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    "judges": [
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    "parties": [
      "STATE OF NORTH CAROLINA v. CHRISTOPHER JAMES WOODARD"
    ],
    "opinions": [
      {
        "text": "McCullough, Judge.\nChristopher James Woodard (\u201cdefendant\u201d) appeals from judgments based on his convictions for trafficking more than 28 grams of opium by possession, trafficking opium by transportation, felony breaking and entering, felony larceny, and felony possession of stolen goods. For reasons discussed herein, we find no error.\nI. Background\nIn July of 2009, defendant was indicted for the following charges: (1) trafficking more than 28 grams of opium by possession under N.C. Gen. Stat. \u00a7 90-95(h)(4); (2) trafficking more than 28 grams of opium by transportation under N.C. Gen. Stat. \u00a7 90-95(h)(4); (3) felonious breaking and entering under N.C. Gen. Stat. \u00a7 14-54(a); (4) felonious larceny under N.C. Gen. Stat. \u00a7 14-72(b)(2); and (5) felonious possession of stolen goods under N.C. Gen. Stat. \u00a7 14-71.1.\nAt trial, Detective Frank Catalano (\u201cDetective Catalano\u201d) of the Avery County Sheriff\u2019s Office testified that on 22 March 2009, he arrived at Crossnore Drugstore in Crossnore to investigate a break-in. A window at Crossnore Drugstore had been broken and he recovered bottles of pills that were lying in the parking lot. William Martin (\u201cMr. Martin\u201d), a pharmacist at Crossnore Drugstore, arrived at the scene and gave Detective Catalano a list of missing inventory. Approximately 4,000 to 5,000 pills had been stolen, with a total monetary loss of over $31,000.00.\nUpon investigation, Detective Catalano had arrest warrants issued for Christopher Hensley' (\u201cMr. Hensley\u201d), Patrick McDaniel (\u201cMr. McDaniel\u201d), and defendant for charges relating to the break-in at Crossnore Drugstore. Mr. Hensley took Detective Catalano and Detective Danny Phillips (\u201cDetective Phillips\u201d) to Burkemont Mountain, where he directed them to a large pile of prescription pill bottles buried three feet underground. Detective Catalano and Detective Phillips collected the pills and spent several hours counting them.\nMr. Martin testified that approximately 2,600 pills of hydrocodone, an opium derivative, were stolen from Crossnore Drugstore. He identified the pill bottles presented by the State as belonging to Crossnore Drugstore by looking at the account numbers on the bottles.\nMr. Hensley testified that on the night of the break-in, he drove defendant and Mr. McDaniel to Crossnore Drugstore at approximately 1:00 a.m. so that they could steal narcotics. Mr. Hensley remained in the car while defendant and Mr. McDaniel smashed in the front window and went inside. About one minute later, defendant and Mr. McDaniel returned to the car with two large black trash bags filled with pills. Mr. Hensley drove them to Mr. McDaniel\u2019s house where they split up the hydrocodone three ways and buried the remaining pills at Burkemont Mountain.\nMr. Hensley said that a few days before breaking into Crossnore Drugstore, he, defendant, and Mr. McDaniel broke into a pharmacy in Mitchell County around 1:00 a.m. with the intention of stealing narcotics, but were unable to do so. The trial court allowed his testimony over defendant\u2019s objection.\nAfter the State presented its evidence, defendant moved for dismissal of all charges on grounds of insufficient evidence, which the trial court denied. The trial court also denied defendant\u2019s renewed motion to dismiss at the close of evidence. On 28 April 2010, the jury found defendant guilty of all charges. Defendant appeals.\nII. Analysis\nA. Defendant\u2019s Constitutional Rights\nDefendant argues that the trial court violated his rights under the United States and North Carolina Constitutions and N.C. Gen. Stat. \u00a7 15-176 by requiring him to wear prison clothing during the jury selection and first day of trial. Defendant also contends that the trial court violated his due process rights by coaching the Assistant District Attorney during her direct examination of Mr. Martin. Because such issues were not properly preserved for appeal, we will not address them.\nDefendant did not object to either of these alleged errors during trial. Generally, a purported error, even one of constitutional magnitude, that is not raised and ruled upon in the trial court is waived and will not be considered on appeal. State v. Smith, 352 N.C. 531, 557-58, 532 S.E.2d 773, 790 (2000), cert. denied, 532 U.S. 949, 149 L. Ed. 2d 360 (2001). Rule 10(c)(4) of the North Carolina Rules of Appellate Procedure permits us to review an alleged error not properly preserved at trial if the defendant specifically and distinctly contends that it amounted to plain error. N.C. R. App. P. 10(c)(4) (2010). However, plain error review does not apply here as it is \u201c \u2018limited to errors in a trial court\u2019s jury instructions or a trial court\u2019s rulings on admissibility of evidence.