State Of North Carolina v. Ferguson, COA09-1048.
| Decision Date | 15 June 2010 |
| Docket Number | No. COA09-1048.,COA09-1048. |
| Citation | 694 S.E.2d 470 |
| Parties | STATE of North Carolinav.Jessica Sue FERGUSON. |
| Court | North Carolina Court of Appeals |
COPYRIGHT MATERIAL OMITTED
Appeal by Defendant from judgment entered 6 January 2009 by Judge L. Todd Burke in Guilford County Superior Court. Heard in the Court of Appeals 25 January 2010.
Roy Cooper, Attorney General, by Lars F. Nance, Special Deputy Attorney General, for the State.
Faith S. Bushnaq, Charlotte, for the Defendant.
Defendant Jessica Sue Ferguson appeals from a judgment entered based on her convictions for possession of marijuana with intent to sell or deliver; felonious possession of marijuana; possession of drug paraphernalia; and resisting, delaying, or obstructing a public officer. For the reasons discussed below, we vacate in part and remand for resentencing in part.
On 7 June 2007, Officer J.B. Smith of the University of North Carolina at Greensboro campus police arrested Defendant on charges of possession of marijuana with the intent to sell or deliver and resisting, delaying, and obstructing an officer. On 22 January 2008, Defendant was indicted for possession of marijuana with the intent to sell or deliver, felonious possession of marijuana, conspiracy to possess marijuana, possession of drug paraphernalia, and resisting, delaying, and obstructing an officer.
The charges against Defendant came on for trial before the trial court and a jury at the 5 January 2009 session of the Guilford County Superior Court. At trial, Officer Smith testified for the State that, on 7 June 2007, he was assigned to detect speeding motor vehicles using radar equipment. As Officer Smith and his partner operated a stationary radar instrument in the West Market Street area of Greensboro, he saw a Honda minivan traveling east on West Market Street at an estimated speed of 47 to 49 miles per hour in a 35 mile per hour zone. When he activated the blue light on his patrol vehicle, the minivan stopped and pulled to the right side of the road, paused briefly and then began to creep forward. Officer Smith and his partner exited their patrol car and walked towards the vehicle. As Officer Smith reached the back of the minivan, the driver looked out of the window and made a gesture suggesting that he was about to get out. After Officer Smith instructed the driver to remain in the minivan, the driver said “Okay, you want me to get back in the car,” then shut the door and drove off.
Officer Smith “ran and got back in the patrol car” and “began to go after the minivan.” The minivan turned onto “the first road on the right” and drove out of sight. When Officer Smith reached the next corner, he saw the minivan “sitting in the middle of the road” and three adults and a small child running towards a nearby driveway. Law enforcement officers stopped the three adults and placed them in custody, while Officer Smith returned to the minivan. Officer Smith noticed a “very strong odor” of marijuana emanating from the vehicle, which he testified “wasn't the smell of burnt marijuana,” but instead smelled like the “raw smell of unburnt marijuana.”
According to Officer Smith, Defendant was one of the three adults that fled from the minivan. The officers determined that the driver of the van, who was not one of the three adults taken into custody at the scene, was the child's father. The officers summoned a tracking dog, but were unable to locate the driver. The other two adults in the van were Mario Jerald and Jacob Stressman. Defendant told Officer Smith that Mr. Jerald was her boyfriend, that they lived at the same address, and that she was unemployed. Mr. Jerald, who was also unemployed, had $1,390 in cash and two cell phones. The third adult, Jacob Stressman, had a “marijuana container” on his keyring.
After the three adults were secured, the officers searched the minivan. Officer Smith testified that, “under the front passenger seat[,] [they] found a black plastic bag containing two bags of marijuana,” one of which weighed 28.5 grams and the other of which weighed 16.8 grams. In the glove compartment, the officers found a smaller bag containing 4.9 grams of marijuana. Officer Smith testified that, based on his training and experience, the fact that the marijuana was divided into three bags suggested that it was intended for sale. Officer Smith also testified that Defendant's pocketbook contained “a burnt marijuana cigarette weighing .24 grams,” a cell phone, and $200 in cash. Officer Smith testified that he “[didn't] recall” anything about “the way [Defendant] seemed or acted.”
