{ "id": 4364604, "name": "STATE OF NORTH CAROLINA v. JONATHAN LYNN BURROW", "name_abbreviation": "State v. Burrow", "decision_date": "2012-02-07", "docket_number": "No. COA11-773", "first_page": "373", "last_page": "384", "citations": [ { "type": "official", "cite": "218 N.C. App. 373" } ], "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": "659 S.E.2d 79", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640827 ], "year": 2008, "pin_cites": [ { "page": "87", "parenthetical": "Steelman, J., concurring in part and dissenting in part" } ], "opinion_index": 0, "case_paths": [ "/se2d/659/0079-01" ] }, { "cite": "656 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640370 ], "year": 2008, "pin_cites": [ { "page": "699-700" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0697-01" ] }, { "cite": "650 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639310 ], "year": 2007, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/se2d/650/0029-01" ] }, { "cite": "132 L. Ed. 2d 818", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "515 U.S. 1135", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1563969, 1564577, 1564483, 1564008, 1564296, 1564331, 1564174, 1563855, 1564503, 1564049, 1563795, 1563863, 1563768, 1564252, 1564093 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/us/515/1135-02", "/us/515/1135-14", "/us/515/1135-10", "/us/515/1135-04", "/us/515/1135-15", "/us/515/1135-07", "/us/515/1135-03", "/us/515/1135-09", "/us/515/1135-08", "/us/515/1135-01", "/us/515/1135-12", "/us/515/1135-11", "/us/515/1135-05", "/us/515/1135-06", "/us/515/1135-13" ] }, { "cite": "451 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "223" } ], "opinion_index": 0 }, { "cite": "339 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556681 ], "year": 1994, "pin_cites": [ { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0172-01" ] }, { "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" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "148 L. Ed. 2d 150", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "531 U.S. 890", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9564641, 9565507, 9564931, 9565413, 9565127, 9565834, 9565727, 9565933, 9565644, 9565235, 9564441, 9564731, 9564539, 9564829, 9565023 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/531/0890-03", "/us/531/0890-11", "/us/531/0890-06", "/us/531/0890-10", "/us/531/0890-08", "/us/531/0890-14", "/us/531/0890-13", "/us/531/0890-15", "/us/531/0890-12", "/us/531/0890-09", "/us/531/0890-01", "/us/531/0890-04", "/us/531/0890-02", "/us/531/0890-05", "/us/531/0890-07" ] }, { "cite": "526 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "455" } ], "opinion_index": 0 }, { "cite": "351 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155599 ], "year": 2000, "pin_cites": [ { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0373-01" ] }, { "cite": "197 S.E.2d 539", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1973, "pin_cites": [ { "page": "548" }, { "page": "603" }, { "page": "548" }, { "parenthetical": "citation omitted" }, { "parenthetical": "quotation marks and citation omitted" }, { "page": "548" } ], "opinion_index": 0 }, { "cite": "283 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559660 ], "weight": 3, "year": 1973, "pin_cites": [ { "page": "602" }, { "page": "603" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0589-01" ] }, { "cite": "446 S.E.2d 92", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "98" }, { "page": "223" }, { "page": "99" } ], "opinion_index": 0 }, { "cite": "337 N.C. 212", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550843 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "222" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0212-01" ] }, { "cite": "515 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1999, "pin_cites": [ { "page": "896" }, { "page": "896" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "350 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131924 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "500" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0483-01" ] }, { "cite": "673 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "363 N.C. 8", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150659 ], "year": 2009, "opinion_index": 0, "case_paths": [ "/nc/363/0008-01" ] }, { "cite": "189 N.C. App. 640", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156165 ], "year": 2008, "pin_cites": [ { "page": "654", "parenthetical": "Steelman, J., concurring in part and dissenting in part" } ], "opinion_index": 0, "case_paths": [ "/nc-app/189/0640-01" ] }, { "cite": "718 S.E.2d 623", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "opinion_index": 0 }, { "cite": "699 