{
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  "name": "STATE OF NORTH CAROLINA v. CHRISTOPHER LEON BLAKNEY, Defendant",
  "name_abbreviation": "State v. Blakney",
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    "judges": [
      "Judges STEPHENS and DILLON concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. CHRISTOPHER LEON BLAKNEY, Defendant"
    ],
    "opinions": [
      {
        "text": "BRYANT, Judge.\nWhere the State presents sufficient evidence of each element of an offense, a motion to dismiss is properly denied. Where defendant can show no prejudice from irrelevant evidence admitted during an habitual felon proceeding, any error therefrom is harmless.\nOn 23 February 2011, Officer Neff of the Winston-Salem Police Department observed a car speeding and crossing the double-yellow center line while driving on Silas Creek Parkway around 10:00 p.m. Officer Neff initiated a traffic stop of the car and noticed that the driver, defendant Christopher Leon Blakney, smelled of alcohol and had glassy, bloodshot eyes. Officer Neff arrested defendant under suspicion of driving while impaired and called for assistance; Officer Allen responded.\nWhile searching defendant\u2019s car, Officer Allen found marijuana under the center armrest. A large amount of cash was found on the car\u2019s front floorboard along with a glass Mason jar containing marijuana residue. A digital scale and batteries were also found underneath the front seats. A white shopping bag containing a box of sandwich baggies and a glass Mason jar of marijuana was found in the trunk,along with a second bag containing additional marijuana packaging supplies. Four \u201cdime bags\u201d of marijuana were also found in the trunk. A total of 84.8 grams (2.99 ounces) of marijuana was recovered from defendant\u2019s car.\nOn 16 May 2011, a Forsyth County Grand Jury indicted defendant for possession with intent to sell or deliver marijuana, possession of drug paraphernalia, driving while impaired, and driving while license revoked. Defendant was also indicted as an habitual felon.\nOn 13 February 2013, a jury found defendant guilty of possession with intent to sell or deliver marijuana, possession of drug paraphernalia, and driving while license revoked. Defendant was found not guilty of driving while impaired. The jury also found defendant guilty of having attained the status of an habitual felon. The trial court sentenced defendant to 88 to 115 months in prison. Defendant appeals.\nOn appeal, defendant argues that the trial court erred in: (I) denying defendant\u2019s motion to dismiss; and (II) admitting evidence of an additional felony conviction during defendant\u2019s habitual felon proceeding.\nI.\nDefendant first argues that the trial court erred in denying his motion to dismiss at the close of all the evidence. We disagree.\nWe reviewthe trial court\u2019s denial of amotion to dismiss de novo. A motion to dismiss for insufficient evidence is properly denied if there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. All evidence, both competent and incompetent, and any reasonable inferences drawn therefrom, must be considered in the light most favorable to the State. Additionally, circumstantial evidence may be sufficient to withstand a motion to dismiss when a reasonable inference of defendant\u2019s guilt may be drawn from the circumstances. If so, it is the jury\u2019s duty to determine if the defendant is actually guilty.\nState v. Burton,__ N.C. App._,_, 735 S.E.2d 400, 404 (2012) (citations and quotations omitted). \u201cThe State is entitled to every reasonable inference to be drawn from the evidence. Contradictions and discrepancies do not warrant dismissal of the case; rather, they are for the jury to resolve. Defendant\u2019s evidence, unless favorable to the State, is not to be taken into consideration.\u201d State v. Franklin, 327 N.C. 162, 172, 393 S.E.2d 781, 787 (1990) (citations omitted).\nDefendant argues that the trial court erred in denying his motion to dismiss because the State failed to prove that defendant intended to sell or deliver marijuana. Specifically, defendant contends the State failed to prove defendant\u2019s intent to sell or deliver marijuana because the amount of marijuana found in defendant\u2019s car was too small to be the \u201csubstantial amount\u201d required for a possession with intent to sell or deliver marijuana conviction.\nPursuant to North Carolina General Statutes, section 90-95, the offense of possession with intent to sell or deliver has three elements: (1) possession; (2) of a controlled substance; with (3) the intent to sell or deliver that controlled substance. N.C. Gen. Stat. \u00a7 90-95(a)(l) (2013). The State may demonstrate intent through direct or circumstantial evidence. State v. Jackson, 145 N.C. App. 86, 89-90, 550 S.E.2d 225, 229 (2001). Although the \u201cquantity of the controlled substance alone may suffice to support the inference of an intent to transfer, sell or deliver,\u201d it must be a substantial amount. State v. Morgan, 329 N.C. 654, 659-60, 406 S.E.2d 833, 835-36 (1991). \u201c[T]he intent to sell or distribute may be inferred from (1) the packaging, labeling, and storage of the controlled substance, (2) the defendant\u2019s activities, (3) the quantity found, and (4) the presence of cash or drug paraphernalia.