 4181441, "name": "STATE OF NORTH CAROLINA v. DENNIS TYRONE GARNETT, SR.", "name_abbreviation": "State v. Garnett", "decision_date": "2011-02-15", "docket_number": "No. COA10-111", "first_page": "537", "last_page": "550", "citations": [ { "type": "official", "cite": "209 N.C. App. 537" } ], "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": "137 N.C. App. 37", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11091796 ], "opinion_index": -1, "case_paths": [ "/nc-app/137/0037-01" ] }, { "cite": "651 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639544, 12639545 ], "weight": 2, "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/651/0225-01", "/se2d/651/0225-02" ] }, { "cite": "641 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637844 ], "year": 2007, "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/se2d/641/0357-01" ] }, { "cite": "648 S.E.2d 846", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639136, 12639137, 12639138 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/648/0846-01", "/se2d/648/0846-02", "/se2d/648/0846-03" ] }, { "cite": "640 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637767 ], "pin_cites": [ { "page": "804" } ], "opinion_index": 0, "case_paths": [ "/se2d/640/0797-01" ] }, { "cite": "233 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "920", "parenthetical": "\"Where an indictment [for first degree rape] sets forth conjunctively two means by which the crime charged may have been committed, there is no fatal variance between indictment and proof when the state offers evidence supporting only one of the means charged.\"" } ], "opinion_index": 0 }, { "cite": "292 N.C. 270", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569542 ], "year": 1977, "pin_cites": [ { "page": "293", "parenthetical": "\"Where an indictment [for first degree rape] sets forth conjunctively two means by which the crime charged may have been committed, there is no fatal variance between indictment and proof when the state offers evidence supporting only one of the means charged.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0270-01" ] }, { "cite": "384 S.E.2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "8", "parenthetical": "\"[T]hat the State alleged two factual underpinnings for, or factual theories of [alleged failure to discharge official duties], conviction did not require it to prove both.\"" } ], "opinion_index": 0 }, { "cite": "325 N.C. 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2490779 ], "year": 1989, "pin_cites": [ { "page": "423", "parenthetical": "\"[T]hat the State alleged two factual underpinnings for, or factual theories of [alleged failure to discharge official duties], conviction did not require it to prove both.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0418-01" ] }, { "cite": "518 S.E.2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "35", "parenthetical": "holding plain error resulted where indictment alleged kidnapping by \"removing\" victim, but jury instruction provided for conviction based on \"confining, restraining, or removing\"" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 445", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11145290 ], "year": 1999, "pin_cites": [ { "page": "451", "parenthetical": "holding plain error resulted where indictment alleged kidnapping by \"removing\" victim, but jury instruction provided for conviction based on \"confining, restraining, or removing\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0445-01" ] }, { "cite": "346 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "holding plain error resulted where indictment charged the defendant with \"removing\" victim, but jury instruction permitted conviction for \"restraining\" the victim" } ], "opinion_index": 0 }, { "cite": "317 N.C. 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778082 ], "year": 1986, "pin_cites": [ { "parenthetical": "holding plain error resulted where indictment charged the defendant with \"removing\" victim, but jury instruction permitted conviction for \"restraining\" the victim" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0532-01" ] }, { "cite": "361 N.C. 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3736746, 3737322, 3737229, 3736334, 3746096, 3735570, 3739863, 3740729, 3746170 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0571-02", "/nc/361/0571-08", "/nc/361/0571-01", "/nc/361/0571-03", "/nc/361/0571-09", "/nc/361/0571-05", "/nc/361/0571-06", "/nc/361/0571-04", "/nc/361/0571-07" ] }, { "cite": "182 N.C. App. 34", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8168085 ], "year": 2007, "pin_cites": [ { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0034-01" ] }, { "cite": "306 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "454" }, { "page": "453" }, { "page": "454" } ], "opinion_index": 0 }, { "cite": "309 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762487 ], "year": 1983, "pin_cites": [ { "page": "218-19" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0214-01" ] }, { "cite": "577 S.E.2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "668" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 127", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9185337 ], "year": 2003, "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0127-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "545 S.E.2d 723", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685067, 684993, 685011, 685108 