S.E.2d 640", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 245", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "694 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152316 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/nc/364/0133-01" ] }, { "cite": "681 S.E.2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "371" } ], "opinion_index": 0 }, { "cite": "199 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4169916 ], "year": 2009, "pin_cites": [ { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/nc-app/199/0001-01" ] }, { "cite": "687 S.E.2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "309" } ], "opinion_index": 0 }, { "cite": "201 N.C. App. 707", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4173617 ], "pin_cites": [ { "page": "712-13" } ], "opinion_index": 0, "case_paths": [ "/nc-app/201/0707-01" ] }, { "cite": "702 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "238", "parenthetical": "where, despite the officers' credentials and experience, the testimony of the officers and the defendant identifying the substance at issue as cocaine was not sufficient to show the substance the defendant possessed was actually cocaine" } ], "opinion_index": 0 }, { "cite": "188 N.C. App. 832", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155039 ], "year": 2008, "pin_cites": [ { "page": "835" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0832-01" ] }, { "cite": "693 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "189" } ], "opinion_index": 0 }, { "cite": "174 L. Ed. 2d 314", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 3657952 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "332" }, { "page": "321", "parenthetical": "testimonial evidence includes \" 'statements 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' \" (citation omitted)" } ], "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": "68" }, { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "681 S.E.2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "304", "parenthetical": "citing Crawford v. Washington, 541 U.S. 36, 68, 158 L. Ed. 2d 177, 203 (2004)" } ], "opinion_index": 0 }, { "cite": "363 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151754 ], "year": 2009, "pin_cites": [ { "page": "452", "parenthetical": "citing Crawford v. Washington, 541 U.S. 36, 68, 158 L. Ed. 2d 177, 203 (2004)" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0438-01" ] }, { "cite": "713 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "234" } ], "opinion_index": 0 }, { "cite": "186 N.C. App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8154614 ], "year": 2007, "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0057-01" ] }, { "cite": "713 S.E.2d 576", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "582-83", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "352 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "661" } ], "opinion_index": 1 }, { "cite": "319 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741422 ], "year": 1987, "pin_cites": [ { "page": "15" } ], "opinion_index": 1, "case_paths": [ "/nc/319/0001-01" ] }, { "cite": "319 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "588" } ], "opinion_index": 1 }, { "cite": "311 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4681279 ], "year": 1984, "pin_cites": [ { "page": "661" } ], "opinion_index": 1, "case_paths": [ "/nc/311/0656-01" ] }, { "cite": "74 L. Ed. 2d. 513", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 1 }, { "cite": "459 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6468801, 6468547, 6469476, 6468711, 6469608, 6469353, 6468967, 6468624, 6468240, 6468465, 6469044, 6468343, 6469144, 6469246 ], "year": 1982, "opinion_index": 1, "case_paths": [ "/us/459/1018-07", "/us/459/1018-04", "/us/459/1018-13", "/us/459/1018-06", "/us/459/1018-14", "/us/459/1018-12", "/us/459/1018-08", "/us/459/1018-05", "/us/459/1018-01", "/us/459/1018-03", "/us/459/1018-09", "/us/459/1018-02", "/us/459/1018-10", "/us/459/1018-11" ] }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "year": 1982, "pin_cites": [ { "page": "1002" } ], "opinion_index": 1, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d. 513 (1982)" } ], "opinion_index": 1 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d. 513 (1982)" } ], "opinion_index": 1, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "197 S.E.2d 539", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1973, "pin_cites": [ { "page": "548", "parenthetical": "holding that admission of an officer's testimony was error, but the error was \"cured when testimony of like import was admitted\" on cross-examination" }, { "page": "549" } ], "opinion_index": 1 }, { "cite": "283 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559660 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "603", "parenthetical": "holding that admission of an officer's testimony was error, but the error was \"cured when testimony of like import was admitted\" on cross-examination" }, { "page": "604" } ], "opinion_index": 1, "case_paths": [ "/nc/283/0589-01" ] }, { "cite": "446 S.E.2d 92", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "99", "parenthetical": "\"Assuming arguendo that the court erred in reversing its ruling and admitting the evidence, the error could not have been prejudicial. Defendant had just elicited the same evidence from [the State's witness.]