\u201d State v. Nettles, 170 N.C. App. 100, 106, 612 S.E.2d 172, 176 (2005).\nThe State concedes that lab testing was not completed on the marijuana collected from defendant\u2019s car. Defendant argues that because no testing was done, the total amount of marijuana collected (84.8 grams) is not accurate because this weight included marijuana seeds, stems, and other material that should have been excluded before weighing. Defendant further argues that even if the weight of the marijuana (84.8 grams) is accurate, such a small amount is consistent with personal use, rather than for sale or delivery. Defendant cites State v. Wiggins, 33 N.C. App. 291, 235 S.E.2d 265 (1977), and State v. Wilkins, 208 N.C. App. 729, 703 S.E.2d 807 (2010), in support of his argument.\nIn Wiggins, the defendant was convicted of possession with intent to sell or deliver marijuana after a total of 215.5 grams of marijuana was found growing in and around his home. This Court found that \u201cthis quantity alone, without some additional evidence, is not sufficient to raise an inference that the marijuana was for the purpose of distribution.\u201d Wiggins, 33 N.C. App. at 294-95, 235 S.E.2d at 268 (citations omitted).\nIn Wilkins, the defendant was stopped and arrested on several outstanding warrants. During a pat-down of the defendant, officers found three small bags of marijuana weighing a total of 1.89 grams and $1264.00 cash in small denominations. The defendant was convicted of possession with intent to sell or deliver marijuana and manufacturing marijuana. On appeal, this Corut reversed the defendant\u2019s conviction for possession with intent to sell or deliver marijuana, noting that \u201c[t]he evidence in this case, viewed in the light most favorable to the State, indicates that defendant was a drug user, not a drug seller.\u201d Wilkins, 208 N.C. App. at 733, 703 S.E.2d at 811.\nWe find Wiggins and Wilkins to be inapposite to the instant case. The State presented evidence that defendant\u2019s car contained a total of 84.8 grams of marijuana found in the body and trank of the car, and the marijuana was found in multiple containers including two \u201cpreviously vacuum sealed bags,\u201d two sandwich bags, four \u201cdime bags,\u201d and five other types of bags. Marijuana was also found in two glass Mason jars. A box of sandwich bags was found in the trank, and digital scales were found underneath the front seats of the car. This evidence showed not only a significant quantity of marijuana, but the manner in which the marijuana was packaged (such as four \u201cdime bags\u201d) raised more than an inference that defendant intended to sell or deliver the marijuana. Further, the presence of items commonly used in packaging and weighing drags for sale \u2014 a box of sandwich bags and digital scales \u2014 along with a large quantity of cash in small denominations provided additional evidence that defendant intended to sell or deliver marijuana, as opposed to merely possessing it for his own personal use as was determined to be the case in Wiggins and Wilkins. Therefore, taking the evidence in the light most favorable to the State, sufficient evidence of possession with intent to sell or deliver marijuana was presented to survive defendant\u2019s motion to dismiss. See State v. Baxter, 285 N.C. 735, 738, 208 S.E.2d 696, 698 (1974) (\u201cThe jury could reasonably infer an intent to distribute from the amount of the substance found, the manner in which it was packaged and the presence of other packaging materials.\u201d), overruled in part on other grounds by State v. Childers, 41 N.C. App. 729, 255 S.E.2d 654 (1979). Defendant\u2019s argument is overruled.\nII.\nDefendant next argues that the trial court erred in admitting evidence of an additional felony conviction at defendant\u2019s habitual felon proceeding. Specifically, defendant contends that by not redacting a second consolidated felony offense contained within a judgment offered into evidence by the State, the trial court committed error pursuant to Rules 401, 403, 404(b), and 609. We disagree.\nOn appeal, in reviewing a trial court\u2019s rulings under Rule 401 and 403, this Court has held that:\nAlthough the trial court\u2019s rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal. Because the trial court is better situated to evaluate whether a particular piece of evidence tends to make the existence of a fact of consequence more or less probable, the appropriate standard of review for a trial court\u2019s ruling on relevancy pursuant to Rule 401 is not as deferential as the \u2018abuse of discretion\u2019 standard which applies to rulings made pursuant to Rule 403.\nState v. Tadeja, 191 N.C. App. 439, 444, 664 S.E.2d 402, 407 (2008) (citation omitted). Evidence is relevant if it has \u201cany tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 401 (2013). \u201c[E]vidence is relevant if it has any logical tendency, however slight, to prove a fact in issue in the case .\"State v. Hannah, 312 N.C. 286, 294, 322 S.E.2d 148, 154 (1984) (citation omitted). \u201cAlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2013).\nNorth Carolina General Statutes, section 14-7.1, states that a person may be charged as an habitual felon if he \u201chas been convicted of or pled guilty to three felony offenses.