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0680-04", "/nc/352/0680-03", "/nc/352/0680-01", "/nc/352/0680-02" ] }, { "cite": "527 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 2000, "pin_cites": [ { "page": "67" }, { "page": "69" }, { "page": "67-68", "parenthetical": "emphasis added" }, { "page": "68" }, { "page": "68" }, { "page": "69" }, { "page": "69" } ], "opinion_index": 0 }, { "cite": "361 N.C. 430", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3745024, 3740134, 3741386, 3744268, 3739704, 3744249, 3735802 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0430-04", "/nc/361/0430-05", "/nc/361/0430-03", "/nc/361/0430-07", "/nc/361/0430-06", "/nc/361/0430-02", "/nc/361/0430-01" ] }, { "cite": "181 N.C. App. 655", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375785 ], "pin_cites": [ { "page": "664-65" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0655-01" ] }, { "cite": "696 S.E.2d 904", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "911", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "373 S.E.2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "686" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 50", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526338 ], "year": 1988, "pin_cites": [ { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0050-01" ] }, { "cite": "604 S.E.2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "901", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "359 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3803286 ], "year": 2004, "pin_cites": [ { "page": "156", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0131-01" ] }, { "cite": "698 S.E.2d 73", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "693 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "189" } ], "opinion_index": 0 }, { "cite": "690 S.E.2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "291", "parenthetical": "holding no Confrontation Clause violation where testifying expert did not perform any forensic analysis on the evidence, but conducted a \"peer review\" of the testing analyst's work sufficient to establish her own expert opinion" }, { "page": "291" } ], "opinion_index": 0 }, { "cite": "692 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "363 N.C. 809", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "684 S.E.2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "511-12" } ], "opinion_index": 0 }, { "cite": "683 S.E.2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "788", "parenthetical": "holding testimony of crime lab supervisor was inadmissible under the Confrontation Clause as his opinion was based \"solely\" upon the laboratory report produced by a non-testifying analyst" } ], "opinion_index": 0 }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "year": 2005, "pin_cites": [ { "page": "53-54" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "681 S.E.2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2009, "pin_cites": [ { "page": "305" }, { "page": "305" }, { "page": "305" } ], "opinion_index": 0 }, { "cite": "363 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151754 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "452" }, { "page": "452" }, { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0438-01" ] }, { "cite": "129 S. Ct. 2527", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 3657952 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "2532" }, { "page": "2532", "parenthetical": "\"The 'certificates' are functionally identical to live, in-court testimony, doing 'precisely what a witness does on direct examination.' \"" } ], "opinion_index": 0, "case_paths": [ "/us/557/0305-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-7.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-113.22", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-415.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-108", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(A)(7)" }, { "page": "(A)(7)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(A)(l)" }, { "page": "(A)(l)" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 37", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11091796 ], "weight": 2, "pin_cites": [ { "page": "46" }, { "page": "47" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0037-01" ] } ], "analysis": { "cardinality": 1142, "char_count": 32686, "ocr_confidence": 0.743, "pagerank": { "raw": 4.231167872616971e-08, "percentile": 0.26868361823411324 }, "sha256": "d32e9d3361e4552b4b1ac2a5975e02de5990ae11e97fad9ae12a555f97c627c3", "simhash": "1:8bab552a775f1478", "word_count": 5163 }, "last_updated": "2023-07-14T17:06:47.704823+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, Robert C., and LEWIS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DENNIS TYRONE GARNETT, SR." ], "opinions": [ { "text": "HUNTER, JR., Robert N., Judge.\nBy writ of certiorari, Dennis Tyrone Garnett, Sr., (\u201cDefendant\u201d) appeals from an order imposing 168 to 211 months\u2019 imprisonment entered pursuant to his jury conviction for multiple drug related charges and his subsequent guilty plea for additional drug related and habitual felon charges. Defendant contends the trial court: committed plain error by permitting the State\u2019s forensic chemist to testify as to the identity and weight of the marijuana analyzed by a non-testifying chemist in violation of Defendant\u2019s constitutional rights to confront the witnesses testifying against him; erred by charging the jury with an instruction that varied from the language of the indictment; and abused its discretion by declining to find mitigating factors despite uncontested evidence of such factors. After a careful review of the record, we find no prejudicial error.