\"" } ], "opinion_index": 1 }, { "cite": "337 N.C. 212", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550843 ], "year": 1994, "pin_cites": [ { "page": "223", "parenthetical": "\"Assuming arguendo that the court erred in reversing its ruling and admitting the evidence, the error could not have been prejudicial. Defendant had just elicited the same evidence from [the State's witness.]\"" } ], "opinion_index": 1, "case_paths": [ "/nc/337/0212-01" ] }, { "cite": "515 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "896", "parenthetical": "\"Even assuming arguendo that defendant has properly preserved this issue, he is still not entitled to a new trial. During cross-examination of [the State's witness], defendant elicited information regarding the assault____\"" } ], "opinion_index": 1 }, { "cite": "350 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131924 ], "year": 1999, "pin_cites": [ { "page": "501", "parenthetical": "\"Even assuming arguendo that defendant has properly preserved this issue, he is still not entitled to a new trial. During cross-examination of [the State's witness], defendant elicited information regarding the assault____\"" } ], "opinion_index": 1, "case_paths": [ "/nc/350/0483-01" ] } ], "analysis": { "cardinality": 985, "char_count": 26502, "ocr_confidence": 0.753, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14891331502338553 }, "sha256": "ac2c393f7eca1b5ae05b6df8b31cb9163c1d03d8c6b483ae7236ef02198fd0ca", "simhash": "1:028b7cee39579c6a", "word_count": 4228 }, "last_updated": "2023-07-14T20:21:59.538017+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge GEER concurs.", "Judge HUNTER, Robert C., dissents in a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. JONATHAN LYNN BURROW" ], "opinions": [ { "text": "HUNTER, JR., Robert N., Judge.\nJonathan Lynn Burrow (\u201cDefendant\u201d) appeals from a jury verdict finding him guilty of trafficking in oxycodone. Defendant argues the trial court violated his Sixth Amendment right of confrontation by allowing into evidence a non-testifying analyst\u2019s forensic analysis report (the \u201cSBI report\u201d) and testimony of a detective regarding the results of the SBI report. Defendant also argues the trial court erred by denying his motion to dismiss for lack of substantial evidence to support the charges. We disagree that the trial court erred in denying Defendant\u2019s motion to dismiss. However, we agree the trial court erred by allowing the SBI report and testimony regarding the results of the report into evidence. Therefore, we grant Defendant a new trial.\nI. Factual & Procedural Background\nOn 11 January 2010, a Lincoln County grand jury indicted Defendant for trafficking opium or heroin. Defendant was tried during the 21 February 2011 criminal session of the Lincoln County Superior Court before the Honorable Beverly T. Beal. The State\u2019s evidence tended to show the following. On 2 December 2009, Patrol Sergeant Spencer Sumner of the Lincolnton police department responded to a call between 11:00 p.m. and 11:30 p.m. to investigate a car parked in the \u201cCheers and Wings\u201d restaurant parking lot on North Aspen Street in Lincolnton. Sergeant Sumner parked his patrol car and walked up to the car. He found Defendant in the driver\u2019s seat, one female in the front passenger seat, and another female in the back seat.\nDefendant consented to a search of his vehicle, and Sergeant Sumner found a pill grinder between the driver\u2019s seat and the front passenger seat. Defendant told the Sergeant he had a prescription for hydrocodone and used the pill grinder to grind the pills because he could not swallow them whole. While the Sergeant completed the search of the vehicle, other officers conducted a pat down search of Defendant and the two females. A prescription pill bottle with the name \u201cMichael Burrow\u201d was found in Defendant\u2019s pocket. Defendant indicated Michael Burrow was his brother and that they lived together. Twenty-four pills were in the bottle, and Defendant and the bottle\u2019s label indicated the pills were Endocet (the brand name version of oxycodone). Defendant told Sergeant Sumner he had a prescription for hydrocodone, and the Sergeant told Defendant he would give him the pills back if Defendant brought him the prescription. Defendant did not produce a prescription. Sergeant Sumner confirmed that Michael Burrow was never interviewed before Defendant was charged for having his pills in another person\u2019s bottle. Sergeant Sumner also confirmed there was no evidence the pills were going to be sold.