State v. Alderson

• Decision Date: 20 September 2005
• Docket Number: No. COA04-1178.,COA04-1178.
• Parties: STATE of North Carolina v. Tamberlyn Ward ALDERSON, Defendant.
• Court: North Carolina Supreme Court

618 S.E.2d 844

STATE of North Carolina v. Tamberlyn Ward ALDERSON, Defendant.

No. COA04-1178.

Court of Appeals of North Carolina.

September 20, 2005.

Appeal by defendant from a judgment entered 1 April 2004 by Judge Ronald K. Payne in Watauga County Superior Court. Heard in the Court of Appeals 17 May 2005.

Attorney General Roy Cooper, by Assistant Attorney General, Amanda P. Little, for the State.

Thomas K. Maher, Chapel Hill, for defendant-appellant.

BRYANT, Judge.

Tamberlyn Ward Alderson (defendant) appeals from a judgment entered 1 April 2004 after unanimous jury verdicts for: (1) possession with intent to manufacture, sell, and deliver 2.9 grams of methamphetamine within 300 feet of an elementary school; (2) manufacturing methamphetamine within 300 feet of an elementary school; (3) possession of methadone; (4) possession of hydrocodone; (5) possession of morphine; (6) possession of drug paraphernalia (glass smoking device); and (7) possession of amphetamine. Defendant was sentenced to consecutive active terms of imprisonment of twenty-nine to forty-four months on the convictions relating to methamphetamine and a suspended sentence on the remaining convictions.

At trial, the State's evidence showed on 27 January 2003, an officer from the State Bureau of Investigation (SBI) Agent Lisa Edwards, and Investigators Shane Robbins and Todd Phillips from the Watauga County Sheriff's Office executed a search warrant for defendant's residence and found: drug paraphernalia (glass smoking devices) containing methamphetamine; a college chemistry book; a bag containing 2.9 grams methamphetamine; various flasks, stir bars, a graduated cylinder, a box labeled "glassware" from "Lab and Safety Supply"; receipts from "Lab and Safety Supply" to defendant's attention indicating laboratory items had been ordered; a Coca-Cola tin containing marijuana, methadone, hydrocodone, and morphine; a Crown Royal bag¹ containing 3 straws with white powder residue; rolling papers; one tube of Orajel PM; one plastic bag containing more than 40 small plastic bags; hundreds of cut matchbook striker plates; a radio scanner; a glass spoon and mirror; a police frequency book which contained a list of local law enforcement channels; a list of all Watauga County Sheriff's Officers' names with officers' radio call numbers; internet articles concerning federal wiretap laws and federal legislation involving methamphetamine laboratory operations; and numerous other materials used in the production of methamphetamine. As part of the search, officers found in and around the outbuilding the following: tubing that had methamphetamine residue; acetone (a chemical precursor to the production of methamphetamine); PVC piping; 250 milliliter, 500 milliliter, and 1000 milliliter round bottom flasks; an empty forty-count box of cone coffee filters; and an unopened pack of disposable gloves, all which Agent Edwards testified were items consistent with the manufacture of methamphetamine. Agent Edwards also found clear plastic tubing with residue of methamphetamine and amphetamine, along with several pieces of PVC piping, that in her opinion was a hydrochloric acid generator. The State also presented evidence that a school was within 300 feet of defendant's residence.

Defendant's evidence at trial indicated: defendant's husband admitted he and defendant regularly used methamphetamine and that he had manufactured methamphetamine, but denied defendant helped him and denied manufacturing or selling methamphetamine at his home; defendant, however, admitted she assisted in the production of methamphetamine; defendant admitted retrieving internet articles concerning federal wiretap laws, federal legislation and federal punishment guidelines relating to methamphetamine labs to educate herself; defendant testified she purchased the radio scanner; and defendant admitted on the date of the search (27 January 2003) that she possessed 2.9 grams of methamphetamine and drug paraphernalia inside her residence. Defendant's husband testified his vehicle was an incomplete "mobile methamphetamine lab."

In rebuttal, the State's evidence indicated: defendant's husband testified on 30 March 2004, he plead guilty as part of a plea bargain to manufacture of a schedule II controlled substance (methamphetamine) within 300 feet of a school and possession with intent to manufacture, sell and deliver a schedule II controlled substance (methamphetamine) within 300 feet of a school along with other related charges. Notwithstanding his plea of guilty to manufacturing methamphetamine within 300 feet of a school, defendant's husband denied he had ever manufactured methamphetamine in his home.