\nI. Factual and Procedural Background\nOn 19 June 2008, officers of the Asheville Police Department obtained and executed a warrant to search Defendant, the residence he shared with his girlfriend, and a vehicle that Defendant had been observed driving. The police obtained the search warrant as a result of their investigation of Defendant\u2019s suspected drug related activities. At trial the State\u2019s evidence tended to establish the following facts.\nWhen officers arrived outside of Defendant\u2019s residence they found Defendant and several other individuals standing around the vehicle that was to be searched. The police observed Defendant walking toward the rear tire of the car then back away from the tire as the officers exited their patrol car. The officers immediately handcuffed and searched Defendant and read to Defendant his Miranda rights; Defendant acknowledged that he understood these rights. On Defendant\u2019s person, the police found approximately four thousand dollars ($4,000.00) in cash and two cell phones.\nThe police officers executed a search of the vehicle\u2019s exterior with a drug-sniffing K-9 during which the K-9 alerted to the right rear tire well. There, the officers found a black bag containing several smaller bags of what appeared to be marijuana and cash. Upon searching the interior of the vehicle, the officers found a purse containing a .22 caliber pistol and bullets located in the compartment for the carjack. In the compartment between the front seats, the police found two additional bags, each containing hundreds of smaller, empty, black bags similar to the bags found in the rear tire well.\nUpon searching Defendant\u2019s residence, the officers found: nine \u201cdime bags\u201d of what appeared to be marijuana in a bowl on top of the television in the living room; a Nike bag in the master bedroom closet, to which the K-9 had alerted, that contained two gallon-sized bags containing what appeared to.be marijuana; letters addressed to Defendant with the address of the residence being searched; a police scanner; and a make-up case also containing a small amount of what appeared to be marijuana. The officers estimated the total weight of the alleged marijuana seized to be approximately one hundred and fifty-one (151) grams.\nTwo police officers testified that during the search of the vehicle and Defendant\u2019s apartment, after Defendant was read his Miranda rights, Defendant made several incriminating statements. Officer Tammy Bryson testified that when Defendant was asked about the alleged drugs found in the car Defendant stated he smoked the marijuana, but did not sell it. Later, when escorted inside his residence and in the presence of his girlfriend, Defendant told the police that all of the alleged marijuana found was his and he was selling it; that his girlfriend did not sell it, she only smoked the marijuana. Additionally, two officers testified that Defendant told them he could provide the names of people from whom he received his supply of marijuana if his cooperation would mitigate the charges against him.\nDefendant was indicted by a Buncombe County Grand Jury on 7 July 2008 for possession with intent to sell or deliver a Schedule VI controlled substance, marijuana, pursuant to N.C. Gen. Stat. \u00a7 90-95(A)(l); knowingly and intentionally keeping and maintaining a dwelling house for keeping and selling a Schedule VI controlled substance, marijuana, pursuant to N.C. Gen. Stat. \u00a7 90-108(A)(7); possession of a firearm by a felon, pursuant to N.C. Gen. Stat. \u00a7 14-415.1; and possession of drug paraphernalia, pursuant to N.C. Gen. Stat. \u00a7 90-113.22. The date of these offenses was 19 June 2008. Additionally, Defendant was indicted for being a habitual felon based on three prior felony convictions, pursuant to N.C. Gen. Stat. \u00a7 14-7.1. The trial court decided, however, to hold the habitual felon charge for consideration until after the jury returned verdicts on the other four charges.\nDefendant was tried before Judge Zoro J. Guice, Jr. during the 13 October 2008 Session of the Buncombe County Criminal Superior Court. Before the jury was empaneled, Defendant made a Motion to Suppress seeking to exclude from evidence the statements he made to police on the day of the search; Defendant alleged that he was not properly advised of his Miranda rights at the time he made the statements. After a hearing on the motion, the trial court found Defendant had been properly advised of his Miranda rights, that he acknowledged he understood them, that the statements he made to the police were made voluntarily and, thus, admissible into evidence.