\nDetective Jason Munday of the Lincolnton police department called poison control, described the pills, and sent them to the SBI lab for testing. The State introduced the SBI report into evidence as \u201cState\u2019s Exhibit 5\u201d during Detective Munday\u2019s testimony, although the analysis on the pills was conducted by Brad Casanova. Detective Munday testified the report identified the pills as containing oxycodone and weighing 10.7 grams. The exhibit was published to the jury. Neither Mr. Casanova nor any analyst testified at trial.\nAt the close of the State\u2019s evidence and after stating he would present no evidence, Defendant moved to dismiss the charge due to lack of sufficient evidence. The trial court denied both motions. The jury convicted Defendant of trafficking in oxycodone on 24 February 2011. The trial court sentenced Defendant to a term of imprisonment of 70 to 84 months with a 108 day pre-trial confinement credit and fined him $50,000. Defendant gave oral notice of appeal in open court.\nII. Jurisdiction & Standards of Review\nAs Defendant appeals from the final judgment of a superior court, an appeal lies of right with this court pursuant to N.C. Gen. Stat. \u00a7 7A-27(b) (2011).\nIf Defendant shows that error has occurred, this Court\u2019s review of the issue is limited to plain error because Defendant made no objections at trial regarding the admission of the forensic report or the detective\u2019s testimony regarding the report. See N.C.R. App. P. 10(a)(4). Plain error\nis always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the . . . mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\nState v. Flaugher, _ N.C. App. _, _, 713 S.E.2d 576, 582-83 (2011) (citation and quotation marks omitted).\n\u201cThis Court reviews the trial court\u2019s denial of a motion to dismiss de novo,\u201d State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).\nIII. Analysis\nThe first question in the plain error analysis is whether the trial court committed any error at all. State v. Ellison,_N.C. App._, ._, 713 S.E.2d 228, 234 (2011). Defendant argues it was error for the trial court to admit the SBI report into evidence as Brad Casanova, the SBI analyst who put together the report, did not testify at trial in violation of Defendant\u2019s confrontation right under the Sixth Amendment. Defendant also argues it was error to allow Detective Munday to read the contents of the report during his testimony when he did not participate in the analysis in any way. We agree.\n\u201cThe Confrontation Clause of the Sixth Amendment bars admission of testimonial evidence unless the declarant is unavailable to testify and the accused has had a prior opportunity to cross-examine the declarant.\u201d State v. Locklear, 363 N.C. 438, 452, 681 S.E.2d 293, 304 (2009) (citing Crawford v. Washington, 541 U.S. 36, 68, 158 L. Ed. 2d 177, 203 (2004)). The U.S. Supreme Court has recently applied the holding in Crawford to documents or reports that the government seeks to enter into evidence that are \u201ctestimonial\u201d in nature, holding that \u201c[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence [is] error.\u201d Melendez-Diaz v. Massachusetts, 557 U.S._, _, 174 L. Ed. 2d 314, 332 (2009).\nThis Court has developed a four part test to apply the rules laid out by Locklear and Melendez-Diaz-.\n(1) determine whether the document at issue was testimonial, (2) if the document was testimonial, ascertain whether the declarant was unavailable at trial and defendant was given a prior opportunity to cross-examine the declarant, (3) if the defendant was not afforded the opportunity to cross-examine the unavailable declarant, decide whether the testifying expert was offering an independent opinion or merely summarizing another non-testifying expert\u2019s report or analysis, and (4) if the testifying expert summarized another non-testifying expert\u2019s report or analysis, determine whether the admission of the document through another testifying expert was reversible error.