\u2019 \u201d In re W.R., 363 N.C. 244, 247, 675 S.E.2d 342, 344 (2009) (quoting State v. Golphin, 352 N.C. 364, 460, 533 S.E.2d 168, 230-31 (2000)).\nB. Mr. Hensley\u2019s Testimony\nDefendant alleges that the trial court improperly allowed the State to admit evidence in violation of Rules 404(b) and 403 of the North Carolina Rules of Evidence. Mr. Hensley testified that a few days before they broke into Crossnore Drugstore, he, defendant, and Mr. McDaniel broke into a pharmacy in Mitchell County around 1:00 a.m. but were unable to obtain any narcotics. The trial court permitted the testimony over defendant\u2019s objection and concluded that\nthe circumstances surrounding the events occurring, allegedly occurring in Mitchell County sometime prior to the events . . . complained of [at Crossnore Pharmacy] were so similar in time and circumstances and other surrounding matters that the Court deems that the admissibility far outweighs any prejudice that they might have with regard to the defendant^]\nWe review a trial court\u2019s decision to admit evidence under Rules 404(b) for an abuse of discretion. State v. Summers, 177 N.C. App. 691, 697, 629 S.E.2d 902, 907, appeal dismissed and disc. review denied, 360 N.C. 653, 637 S.E.2d 192 (2006). \u201cA trial court may be reversed for abuse of discretion only upon a showing that its ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision.\u201d State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986).\nDefendant argues that Mr. Hensley\u2019s testimony was inadmissible character evidence that was unfairly prejudicial. Rule 404(b) of the North Carolina Rules of Evidence provides that\n[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (2009).\nUnder Rule 403, relevant evidence may be excluded \u201cif its probative value is substantially outweighed by the danger of unfair prejudice!)]\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2009). \u201c[T]he ultimate test for determining whether such evidence is admissible is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of [Rule 403].\u201d State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988).\nEvidence of other crimes is admissible \u201cas long as it is relevant to any fact or issue other than the defendant\u2019s propensity to commit the crime.\u201d State v. Aldridge, 139 N.C. App. 706, 714, 534 S.E.2d 629, 635, appeal dismissed and disc. review denied, 353 N.C. 269, 546 S.E.2d 114 (2000). Such evidence can be admitted \u201c \u2018if it tends to show the existence of a plan or design to commit the offense charged, or to accomplish a goal of which the offense charged is a part or toward which it is a step.\u2019 \u201d State v. Stager, 329 N.C. 278, 307, 406 S.E.2d 876, 892 (1991) (citation omitted). There must be a concurrence of common features. Id.\nIn the present case, the evidence that defendant broke into a pharmacy in Mitchell County is sufficiently similar to the break-in at Crossnore Drugstore. The incidents were only a few days apart and both involved defendant, Mr. Hensley, and Mr. McDaniel. Both events took place around 1:00 a.m. for the purpose of stealing narcotics. Furthermore, the trial court specifically instructed the jury to only consider the testimony for the limited purpose of \u201cmotive, plan, opportunity, intent, preparation, knowledge and/or identity with regard to the offenses charged here.\u201d The trial court did not abuse its discretion in admitting the testimony.\nC. Motion to Dismiss\nDefendant argues that the trial court erred by denying his motion to dismiss the charges against him for insufficient evidence. We find no error in the denying of the motion to dismiss the charges of felony breaking and entering, felony larceny, and trafficking opium by possession and trafficking opium by transportation. We will not address the denial of the motion to dismiss the felonious possession of stolen goods as the trial court arrested judgment on this charge and neither party now contends this to be error. State v. Pakulski, 326 N.C. 434, 439, 390 S.E.2d 129, 131 (1990) (\u201cA court is free to arrest judgment in a proper case on its own motion . . . .\u201d).\nWe review the denial of a motion to dismiss for insufficient evidence de novo. State v. Rouse, 198 N.C. App. 378, 381, 679 S.E.2d 520, 523 (2009). When ruling on a motion to dismiss, a trial court must determine whether there is substantial evidence of each essential element of the offenses charged. State v. Roddey, 110 N.C. App. 810, 812, 431 S.E.2d 245, 247 (1993). \u201cIf, viewed in the light most favorable to the State, the evidence is such that a jury could reasonably infer that defendant is guilty, the motion must be denied.\u201d State v. Williams, 154 N.C. App. 176, 178, 571 S.E.2d 619, 620-21 (2002).