\nOn 16 October 2008, the jury returned guilty verdicts for each of the indictments; the habitual felon indictment was not before the jury. Defendant then pled guilty to additional charges: one charge of possession of drug paraphernalia, pursuant to N.C. Gen. Stat. \u00a7 90-113.22; one charge of knowingly and intentionally keeping and maintaining a dwelling house for keeping and selling a Schedule-VI controlled substance, marijuana, pursuant to N.C. Gen. Stat. \u00a7 90-108(A)(7); and one charge of possession with intent to sell or deliver a Schedule VI controlled substance, marijuana, pursuant to N.C. Gen. Stat. \u00a7 90-95(A)(l). The date of these offenses was 12 September 2008. Defendant also pled guilty to two charges of being a habitual felon, pursuant to N.C. Gen. Stat. \u00a7 14-7.1. In exchange, Defendant\u2019s sentences for the charges for which he was found guilty would run concurrently with the sentences for the charges to which he pled guilty. Defendant was sentenced on 16 October 2008 in the presumptive range of authorized sentences to an active term of 168 to 211 months\u2019 imprisonment. After pronouncement of his sentence, Defendant informed the court he would not appeal. On 21 April 2009, however, Defendant filed a Petition for Writ of Certiorari, which this Court granted pursuant to section 7A-32 of our General Statutes and Rule 21 of the North Carolina Rules of Appellate Procedure. N.C. Gen. Stat. \u00a7 7A-32 (2009); N.C. R. App. P. 21 (2011).\nII. Analysis\nA. Admissibility of Expert\u2019s Testimony\nOn appeal, Defendant first contends that the trial court erred in permitting the State\u2019s expert witness to testify as to the identity and weight of the \u201cleafy green plant substance\u201d seized where the expert\u2019s testimony was based upon the analysis performed by a non-testifying forensic analyst. Defendant argues this testimony was admitted in violation of his constitutional right to confront the witnesses testifying against him pursuant to the United States Supreme Court\u2019s decision in Melendez-Diaz v. Massachusetts, - U.S. -, -, 129 S. Ct. 2527, 2532 (2009), and the North Carolina Supreme Court\u2019s holding in State v. Locklear, 363 N.C. 438, 452, 681 S.E.2d 293, 305 (2009). While this testimony was admitted in violation of Defendant\u2019s rights under the Confrontation Clause, we nevertheless conclude this error was not prejudicial in light of the additional evidence of Defendant\u2019s guilt.\nDefendant concedes that he made no objection at trial to the admission of the State\u2019s expert\u2019s testimony and that he thereby waived his right to object on appeal under our Rules of Appellate Procedure. N.C. R. App. P. 10(a)(1) (2011). Defendant, however, requests this Court to examine the issue for plain error. N.C. R. App. P. 10(a)(4) (2011). \u201c \u2018Plain error\u2019 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.\u201d State v. Jones, - N.C. App. -, -, - S.E.2d -, -, No. 10-475, slip op. at 3 (Dec. 21, 2010) (citation omitted), temporary stay allowed, - N.C. -, -S.E.2d -, 2011 N.C. LEXIS 6 (Jan. 10, 2011).\nThe Confrontation Clause of the Sixth Amendment prohibits the introduction of testimonial evidence unless the declarant is not available for cross-examination and the defendant has had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 53-54 (2005). While the Supreme Court has not provided a precise definition of testimonial evidence, the Court has established that laboratory reports, or \u201ccertificates of analysis,\u201d showing the results of forensic analyses of evidence seized by the police are testimonial in nature and are subject to the Confrontation Clause. Melendez-Diaz, - U.S. at -, 129 S. Ct. at 2532 (\u201cThe \u2018certificates\u2019 are functionally identical to live, in-court testimony, doing \u2018precisely what a witness does on direct examination.\u2019 \u201d) (internal citation omitted).\nIn State v. Locklear, the North Carolina Supreme Court applied the holding of Melendez-Diaz to conclude that the Confrontation Clause prohibits the introduction of the live testimony by an expert witness whose expert opinion is based upon \u201cthe results of non-testifying analysts. 363 N.C. at 452, 681 S.E.2d at 305; State v. Galindo, - N.C. App. -, -, 683 S.E.2d 785, 788 (2009) (holding testimony of crime lab supervisor was inadmissible under the Confrontation Clause as his opinion was based \u201csolely\u201d upon the laboratory report produced by a non-testifying analyst).\nSubsequent to Locklear and Galindo, this Court recognized an exception which would permit the admittance of expert testimony when the expert testified \u201cnot 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 State v. Mobley, - N.C. App. -, -, 684 S.E.2d 508, 511-12 (2009), disc. review denied, 363 N.C. 809, 692 S.E.2d 393 (2010); State v. Hough, N.C. App. -, -, 690 S.E.2d 285, 291 (2010) (holding no Confrontation Clause violation where testifying expert did not perform any forensic analysis on the evidence, but conducted a \u201cpeer review\u201d of the testing analyst\u2019s work sufficient to establish her own expert opinion). Significantly, however, in Hough this Court recognized that not \u201cevery \u2018peer review\u2019 will suffice to establish that the testifying expert is testifying to his or her expert opinion.\u201dN.C. App. at -, 690 S.E.2d at 291. This distinction has been applied by this Court in the recent decisions of State v. Brewington, - N.C. App. -, 693 S.E.2d 182, temporary stay allowed, 364 N.C. 243, 698 S.E.2d 73 (2010), and State v. Williams, - N.C. App. -, - S.E.2d \u2014, No. 10-58 (Dec. 7, 2010), temporary stay allowed, \u2014 N.C. -, - S.E.2d - (Dec. 20, 2010).