\nState v. Brewington, _N.C. App. _, _, 693 S.E.2d 182, 189 (2010). In this case, the law is clear that the report admitted into evidence and referred to by Detective Munday was testimonial in nature. Melendez-Diaz, 557 U.S. at_, 174 L. Ed. 2d at 321 (testimonial evidence includes \u201c \u2018statements 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\u2019 \u201d (citation omitted)). There is also nothing to indicate Mr. Casanova, the analyst who prepared the report, was unavailable at trial or that Defendant had a prior opportunity to cross-examine Mr. Casanova. Therefore, we hold the report was inadmissible testimonial evidence.\nWe next determine whether Detective Munday\u2019s testimony regarding the report was an independent expert opinion or merely a summation of inadmissible testimonial evidence. Detective Munday was not qualified as an expert regarding the analysis, and he did not participate in the analysis in any way. He testified that he sent the pills to SBI for analysis and received the results in the report. The court admitted the report into evidence without any objection from Defendant. Detective Munday then read directly from the report, stating, \u201cIt says, results of examination Item 1, oxycodone-Schedule II; weight 10.7 grams[,]\u201d and the report was published to the jury. Because Detective Munday merely summarized inadmissible testimonial evidence and had no independent expert opinion to offer, we hold it was error to allow Detective Munday to testify concerning the composition of the confiscated substance at issue in this case.\nWe now turn to the question of whether this error constitutes plain error requiring reversal. Under plain error, a defendant must show \u201c \u2018not only that there was error, but that absent the error, the jury probably would have reached a different result.\u2019 \u201d Ellison,_ N.C. App. at_, 713 S.E.2d at 234 (citation omitted). \u201cAccordingly, [the] defendant must show that absent the erroneous admission of the challenged evidence, the jury probably would not have reached its verdict of guilty.\u201d State v. Cunningham, 188 N.C. App. 832, 835, 656 S.E.2d 697, 699-700 (2008).\nBesides the inadmissible SBI report and the testimony regarding it, the only other evidence offered by the State concerning the composition of the pills was Sergeant Sumner\u2019s testimony that Defendant claimed the pills were his hydrocodone pills, that he had a prescription for them, and that he grinded them up because he could not swallow them. Additionally, in response to defense counsel\u2019s question regarding whether the ingredients on the pill bottle matched what the SBI lab determined was in the bottle, Detective Munday responded, \u201cYes. They said it was oxycodone.\u201d However, such \u201cidentifying\u201d statements by the defendant and police officers are insufficient to show what a substance is; the State must present evidence of the chemical makeup of the substance at issue. See State v. Williams,_N.C. App._,_, 702 S.E.2d 233, 238 (2010) (where, despite the officers\u2019 credentials and experience, the testimony of the officers and the defendant identifying the substance at issue as cocaine was not sufficient to show the substance the defendant possessed was actually cocaine). \u201c \u2018[E]xisting precedent suggests that controlled substances defined in terms of their chemical composition can only be identified through the use of a chemical analysis rather than through the use of lay testimony based on visual inspection.\u2019 \u201d State v. Meadows, 201 N.C. App. 707, 712-13, 687 S.E.2d 305, 309 (quoting State v. Ward, 199 N.C. App. 1, 26, 681 S.E.2d 354, 371 (2009), aff'd, 364 N.C. 133, 694 S.E.2d 738 (2010)), cert. denied, 364 N.C. 245, 699 S.E.2d 640 (2010).\nWe note our Supreme Court\u2019s decision in State v. Nabors,_N.C. _,_, 718 S.E.2d 623,_(2011), permitted testimony of the defendant\u2019s lay witness that the substance at issue was \u201ccocaine\u201d as sufficient evidence to identify the controlled substance as cocaine. However, we find this case distinguishable from the case at hand because, here, Defendant incorrectly identified the pills as \u201chydrocodone\u201d and not \u201coxycodone.\u201d No witness, not even a lay witness, correctly identified the pills in this case. Detective Munday\u2019s testimony regarding the pills was based solely on the inadmissible SBI report and was thus also insufficient to identify the substance at issue as oxycodone beyond a reasonable doubt. Although \u201cit might be permissible\u201d for an officer to render a lay opinion as to a substance with a \u201cdistinctive color, texture, and appearancef,]\u201d it is not appropriate for an officer to render an opinion regarding a non-descript substance. State v. Llamas-Hernandez, 189 N.C. App. 640, 654, 659 S.E.2d 79, 87 (2008) (Steelman, J., concurring in part and dissenting in part) (where it was impermissible for an officer with extensive training in the field of narcotics to render an opinion that a nondescript white powdery substance was crack cocaine), rev\u2019d and dissent adopted, 363 N.C. 8, 673 S.E.2d 658 (2009).