\u201d N.C. Gen. Stat. \u00a7 14-7.1 (2013). For an habitual felon charge, the prior felony convictions of a defendant may be proven by \u201cstipulation of the parties or by the original or a certified copy of the court record of the prior [felony] conviction [pursuant to] N.C. Gen. Stat. \u00a7 14-7.4.\u201d State v. Gant, 153 N.C. App. 136, 143, 568 S.E.2d 909, 913 (2002). \u201c[T]he preferred method for proving a prior conviction includes the introduction of the judgment itself into evidence.\u201d State v. Maynard, 311 N.C. 1, 26, 316 S.E.2d 197, 211 (1984) (citation omitted).\nThe State, in prosecuting the habitual felon charge against defendant, introduced into evidence certified copies of three prior judgments: judgment for possession with intent to sell/deliver cocaine entered on 8 May 1997; judgment for possession with intent to manufacture, sell and deliver cocaine entered on 8 October 1998; and judgment for possession with intent to sell or deliver marijuana entered on 8 May 2003. Each judgment included a copy of the corresponding plea transcript. The judgment which defendant challenges, entered 8 May 1997, involved two felony convictions, each for possession with intent to sell or deliver cocaine, which had been consolidated into one judgment. Defendant argues that the trial court\u2019s refusal to redact one of the two felony convictions attached to the judgment was highly prejudicial to him. We disagree. While the additional felony conviction was irrelevant in determining whether defendant was an habitual felon, defendant has not demonstrated how this evidence prejudiced him.\nDefendant bears the burden of proving the testimony was erroneously admitted and he was prejudiced by the erroneous admission. The admission of evidence which is technically inadmissible will be treated as harmless unless prejudice is shown such that a different result likely would have ensued had the evidence been excluded.\nState v. Moses, 350 N.C. 741, 762, 517 S.E.2d 853, 867 (1999) (citations and quotation omitted).\nIn admitting the judgments into evidence, the trial court denied defendant\u2019s redaction request as to the consolidated judgment, noting that \u201c[defendant] pled to whatever he pled to. It was just consolidated.\u201d The trial court then gave jury instructions as to the habitual felon charge which directed and limited the jury\u2019s consideration of the evidence to three specific felony convictions only. As such, the record reflects nothing to indicate that defendant was prejudiced by the inclusion of the additional conviction. Moreover, defendant has not challenged the validity of the prior convictions, the plea transcripts, or the resulting judgments. \u201cGiven the overwhelming and uncontradicted evidence of the three felony convictions, there is essentially no likelihood that a different result. . . would have ensued if the trial court had redacted [the additional conviction].\u201d State v. Ross, 207 N.C. App. 379, 400, 700 S.E.2d 412, 426 (2010) (citation, quotation and bracket omitted). Accordingly, defendant\u2019s argument is overruled.\nNo error.\nJudges STEPHENS and DILLON concur.\n. When asked to clarify what he meant when he said \u201cdime bag,\u201d Officer Allen testified that a \u201cdime bag\u201d is \u201ca small plastic bag often used in the packaging for sale of illegal narcotics. So those who sell these - sell narcotics break their product down to get it - they get it in large shipments and break it down into the smaller sellable items, packages for easy transactions, very small scale and discrete transactions.\u201d",
        "type": "majority",
        "author": "BRYANT, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Special Deputy Attorney General James M. Stanley, Jr., for the State.",
      "Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CHRISTOPHER LEON BLAKNEY, Defendant\nNo. COA13-1088\nFiled 15 April 2014\n1. Drugs \u2014 marijuana\u2014intent to sell or deliver \u2014 evidence sufficient\nThe trial court did not err by denying defendant\u2019s motion to dismiss a charge of possession with intent to sell or deliver marijuana. Although defendant contended that the amount of marijuana found in his car was too small for intent to sell or deliver as opposed to mere possession for personal use, the circumstances provided sufficient evidence to survive defendant\u2019s motion to dismiss.\n2. Sentencing \u2014 habitual felon proceeding \u2014 evidence of consolidated offense\nThere was no error at a habitual felon proceeding where a judgment offered into evidence contained an additional, consolidated, felony offense. The trial court gave jury instructions which directed and limited the jury\u2019s consideration of the evidence to three specific felony convictions only and, given the overwhelming and uncontra-dicted evidence of the three convictions, there was essentially no likelihood of a different result if the trial court had redacted the additional conviction.\nAppeal by defendant from judgment entered 13 February 2013 by Judge William Z. Wood, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 19 February 2014.\nAttorney General Roy Cooper, by Special Deputy Attorney General James M. Stanley, Jr., for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant-appellant."
  },
  "file_name": "0516-01",
  "first_page_order": 526,
  "last_page_order": 532
}