\nIn Williams, this Court held as inadmissible the testimony of the State\u2019s expert witness where the expert witness had conducted a peer review of the testing analyst\u2019s examination of the seized evidence. Williams, - N.C. App. at -, - S.E.2d at-, slip op. at 9. We concluded the State\u2019s expert witness \u201ccould not have provided her. own admissible analysis of the relevant underlying substance\u201d where she did not conduct any tests on the seized evidence and was not present when the testing analyst performed his analysis. Id. The rejection of the peer review testimony in Williams was warranted, we noted, in light of the \u201cimportance of cross-examination as a tool to expose, among other things, the care (or lack thereof) with which a chemist conducted tests on a substance\u201d which could not be assessed by a mere summary of the underlying analyses provided by the State\u2019s expert witness. Id.\nIn the present case, we conclude the testimony by the State\u2019s expert witness as to the results of the analysis of the evidence seized from Defendant is indistinguishable from the testimony rejected in Williams. At trial the State called Special Agent Jay Pintacuda, a senior forensic chemist for the State Bureau of Investigation (\u201cSBI\u201d), to testify as to the identity and weight of the \u201cleafy green plant substance\u201d that was seized during the search of Defendant\u2019s apartment and the vehicle. Pintacuda was certified by the trial court, without objection, as an expert witness in forensic chemistry. It is evident from the record that Pintacuda did not perform the SBI\u2019s analysis of the seized evidence. Rather, a testing analyst, Robert Briner, conducted the SBI\u2019s forensic analysis and completed a laboratory report averring to the weight and identity of the substance seized from Defendant. When Pintacuda was asked to describe his role with the SBI, he stated:\nAs a senior forensic chemist my job includes the review of other work product of other chemists. I examine their notes, lab reports for technical and administrative review and to make sure that the work product, lab reports going out, meet quality control, . quality assurance guidelines and policies and procedures of the State Bureau of Investigation.\n(Emphasis added.) When asked if he had reviewed Briner\u2019s report and conclusions regarding the evidence at issue in this case, Pintacuda responded, \u201cI have documentation here and I have had occasion to examine it to review the findings and work product and determine if it meets the quality assurance guidelines of the SBI laboratory.\u201d (Emphasis added.)\nThe State then directed Pintacuda\u2019s attention to a bag of \u201cplant material\u201d confiscated in Defendant\u2019s apartment and asked Pintacuda:\nQ: [I]s there anything on 5A [a bag of the seized plant material] to show that Mr. Briner examined that item and performed the analysis that you\u2019ve reviewed and that he came to some conclusion of what that substance was?\nA: Yes.\nQ: How do you know that?\nA: The writing on the outside surface is the SBI crime laboratory number, the initials, the date and the exhibit number.\nRobert Briner had occasion to examine it and identified it as being marijuana, and he recorded the weight in the lab report.\nHe identified this plant material as being marijuana . ... He weighed the material and recorded the weight....\n(Emphasis added.) This colloquy is representative of Pintacuda\u2019s testimony in which he consistently refers to the conclusions drawn by the testing analyst not conclusions from his own analysis. We find significant that the State\u2019s questioning of their forensic expert revealed mistakes made by the testing analyst during his analysis of the evidence. When the State asked Pintacuda to match the State\u2019s exhibits, the seized evidence, to the SBI\u2019s results on the laboratory report Pintacuda was unable to do so with certainty due to an apparent mix-up by Briner. The State attempted to explain the confusion and asked of Pintacuda: \u201cSo [Briner] got it labeled wrong on his report?\u201d; \u201cSo he just mislabeled that?\u201d; \u201cHe made a mistake?\u201d; and \u201c. . . so that would be a typographical error \u2014 \u201d. Pintacuda acknowledged mistakes were made by the testing analyst and attempted to explain the discrepancies in the lab report as just \u201ca labeling issue,\u201d surmising, \u201cThey co-mingled everything together in similar bags from what I can gather.\u201d (Emphasis added.)\nAs we recognized in Williams, we conclude this testimony demonstrates the necessity for cross-examination of the individuals who perform the forensic analysis of such evidence \u201cso that their honesty, competence, and the care with which they conducted the tests in question could be exposed to testing in the crucible of cross-examination.\u201d Williams, - N.C. App. at \u2014, \u2014 S.E.2d at \u2014, slip op. at 6 (quoting Brewington, - N.C. App. at -, 693 S.E.2d at 189.) It is apparent from the record that Special Agent Pintacuda\u2019s testimony regarding the SBI\u2019s laboratory report does not qualify as an independent expert opinion as seen in Mobley or Hough. Rather it was a summary of the report produced by Briner, the non-testifying analyst. As such, and without the State establishing that Briner was unavailable to testify and that Defendant had the opportunity to cross-examine him on a prior occasion, the admission of Special Agent Pintacuda\u2019s testimony regarding the SBI\u2019s laboratory report violated Defendant\u2019s Confrontation Clause rights. See Locklear, 363 N.C. at 452, 681 S.E.2d at 305.