\nHere, Detective Munday did, not testify based on his own experience and training as a narcotics officer as to what he believed the substance to be. Even if he had testified, a review of the briefs, record, and transcript shows there is no evidence presented that the pills had a distinctive color, texture, or appearance that would permit such testimony. Absent the erroneous admission of the SBI report and testimony regarding the report, no chemical analysis evidence was presented to the jury to show the pills were oxycodone. Without such evidence, we hold a jury could not have convicted Defendant of trafficking in oxycodone. Therefore, we hold the error of admitting the SBI report and testimony regarding it to be plain error.\nWe note the dissent believes the response of Detective Munday elicited by Defendant that \u201cThey said it was oxycodone\u201d is sufficient to prevent the erroneous admission of the SBI report evidence to be classified as plain error. The dissent refers to State v. Nobles, 350 N.C. 483, 515 S.E.2d 885 (1999), State v. Johnson, 337 N.C. 212, 446 S.E.2d 92 (1994), and State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539 (1973), for support for the proposition that \u201ceven where a defendant objected to the admission of inadmissible evidence, defendant was not prejudiced by the admission because he brought forth the same evidence on cross-examination.\u201d However, each of these cases is distinguishable from the situation at hand.\nIn Nobles, the defendant, charged with murder, argued the trial court erred by allowing allegations for and the contents of a warrant into evidence, though he did not properly object to this evidence at trial. 350 N.C. at 500, 515 S.E.2d at 896. Our Supreme Court agreed that warrant evidence is generally considered inadmissible hearsay but did not grant the defendant a new trial because the defendant elicited information regarding the assault, the defendant testified on both direct and cross-examination regarding the assault, and another witness testified \u201cat length\u201d about the assault without objection. Id. at 501, 515 S.E.2d at 896. The Court noted that the \u201c \u2018admission of evidence without objection waive[d] prior or subsequent objection to the admission of evidence of a similar character.\u2019 \u201d Id. (citation omitted).\nIn Johnson, the defendant, charged with murder, burglary, kidnapping, robbery, and conspiracy, argued the trial court erred in admitting evidence of prior bad acts. 337 N.C. at 222, 446 S.E.2d at 98. Our Supreme Court ruled that the error was not prejudicial because the defendant had elicited the same evidence from another witness and because the \u201cdefendant [ ] failed to show any reasonable possibility that the jury would have reached a different result.\u201d Id. at 223, 446 S.E.2d at 99.\nIn Van Landingham, the defendant, charged with murder, argued the trial court erred by admitting an officer\u2019s testimony regarding what the victim told him. 283 N.C. at 602, 197 S.E.2d at 548. Our Supreme Court ruled that the statements were inadmissible hearsay statements and that the trial court erred. Id. at 603, 197 S.E.2d at 548. However, the Court ruled the error was cured when similar testimony was admitted thereafter without objection. Id. The Court noted, \u201cThe well established rule in this State is that \u2018when incompetent evidence is admitted over objection, but the same evidence has theretofore or thereafter been admitted without objection, the benefit of the objection is ordinarily lost.\u201d Id. (citation omitted). However, \u201c[This] does not mean that the adverse party may not, on cross-examination, explain the evidence, or destroy its probative value, or even contradict it with other evidence upon peril of losing the benefit of his exception.\u201d Id. (quotation marks and citation omitted).