\nThe elements of felonious breaking and entering are (1) the breaking or entering (2) of any building (3) with the intent to commit a felony or larceny. N.C. Gen. Stat. \u00a7 14-54(a) (2009). The State provided evidence of each element through Mr. Hensley\u2019s testimony that defendant broke into Crossnore Drugstore with the intention of stealing narcotics.\nTo be convicted of larceny, \u201cthere must be substantial evidence showing that the defendant: (1) took the property of another; (2) carried it away; (3) without the owner\u2019s consent; and (4) with the intent to deprive the owner of his property permanently.\u201d State v. Sluka, 107 N.C. App. 200, 204, 419 S.E.2d200, 203 (1992). The crime of larceny is a felony if it is committed pursuant to a breaking or entering. N.C. Gen. Stat. \u00a7 14-72(b)(2) (2009). Sufficient evidence was presented at trial through Mr. Hensley\u2019s testimony to permit a jury to find that defendant took pills from the Crossnore Drugstore; carried the pills away; without consent; with the intent to deprive Crossnore Drugstore of the pills permanently; and that the pills were taken pursuant to a breaking or entering.\nDefendant also contends that the trial court erred by failing to dismiss the charges for trafficking opium, because the State did not provide a chemical analysis of the pills introduced into evidence. We disagree.\nTo be convicted of trafficking more than 28 grams of opium, the State is required to prove that defendant: (1) possessed or transported an opium derivative; and (2) the opium derivative weighed twenty-eight grams or more. N.C. Gen. Stat. \u00a7 90-95(h)(4)(c) (2009). The State bears the burden of establishing the identity of any controlled substance that is the basis of the prosecution. State v. Ward, 364 N.C. 133, 147, 694 S.E.2d 738, 747 (2010).\nIn State v. Llamas-Hernandez, our Supreme Court concluded that the visual identification by two police officers that a particular substance was cocaine was not reliable and that the identification of a controlled substance must be shown by chemical analysis. State v. Llamas-Hernandez, 363 N.C. 8, 673 S.E.2d 658 (2009) (reversing for reasons stated in the dissenting opinion of our Court, 189 N.C. App. 640, 652-54, 659 S.E.2d 79, 86-88 (2008)). Similarly, in Ward, the defendant\u2019s convictions were based upon the visual examination of pills by a forensic chemist, the State\u2019s expert witness. Ward, 364 N.C. at 136-37, 694 S.E.2d at 740. Our Supreme Court held that an expert witness\u2019s visual identification of an alleged controlled substance \u201cis not sufficiently reliable for criminal prosecutions[.]\u201d Id. at 147, 694 S.E.2d at 747. \u201cUnless the State establishes before the trial court that another method of identification is sufficient to establish the identity of the controlled substance beyond a reasonable doubt, some form of scientifically valid chemical analysis is required.\u201d Id. (emphasis added).\nHydrocodone, an opium derivative, is a controlled substance that is defined in terms of its chemical composition. N.C. Gen. Stat. \u00a7 90-91(d)(7) (2009).\nThe State is not required, as defendant suggests, to conduct a chemical analysis on a controlled substance in order to sustain a conviction under N.C. Gen. Stat. \u00a7 90-95(h)(4), provided that the State has established \u201cthe identity of the controlled substance beyond a reasonable doubt\u201d by \u201canother method of identification.\u201d See Ward, 364 N.C. at 147, 694 S.E.2d at 747. In our opinion, in the present case, the State\u2019s evidence sufficiently established the identity of the stolen drugs by another method.\nHere, William Martin, the pharmacist manager at Crossnore Drugstore \u2014 which was the pharmacy from which the drugs were stolen \u2014 testified on behalf of the State. Mr. Martin, who has been a pharmacist for thirty-five years, testified that 2,691 tablets of hydrocodone acetaminophen, an opium derivative, were stolen from the pharmacy on 22 March 2009. Mr. Martin testified that he kept \u201ca perpetual inventory of all of [the pharmacy\u2019s] drug items,\u201d inventoried \u201cby strength and item number],] and as new items come in, [those items are] added to that inventory automatically through a computer system and as things are dispensed they\u2019re taken away from the inventory by quantity.\u201d Through this process, Mr. Martin testified that he could account for the type and quantity of every item in his pharmacy inventory throughout the day, every day. Accordingly, Mr. Martin was able to identify which pill bottles were stolen from the pharmacy on 22 March by examining his inventory against the remaining bottles, because each bottle had \u201ca sticker on it from [the pharmacy\u2019s] distributor that identifies the item, the date it was purchased and a partial of [the pharmacy\u2019s] account number on that sticker.