\nWe conclude, however, that in light of the additional evidence presented at trial and our plain error review, Pintacuda\u2019s testimony as to the SBI laboratory report did not prejudice Defendant such that the jury would have reached a different conclusion had the testimony not been admitted. See Jones, - N.C. App. at -, - S.E.2d at-, slip op. at 3 (citation omitted). \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.\u201d N.C. Gen. Stat. \u00a7 15A-1443(b) (2009). The State must prove the trial court\u2019s error was harmless. Id. \u201c[T]he presence of overwhelming evidence of guilt may render error of constitutional dimension harmless beyond a reasonable doubt.\u201d State v. Morgan, 359 N.C. 131, 156, 604 S.E.2d 886, 901 (2004) (citation omitted).\nThe State introduced overwhelming evidence to support Defendant\u2019s convictions for possession of marijuana with intent to sell or deliver and knowingly and intentionally maintaining a dwelling for keeping or selling marijuana: Defendant\u2019s physical proximity to the car wheel well where police found several bags of cash and what appeared to be marijuana, and to which the police K-9 had alerted; hundreds of similar bags located inside the car; observations of Defendant\u2019s use of the car and a receipt in Defendant\u2019s name for repairs made to the car. Inside Defendant\u2019s home the police K-9 altered the officers to a large bag of what appeared to be marijuana in the bedroom closet, \u201cdime bags\u201d and a make-up bag containing a similar substance in other parts of the residence.\nFurthermore, Special Agent Pintacuda identified the evidence seized from Defendant as marijuana. We note, this identification was an in-court, visual identification independent from Pintacuda\u2019s testimony regarding the SBI\u2019s laboratory report. While Pintacuda was tendered as an expert witness in forensic chemistry, this Court has previously held that a police officer experienced in the identification of marijuana may testify to his visual identification of evidence as marijuana:\nAdmittedly, it would have been better for the State to have introduced admissible evidence of chemical analysis of the substance, especially in light of the fact that testimony indicated the State Bureau of Investigation had conducted such analysis. . . . [T]he absence of such direct evidence does not, as the appellant suggests, prove fatal. Though direct evidence may be entitled to much greater weight with the jury, the absence of such evidence does not render the opinion testimony insufficient to show the substance was marijuana.\nState v. Fletcher, 92 N.C. App. 50, 57, 373 S.E.2d 681, 686 (1988). Thus, Special Agent Pintacuda\u2019s testimony identifying the evidence as marijuana based on his in-court visual identification was properly before the jury.\nMost significantly, during the search of the car and residence, and at trial, Defendant admitted that the evidence found was marijuana and that he was selling it. This evidence establishes Defendant\u2019s guilt beyond a reasonable doubt. Therefore, Defendant was not prejudiced by the admission of Special Agent Pintacuda\u2019s testimony regarding the SBI\u2019s chemical analysis and Defendant\u2019s argument to the contrary is dismissed.\nB. Jury Instruction\nDefendant\u2019s second argument on appeal is that the trial court committed reversible error when it charged the jury with an instruction that varied from the language of the indictment. The pertinent indictment charged Defendant with maintaining a dwelling house \u201cfor keeping and selling a controlled substance.\u201d (Emphasis added.) The trial court, over Defendant\u2019s objection, instructed the jury that to find Defendant guilty of the charge the State must prove that Defendant \u201cmaintained a dwelling house used for the purpose of unlawfully keeping or selling marijuana.\u201d (Emphasis added.) Defendant argues that this discrepancy between the indictment and the jury instruction was prejudicial error as he relied upon the language of the indictment to construct his defense and it permitted the jury to convict him on an abstract theory not supported by the indictment. We must disagree.\n\u201cOur Court reviews a trial court\u2019s decisions regarding jury instructions de novo. \u2018The prime purpose of a court\u2019s charge to the jury is the clarification of issues, the elimination of extraneous matters, and a declaration and an application of the law arising on the evidence.\u2019 \u201d State v. Smith, \u2014 N.C. App. \u2014, \u2014, 696 S.E.2d 904, 911 (2010) (citation omitted).\nIn support of his argument, Defendant attempts to distinguish State v. Anderson in which this Court rejected a similar claim. 181 N.C. App. 655, 664-65, 640 S.E.2d 797, 804 (holding it was not plain error for the trial court to instruct the jury that the defendant could be convicted of kidnapping based on the theories of confining, restraining, or removing the victim where the indictment charged the defendant with \u201cconfining and restraining and removing\u201d the victim) (emphasis added), cert. denied, 361 N.C. 430, 648 S.E.2d 846 (2007). Because the Anderson Court\u2019s brief opinion relied upon the analysis of the same issue in State v. Lancaster, the reasoning outlined in Lancaster is instructive for the present case. 137 N.C. App. 37, 46, 527 S.E.2d 61, 67, disc. review denied in part and remanded in part, 352 N.C. 680, 545 S.E.2d 723 (2000).