On cross-examination, Officer Smith acknowledged that he did not know how long Defendant had been in the minivan before he stopped it and that the officers had lost sight of the vehicle during the chase. When Officer Smith first saw Defendant, she was running away from the minivan, so he did not see her getting in or out of the vehicle. Officer Smith told the jury that, “to the best of [his] knowledge,” Defendant had been a back seat passenger and that he understood that the driver jumped out and ran away while the vehicle was still running. Officer Smith agreed that the occupants of the van were “scared and confused” and had cooperated with the officers. He acknowledged that Defendant gave truthful answers to the officers' questions about her name and address. Officer Smith also conceded that Defendant was not the driver or owner of the minivan and that she had no connection to the driver's child. He testified that there was no DNA, fingerprint, or other physical evidence linking Defendant to the bags of marijuana found in the van, that he did not see who put the marijuana under the car seat, and that he had not seen Defendant making any suspicious gestures. On redirect examination, Officer Smith testified that he had no “opportunity to see anybody stashing anything under a seat or in the glove box.”
Officer Smith was the only witness for the State. At the close of the State's evidence, Defendant moved to dismiss the charges against her. Although the trial court dismissed the conspiracy to possess marijuana charge, it denied Defendant's motion with respect to the remaining charges. Defendant did not present any evidence. Following the arguments of counsel and the trial court's instructions, the jury returned verdicts convicting Defendant of possession of marijuana with intent to sell and deliver, felonious possession of marijuana, possession of drug paraphernalia, and resisting, delaying, and obstructing an officer.
At the sentencing hearing, the trial court determined that Defendant should be sentenced as a Level I offender, consolidated all of Defendant's convictions for judgment, sentenced Defendant to a minimum of six months and a maximum of eight months imprisonment in the custody of the North Carolina Department of Correction, suspended Defendant's sentence, and placed Defendant on supervised probation. From this judgment, Defendant noted a timely appeal to this Court.
First, Defendant argues that the trial court committed plain error by “allowing opinion testimony that the substance found in the [minivan] and [Defendant's] pocketbook was marijuana.” At trial, Officer Smith testified without objection that he searched the minivan and found (1) a bag under the front passenger seat that contained two bags of marijuana; (2) a smaller bag of marijuana in the glove compartment; and (3) a burnt marijuana cigarette in Defendant's pocketbook. On appeal, Defendant acknowledges that she did not object to Officer Smith's testimony that the items in question contained marijuana at trial and argues, for that reason, that the admission of this testimony constituted plain error. See N.C. R.App. P. 10(a)(1) (2009) (). We disagree.
In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.
N.C.R.App. P. 10(a)(4). Since Defendant has assigned as error and argued in her brief that the admission of Officer Smith's testimony identifying the substances found in the bags seized from the minivan and in the cigarette seized from Defendant's pocketbook as marijuana constituted plain error, the prerequisites for plain error review set out in N.C.R.App. P. 10(a)(4) have been met. As a result, the ultimate issue we must confront on appeal is whether admission of Officer Smith's testimony constituted plain error.
“The plain error rule ... is 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 where the error is such as to ‘seriously affect the fairness, integrity or public reputation of judicial proceedings....' ”
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.) cert. denied, 459 U.S. 1018, 103 S.Ct. 381, 74 L.Ed.2d 513 (1982)). Thus, we must decide whether the admission of the testimony in question constituted such a “fundamental error” as to “seriously affect the fairness, integrity, or public reputation” of the Defendant's trial.
In State v. Fletcher, 92 N.C.App. 50, 56, 373 S.E.2d 681, 685 (1988), this Court addressed the extent to which law enforcement officers were...
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