Defendant appeals.

The issues on appeal are whether the trial court erred in: (I) denying defendant's motion to dismiss the charge of possession with intent to manufacture, sell and deliver methamphetamine; (II) not dismissing defendant's charge of manufacturing methamphetamine within 300 feet of a school; (III) admitting expert testimony that a radio scanner would be used for illegal activity; and (IV) not instructing the jury on lesser included offenses.

I

Defendant first argues the trial court erred in denying her motion to dismiss the charge of possession with intent to manufacture, sell and deliver methamphetamine.

In ruling on a motion to dismiss, the issue before the trial court is whether substantial evidence of each element of the offense charged has been presented, and that defendant was the perpetrator of the offense. State v. Mlo, 335 N.C. 353, 369, 440 S.E.2d 98, 105 (1994). Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987). The Court must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences that can be drawn from the evidence. State v. Rose, 335 N.C. 301, 439 S.E.2d 518 (1994), overruled on other grounds by State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001). Therefore, it does not matter whether the State's evidence is direct, circumstantial, or both; the test for resolving a challenge to the sufficiency of the evidence is the same regardless. Id.

Manufacturing is broadly defined by N.C. Gen.Stat. § 90-87(15) to include "the production, preparation, propagation, compounding, conversion, or processing of a controlled substance by any means, whether directly or indirectly, artificially or naturally, or by extraction from substances of a natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis [and] includes any packaging or repackaging of the substance or labeling or relabeling of its container." N.C.G.S. § 90-87(15) (2003). Intent to sell or deliver can be inferred by the amount of the controlled substance, the manner of its packaging, along with the activities of a defendant, but no one factor is determinative. See State v. Carr, 122 N.C.App. 369, 373, 470 S.E.2d 70, 73 (1996).

Defendant testified, at age forty-nine, she knew she was assisting her husband in the manufacture of methamphetamine by ordering chemistry ware for him. There was ample expert testimony that numerous items found within and just outside defendant's residence were consistent with the manufacture of methamphetamine. Defendant's husband testified a "cook" usually produced about ten to fifteen grams of methamphetamine. One of the single plastic bags found at defendant's residence contained 2.9 grams of methamphetamine which defendant claims was for personal use. However, the State presented expert testimony that indicated the items found were consistent with materials used in manufacturing methamphetamine and packaging controlled substances and that plastic bags such as those found at defendant's residence can be used to "package controlled substances . . . into smaller amounts for sale." Even if we consider defendant's testimony regarding the materials found at her residence, the trial court properly denied defendant's motion to dismiss. See State v. McCoy, 303 N.C. 1, 23-24, 277 S.E.2d 515, 531 (1981) (In ruling upon a motion to dismiss, "[d]efendant's evidence may be considered insofar as it merely explains or clarifies or is not inconsistent with the [S]tate's evidence."). When viewed in the light most favorable to the State, there was substantial evidence from which a jury could reasonably find that defendant possessed methamphetamine with intent to manufacture sell and deliver. This assignment of error is overruled.

II

Defendant next argues the trial court erred in not dismissing defendant's charge of manufacturing methamphetamine within 300 feet of a school. More particularly, defendant challenges the sufficiency of the evidence to show any manufacturing that occurred was within 300 feet of a school.

Manufacturing methamphetamine within 300 feet of an elementary school, requires that a person who is "21 years old or older, knowingly, manufacture, methamphetamine, on property . . . within 300 feet of the boundary of real property used for an elementary school or secondary school." N.C. Gen.Stat. § 90-95(e)(8) (2003). It is not in dispute that defendant is over twenty-one years of age, the controlled substance is methamphetamine, and that defendant's residence is within 300 feet of an elementary school. Defendant argues there was not sufficient evidence of manufacturing at the residence where there was testimony and physical evidence that manufacturing occurred in places other than the residence.

Expert testimony by Agent Edwards and Investigators Robbins and Phillips showed the following items consistent with manufacturing methamphetamine were found at defendant's residence: several variations of glassware seen generally only in laboratory settings, such as flasks, a graduated cylinder, stir bars, small vials; hundreds of cut...