\n\u201cThe purpose of the indictment is to put the defendant on notice of the offense with which he is charged and to allow him to prepare a defense to that charge.\u201d Id. at 48, 527 S.E.2d at 69. In Lancaster, the State utilized the conjunctive \u201cand\u201d in the indictment to charge the defendant with three theories of kidnapping \u2014 \u201cconfining, restraining and removing\u201d the victim \u2014 while the jury instruction permitted a conviction if the jury found defendant confined, restrained or removed his victim. Id. at 46, 527 S.E.2d at 67-68 (emphasis added). The Lancaster Court distinguished prior decisions wherein one theory of the crime was alleged in the indictment while a different or other theories were put before the jury. Id. at 47, 527 S.E.2d at 68. Such additional theories in the jury instruction, the Court concluded, were abstract theories not supported by the indictment and it was prejudicial error for the jury to consider them. Id. The three theories in the Lancaster indictment, however, were the same three theories presented to the jury. Id. Thus, the defendant\u2019s conviction was supported by the indictment and there was no error. Lancaster, 137 N.C. App. at 47, 527 S.E.2d at 68.\nThe defendant in Lancaster also argued that by utilizing \u201cand\u201d to connect the three kidnapping theories in his indictment the State was required to prove the defendant used all three theories in commission of the crime. Id. at 48, 527 S.E.2d at 69. The Lancaster Court rejected this argument as well, explaining that because an indictment for kidnapping need only allege one statutory theory for the commission of the crime, the fact that the indictment alleged additional theories was not error. Id. Rather, the indictment served to put the defendant on notice that the State intended to prove the defendant was guilty via one of the three theories. Id. at 48, 527 S.E.2d at 69. Therefore, the use of the disjunctive \u201cor\u201d in the jury instruction properly placed before the jury the three kidnapping theories alleged in the indictment and did not require the State to prove all three theories to support a conviction. Id.\nWe cannot discern any material distinction between Lancaster and the present case. Defendant\u2019s indictment charged that he maintained a dwelling house \u201cfor keeping and selling a controlled substance.\u201d (Emphasis added.) Defendant contends he relied upon the language of the indictment to prepare his defense in which he conceded to maintaining his dwelling to possess marijuana, but he denied he did so for the purpose of selling the marijuana. The jury instruction, however, permitted a conviction if the State had proven Defendant maintained his dwelling to either keep or sell marijuana. Under Lancaster, the trial court did not err when instructing the jury. We are bound by prior opinions of this Court. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (\u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d). Accordingly, we must conclude that Lancaster is controlling and we dismiss Defendant\u2019s claim.\nC. Trial Court\u2019s Refusal to Find Mitigating Factors\nDefendant\u2019s third and final argument on appeal is that the trial court abused its discretion in refusing Defendant\u2019s request for a mitigated sentence despite uncontroverted evidence of mitigating circumstances. We disagree.\nSection 15A-1340.16 of the North Carolina General Statutes states that a trial court \u201cshall consider evidence of aggravating or mitigating factors,\u201d however, \u201cthe decision to depart from the presumptive range is in the discretion of the court.\u201d N.C. Gen. Stat. \u00a7 15A-1340.16 (2009). \u201cA trial court\u2019s weighing of mitigating and aggravating factors will not be disturbed on appeal absent a showing that there was an abuse of discretion.\u201d State v. Rogers, 157 N.C. App. 127, 129, 577 S.E.2d 666, 668 (2003).\nDuring the sentencing hearing, Defendant presented uncontradicted evidence of the following mitigating factors pursuant to section 15A-1340.16(e): Defendant was suffering from a physical condition that significantly reduced Defendant\u2019s culpability; Defendant voluntarily acknowledged wrongdoing early in the criminal process; Defendant accepted responsibility for his criminal conduct; Defendant supports his family; and Defendant has a support system in the community. N.C. Gen. Stat. \u00a7 15A-1340.16(e)(3), (11), (15), (17), and (18). The trial court, however, sentenced Defendant within the presumptive range of authorized sentences.\nDefendant\u2019s reliance on our case law in support of his claim is misplaced. Defendant cites to State v. Jones, 309 N.C. 214, 218-19, 306 S.E.2d 451, 454 (1983), as requiring the trial court to find a mitigating factor when evidence of such factor is \u201cuncontradicted, substantial, and there is no reason to doubt its credibility . . . .\u201d Jones, however, addressed a sentence imposed in the aggravated range, not the presumptive range as in the present case. Id. at 215, 306 S.E.2d at 453. Additionally, Jones was decided under the Fair Sentencing Act, N.C. Gen. Stat. \u00a7\u00a7 15A-1340.1 to -1340.7 (Id. at 219, 306 S.E.2d at 454), which was repealed effective 1 October 1994 and succeeded by the Structured Sentencing Act, N.C. Gen. Stat. \u00a7\u00a7 15A-1340.10 to -1340.33. 1993 N.C. Sess. Laws ch. 538, \u00a7 56; 1994 N.C. Sess. Laws ch. 24, \u00a7 14(a), (b). Under the Structured Sentencing Act, \u201c[t]he court shall make findings of the aggravating and mitigating factors present in the offense only if, in its discretion, it departs from the presumptive range of sentences ....