\nHere, Defendant, charged with trafficking opium or heroin, argues the trial court erred in admitting a non-testifying analyst\u2019s SBI report and the testimony of Detective Munday regarding the report into evidence. We and the dissent agree that such admission was error. We also hold the error constitutes plain error because, unlike in Nobles, we have only one statement by Detective Munday that the substance at issue is oxycodone. Defendant did not testify, and no other witnesses testified even briefly regarding identification of the substance at issue. Unlike in Johnson, here, Defendant has not failed to show any reasonable possibility the jury would have reached a different result if the contested evidence had not been admitted. In fact, without the admission of the SBI report, we find it very likely the jury would have reached another result. And finally, though the Van Landingham Court emphasizes the rule that the erroneous admission of evidence is cured when similar testimony is admitted thereafter without objection, our Supreme Court expressly stated that this does not prevent the defendant from \u201cexplaining] the evidence.\u201d Van Landingham, 283 N.C. at 603, 197 S.E.2d at 548. Here, defense counsel simply asked Detective Munday if the ingredients on the pill bottle matched what the SBI lab determined was in the bottle. Defendant elicited no at length discussion regarding the identification of the substance as oxycodone and simply asked a clarifying question to explain the evidence. Thus, we find this case distinguishable from Nobles, Johnson, and Van Landingham. Moreover, none of these cases involves evidence admitted regarding the identification of a drug. Accordingly, they provide no guidance regarding whether Detective Munday\u2019s statement is competent evidence the State can use to prove its case. Therefore, we rely on established precedent that statements by a police officer are insufficient to identify a nondescript substance such as the one at issue in this case. We hold the trial court committed plain error by admitting the SBI report evidence and testimony concerning the report.\nDefendant also argues the trial court erred when it denied Defendant\u2019s motion to dismiss because the evidence, taken in the light most favorable to the State, was insufficient as a matter of law to convict him. \u201cUpon defendant\u2019s motion for dismissal, the question for the Court is whether 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 peipetrator of such offense. If so, the motion is properly denied.\u201d State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980). \u201cIn making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.\u201d State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).\nHere, there was substantial evidence that a reasonable mind might accept as adequate to support that Defendant committed the charged offenses. Taking the evidence in the light most favorable to the State, the evidence shows that Defendant told Sergeant Sumner he used the pill grinder found between the driver\u2019s seat and the front passenger seat to grind his hydrocodone pills. A prescription pill bottle containing 24 pills and labeled Endocet (the brand name version of oxycodone) was found in Defendant\u2019s pocket. The SBI report confirmed the pills were oxycodone, and Detective Munday testified to the SBI report\u2019s results. Although it was error for the trial court to admit the SBI report and testimony concerning the results of the report into evidence as discussed above, the trial court must consider both competent and incompetent evidence when ruling on a motion to dismiss. Thus, we hold the trial court did not err in denying Defendant\u2019s motion to dismiss. Nevertheless, we grant Defendant a new trial due to the violation of his Sixth Amendment right to confrontation.\nIV. Conclusion\nFor the foregoing reasons, Defendant is deserving of a new trial.\nNew trial.\nJudge GEER concurs.\nJudge HUNTER, Robert C., dissents in a separate opinion.", "type": "majority", "author": "HUNTER, JR., Robert N., Judge." }, { "text": "HUNTER, Robert C.,\nJudge, dissenting\nI agree with the majority that admission of the SBI report and Detective Munday\u2019s regurgitation of the contents of that report were erroneously admitted when presented by the State. However, because defendant elicited substantially the same information during cross-examination of Detective Munday, which established that the SBI identified the substance at issue as oxycodone, defendant has failed to establish plain error. Consequently, I respectfully dissent from the majority opinion.\nDefendant did not object to admission of the State\u2019s evidence and now contends plain error occurred. Plain error arises when the error is \u201c \u2018so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]\u2019 \u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d. 513 (1982)).\nThe general rule established by our caselaw is that \u201c[wjhere evidence is admitted over objection, and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost.\u201d State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984). Our Supreme Court has consistently held that even where a defendant objected to the admission of inadmissible evidence defendant was not prejudiced by the admission because he brought forth the same evidence on cross-examination. See, e.g., State v. Nobles, 350 N.C. 483, 501, 515 S.E.2d 885, 896 (1999) (\u201cEven assuming arguendo that defendant has properly preserved this issue, he is still not entitled to a new trial. During cross-examination of [the State\u2019s witness], defendant elicited information regarding the assault____\u201d); State v. Johnson, 337 N.C. 212, 223, 446 S.E.2d 92, 99 (1994) (\u201cAssuming arguendo that the court erred in reversing its ruling and admitting the evidence, the error could not have been prejudicial. Defendant had just elicited the same evidence from [the State\u2019s witness.]\u201d); State v. Van Landingham, 283 N.C. 589, 603, 197 S.E.2d 539, 548 (1973) (holding that admission of an officer\u2019s testimony was error, but the error was \u201ccured when testimony of like import was admitted\u201d on cross-examination).\nHere, defendant failed to object to the State\u2019s evidence concerning the SBI report and then proceeded to elicit the result of the SBI report from Detective Munday on cross-examination. Even though this evidence violated defendant\u2019s Confrontation Clause rights when admitted by the State, based on our caselaw, defendant has failed to demonstrate prejudicial error, much less plain error, such that a new trial is warranted. Because the jury was informed, through defendant\u2019s cross-examination, that the SBI determined that the pills in defendant\u2019s possession were oxycodone pills, we fail to see how the jury would have reached a different result.\nI acknowledge that a defendant may question a witness along the same lines as the State without losing the benefit of his objection (had he made one), but only \u201cfor the purpose of impeaching his testimony or establishing its incompetency.\u201d Van Landingham, 283 N.C. at 604, 197 S.E.2d at 549. Here, it is clear that \u201cthe cross-examiner\u2019s questions were general ones, propounded for the sole purpose of amplifying the information [Officer Munday] had given on direct examination.\u201d Id. Even if Officer Munday was simply \u201cclarifying\u201d a point for the jury, as the majority contends, that clarification reiterated the result of the SBI report. \u201c[I]t is imperative that defendant decide at trial whether he wants the statement admitted or not.\u201d State v. Stokes, 319 N.C. 1, 15, 352 S.E.2d 653, 661 (1987). Not only did defendant fail to object to the result of the SBI report, he went on to clarify the result of that report for the jury.\nIn sum, because the result of the SBI report was elicited by defendant on cross-examination before the jury, defendant cannot establish plain error on appeal. I must, therefore, dissent from the majority opinion.", "type": "dissent", "author": "HUNTER, Robert C.," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Barry H. Bloch, for the State.", "James N. Freeman, Jr., for Defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JONATHAN LYNN BURROW\nNo. COA11-773\n(Filed 7 February 2012)\n1. Evidence \u2014 SBI report \u2014 testimony regarding report \u2014 non-testifying analyst \u2014 plain error\nThe trial court committed plain error in a trafficking in oxycodone case by admitting into evidence a State Bureau of Investigation (SBI) report detailing the chemical analysis of pills discovered in defendant\u2019s pocket when the SBI analyst who put together the report did not testify at trial. Further, the trial court committed plain error in allowing a police detective to read the contents of the report during his testimony when he did not participate in the analysis in any way.\n2. Drugs \u2014 trafficking in oxycodone \u2014 sufficient evidence\u2014 competent and incompetent evidence considered\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of trafficking in oxycodone. Although it was error for the trial court to admit a State Bureau of Investigation report and testimony concerning the results of the report into evidence, the trial court must consider both competent and incompetent evidence when ruling on a motion to dismiss. The State presented sufficient evidence of each essential element of the offense charged, or of a lesser offense included therein, and of defendant\u2019s being the perpetrator of such offense.\nAppeal by Defendant from judgment entered 24 February 2011 by Judge Beverly T. Beal in Lincoln County Superior Court. Heard in the Court of Appeals 16 November 2011.\nAttorney General Roy Cooper, by Assistant Attorney General Barry H. Bloch, for the State.\nJames N. Freeman, Jr., for Defendant-appellant." }, "file_name": "0373-01", "first_page_order": 383, "last_page_order": 394 }