\u201d These stickers, which were on every pill bottle delivered to the pharmacy, aided Mr. Martin in determining that 2,691 tablets of hydrocodone acetaminophen were stolen. Mr. Martin further testified, based on his experience and knowledge as a pharmacist, that the weight of the stolen 2,691 pill tablets was approximately 1,472 grams. Based on Mr. Martin\u2019s thirty-five years of experience dispensing the same drugs that were stolen from the Crossnore Drugstore, and based on Mr. Martin\u2019s unchallenged and uncontroverted testimony regarding his detailed pharmacy inventory tracking process, we are persuaded that Mr. Martin\u2019s identification of the stolen drugs as more than 28 grams of opium derivative hydrocodone acetaminophen was sufficient evidence to establish the identity and weight of the stolen drugs and was not analogous to the visual identifications found to be insufficient in Ward and Llamas-Hemandez. Because the State offered evidence that was \u201csufficient to establish the identity of the controlled substance beyond a reasonable doubt,\u201d the State was not required to additionally perform \u201csome form of scientifically valid chemical analysis\u201d in order to establish that defendant \u201ctransport[ed] or possesse[d] . . . opium or opiate\u201d in violation of N.C. Gen. Stat. \u00a7 90-95(h)(4). See Ward, 364 N.C. at 147, 694 S.E.2d at 747. Accordingly, we conclude that the trial court did not err by denying defendant\u2019s motions to dismiss the charges of trafficking opium by possession and by transportation because the evidence presented, taken in the light most favorable to the State, was sufficient to sustain defendant\u2019s convictions under N.C. Gen. Stat. \u00a7 90-95(h)(4).\nAs we have found that the trial court did not err indenying defendant\u2019s motion to dismiss the felonious breaking and entering charge, the felony larceny charge, and the trafficking opium by possession and trafficking opium by transportation charges, we conclude that defendant received a fair trial free of any prejudicial error.\nNo error.\nChief Judge MARTIN and Judge McGEE concur.",
        "type": "majority",
        "author": "McCullough, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Allison A. Angel\u00ed, for the State.",
      "Mary March Exumfor defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CHRISTOPHER JAMES WOODARD\nNo. COA10-1172\n(Filed 5 April 2011)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to raise constitutional issue at trial\nAlthough defendant contended that the trial court violated his constitutional rights by requiring him to wear prison clothing during the jury selection and first day of trial, defendant failed to preserve this issue for appeal by not raising it at trial.\n2. Evidence\u2014 prior crimes or bad acts \u2014 broke into another pharmacy to obtain drugs\nThe trial court did not abuse its discretion in a drugs case by allowing the State to admit evidence allegedly in violation of N.C.G.S. \u00a7 8C-1, Rules 404(b) and 4\u00d33 including that defendant and his coparticipants broke into another pharmacy but were unable to obtain narcotics. The evidence was sufficiently similar and the jury was specifically instructed to consider the testimony for the limited purpose of motive, plan, opportunity, intent, preparation, knowledge, and/or identity with regard to the current offenses.\n3. Burglary and Unlawful Breaking or Entering \u2014 felonious breaking and entering \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of felonious breaking and entering. The State provided sufficient evidence that defendant broke into a drugstore with the intention of stealing narcotics.\n4. Larceny\u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of larceny. The State provided sufficient evidence that defendant broke into a drugstore, took pills, and carried the pills away without consent with the intent to deprive the drugstore of the pills permanently\n5. Drugs\u2014 trafficking opium by possession and transportation\u2014 motion to dismiss \u2014 sufficiency of evidence \u2014 identity\u2014weight\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of trafficking opium by possession and transportation. Contrary to defendant\u2019s assertion, the State was not required to conduct a chemical analysis on the controlled substance in order to sustain a conviction under N.C.G.S. \u00a7 90-5(h)(4). A pharmacist\u2019s identification of the stolen drugs as more than 28 grams of opium derivative hydrocodone acetaminophen was sufficient evidence of identity and weight of the stolen drugs.\nAppeal by defendant from judgments entered 28 April 2010 by Judge James U. Downs in Avery County Superior Court. Heard in the Court of Appeals 21 February 2011.\nAttorney General Roy Cooper, by Assistant Attorney General Allison A. Angel\u00ed, for the State.\nMary March Exumfor defendant appellant."
  },
  "file_name": "0725-01",
  "first_page_order": 733,
  "last_page_order": 741
}