\u201d N.C. Gen. Stat. \u00a7 15A-1340.16(c) (2009); State v. Dorton, 182 N.C. App. 34, 43, 641 S.E.2d 357, 363, disc. review denied, 361 N.C. 571, 651 S.E.2d 225 (2007). This is so even if the evidence of mitigating factors is uncontroverted. Id.\nIt is clear from the record that Defendant offered uncontroverted evidence of mitigating factors to the court. It is also clear that the trial court gave much consideration to this evidence during the sentencing hearing. That the trial court did not, however, find any mitigating factors and chose to sentence Defendant in the presumptive range was squarely in its discretion. We find no error and dismiss Defendant\u2019s claim.\nIII. Conclusion\nAfter a careful review of the record, we conclude that the admission of the State\u2019s forensic laboratory report, identifying the confiscated evidence as marijuana, without affording Defendant the opportunity to cross-examine the analyst who prepared the report violated Defendant\u2019s Sixth Amendment Confrontation Clause rights. In light of the additional evidence of Defendant\u2019s guilt, however, this error did not rise to the level of plain error. Additionally the trial court did not err by charging the jury with an instruction that deviated from the language of the indictment as it placed before the jury the criminal theories alleged in the indictment and thus properly supported Defendant\u2019s conviction. Nor did the trial court abuse its discretion by sentencing Defendant in the presumptive range after considering Defendant\u2019s evidence of mitigating factors. Accordingly, we conclude Defendant received a fair trial and we leave the trial court\u2019s order undisturbed.\nNo Error.\nJudges HUNTER, Robert C., and LEWIS concur.\n. See State v. Tucker, 317 N.C. 532, 346 S.E.2d 417 (1986) (holding plain error resulted where indictment charged the defendant with \u201cremoving\u201d victim, but jury instruction permitted conviction for \u201crestraining\u201d the victim); State v. Dominee, 134 N.C. App. 445, 451, 518 S.E.2d 32, 35 (1999) (holding plain error resulted where indictment alleged kidnapping by \u201cremoving\u201d victim, but jury instruction provided for conviction based on \u201cconfining, restraining, or removing\u201d).\n. See State v. Birdsong, 325 N.C. 418, 423, 384 S.E.2d 5, 8 (1989) (\u201c[T]hat the State alleged two factual underpinnings for, or factual theories of [alleged failure to discharge official duties], conviction did not require it to prove both.\u201d); State v. Gray, 292 N.C. 270, 293, 233 S.E.2d 905, 920 (1977) (\u201cWhere an indictment [for first degree rape] sets forth conjunctively two means by which the crime charged may have been committed, there is no fatal variance between indictment and proof when the state offers evidence supporting only one of the means charged.\u201d)", "type": "majority", "author": "HUNTER, JR., Robert N., Judge." } ], "attorneys": [ "Attorney General, Roy Cooper, by Kimberly W. Duffley, Assistant Attorney General, for the State.", "Paul M. Green for Defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DENNIS TYRONE GARNETT, SR.\nNo. COA10-111\n(Filed 15 February 2011)\n1. Constitutional Law\u2014 right to confrontation \u2014 expert testimony \u2014 analysis performed by non-testifying analyst \u2014 erroneous \u2014 no prejudicial error\nThe trial court erred in a drugs case by permitting the State\u2019s expert witness to testify to the identity and weight of the substance seized during a search of defendant\u2019s apartment and vehicle where the expert\u2019s testimony was based upon an analysis performed by a non-testifying forensic analyst. However, in light of the additional evidence presented at trial and the Court\u2019s plain error review, the erroneously admitted testimony did not prejudice defendant such that the jury would have reached a different conclusion had the testimony not been admitted.\n2. Drugs\u2014 jury instructions \u2014 controlled substances \u2014 variance between indictment and instruction \u2014 no prejudicial error\nThe trial court did not commit reversible error in a drugs case where the pertinent indictment charged defendant with maintaining a dwelling house \u201cfor keeping and selling a controlled substance\u201d but the court instructed the jury that to find defendant guilty of the charge, the State must prove that Defendant \u201cmaintained a dwelling house used for the purpose of unlawfully keeping or selling marijuana.\u201d State v. Lancaster, 137 N.C. App. 37, was controlling.\n3. Sentencing\u2014 mitigating factors \u2014 presumptive range \u2014 no abuse of discretion\nThe trial court did not abuse its discretion in refusing defendant\u2019s request for a mitigated sentence. Despite uncontroverted evidence of mitigating circumstances, it was within the trial court\u2019s discretion not to find any mitigating factors and to sentence defendant in the presumptive range.\nAppeal by Defendant from judgment entered 16 October 2008 by Judge Zoro J. Guice, Jr. in Buncombe County Superior Court. Heard in the Court of Appeals 31 August 2010.\nAttorney General, Roy Cooper, by Kimberly W. Duffley, Assistant Attorney General, for the State.\nPaul M. Green for Defendant-appellant." }, "file_name": "0537-01", "first_page_order": 547, "last_page_order": 560 }