State v. Glisson

• Citation: 796 S.E.2d 124,251 N.C.App. 844
• Decision Date: 07 February 2017
• Docket Number: No. COA16-426,COA16-426
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina, v. Deborah Lynn GLISSON, Defendant.

251 N.C.App. 844

796 S.E.2d 124

STATE of North Carolina,

v.Deborah Lynn GLISSON, Defendant.

No. COA16-426

Court of Appeals of North Carolina.

Filed: February 7, 2017

Attorney General Joshua H. Stein, by Assistant Attorney General David D. Lennon, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katherine Jane Allen, for Defendant-Appellant.

INMAN, Judge.

Deborah Lynn Glisson ("Defendant") appeals from a judgment finding her guilty of, inter alia , felonious conspiracy to traffic opium by sale and delivery and possession of oxycodone with intent to sell and deliver. Defendant contends the trial court erred by denying her motion to dismiss the conspiracy charge related to the controlled buy on 13 September 2012 for insufficiency of the evidence. After careful review, we hold that Defendant has failed to demonstrate error.

I. Factual and Procedural History

Defendant was indicted on 5 August 2013, 28 April 2014, and 4 August 2014 for eighteen drug-related offenses arising from three separate controlled buys arranged by the Jones County Sheriff's Office between August and December 2012. The evidence at trial tended to show the following:

On or about August 2012, an informant with the Jones County Sheriff's Office contacted Detective Timothy Corey ("Detective Corey") and informed him that a couple, believed to be husband and wife, were selling oxycodone. At Detective Corey's direction, the informant arranged for a controlled buy from Defendant.

On 16 August 2012, Detective Corey and the informant met Defendant, who was accompanied by James Adkins ("Adkins"), in a parking lot in Pottersville, North Carolina. Defendant and Adkins arrived in a Ford Focus, which Defendant was driving. Defendant exited the Ford and walked over to the informant's vehicle to talk with him. The informant introduced Detective Corey as a family member from out of town who wanted to buy oxycodone. After a short conversation, Detective Corey requested oxycodone and paid Defendant $140. Defendant then turned to the passenger side front seat of the Ford and spoke with Adkins, who produced a pill bottle. Defendant counted out a number of pills and gave them to Detective Corey. The pills were later confirmed to be oxycodone

.

Detective Corey and the informant then arranged for a second controlled buy from Defendant. On or about 13 September 2012,¹ Detective Corey met the informant in an unfinished subdivision, and shortly thereafter, at dusk, Defendant and Adkins arrived in the same Ford Focus Defendant had driven to the initial controlled buy. Defendant told Detective Corey that she did not like the meeting location "because it's a subdivision that, you know, she don't know where anybody is coming from." Defendant gave Detective Corey twenty oxycodone pills in exchange for $80.

Detective Corey set up a third controlled buy to take place on 7 December 2012 in the same unfinished subdivision as the second controlled buy. Defendant told Detective Corey that she had to pick up Adkins before the meeting. Detective Corey met Defendant and Adkins and paid Defendant $200. Adkins then handed Detective Corey thirty-four oxycodone pills. Defendant was arrested immediately after delivering the pills to Detective Corey.

At the close of the State's evidence, Defendant made an oral motion to dismiss on all charges. Defendant's trial counsel argued that the State's evidence and testing methods were insufficient to satisfy the minimum weight requirement element for the charge of trafficking opium. The trial court dismissed one trafficking in opium by possession charge and reduced the other two charges from trafficking in opium to sale and delivery of opium. Defendant chose not to testify and presented no evidence. Her counsel renewed her general motion to dismiss all remaining charges based on the insufficiency of the evidence. The trial court denied the motion to dismiss. Following a meeting with counsel in chambers, the trial court dismissed the trafficking allegations in the conspiracy charges, reducing those charges to conspiracy to sell opium, conspiracy to deliver opium, and conspiracy to possess with intent to sell or deliver opium. The trial court reviewed the jury instructions with Defendant's trial counsel, who agreed with the proposed instructions regarding each conspiracy charge.

The jury returned a guilty verdict on all remaining charges, except that the jury found the lesser included offense of knowingly (rather than intentionally) maintaining a motor vehicle to possess and sell oxycodone on the dates of all three transactions. Defendant gave oral notice of appeal.

II. Analysis

On appeal, Defendant challenges the sufficiency of the evidence for the charge of felonious conspiracy to traffic opium by sale and delivery and possession of oxycodone with intent to sell and deliver related to the events of the second controlled buy on 13 September 2012. Defendant contends the State failed to present evidence, aside from Adkins's mere presence at the transaction on 13 September 2012, that Defendant conspired with Adkins to traffic opium on that date.

A. Appellate Jurisdiction

The State first contends that Defendant failed to preserve this issue for appeal because her counsel argued before the trial court only that the State had presented insufficient evidence of the weight of the pills involved in each transaction. We disagree, based upon the record before us and our precedent holding that a general motion to dismiss for insufficiency of the evidence preserves all issues regarding the insufficiency of the evidence, even those issues not specifically argued before the trial court. State v. Pender , ––– N.C.App. ––––, ––––, 776 S.E.2d 352, 360 (2015) (holding that although trial counsel presented a specific argument addressing only two elements of two charges, the defendant's general motion to dismiss "preserved his insufficient evidence arguments with respect to all of his convictions,"); State v. Mueller , 184 N.C.App. 553, 559, 647 S.E.2d 440, 446 (2007) (holding that although trial counsel presented a specific argument addressing only five charges, the defendant's general motion to dismiss preserved arguments regarding fourteen charges on appeal).

Defendant's motion to dismiss required the trial court to consider whether the evidence was sufficient to support each element of each charged offense. State v. Nabors , 365 N.C. 306, 312, 718 S.E.2d 623, 626 (2011). The trial court acknowledged Defendant's contention that the State "simply failed to offer sufficient evidence on each and every count as to justify these cases to survive a motion to dismiss." The trial court referred to the motion as "global" and "prophylactic," acknowledging on the record that Defendant's motion was broader than the single oral argument presented. In ruling on the motion to dismiss, the trial court stated that "the State has offered sufficient evidence on each and every element of all the surviving charges to justify these cases being advanced to the jury." Counsel's oral argument challenging a single aspect of the evidence does not preclude Defendant from arguing other insufficiencies in the evidence on appeal. So we will address the merits of Defendant's argument challenging the sufficiency of the evidence to support the conspiracy charge.

B. Standard of Review

A trial court, on a motion to dismiss for insufficient evidence, "must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Olson , 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992) (citation omitted). "Whether evidence presented constitutes substantial evidence is a question of law for the court" and is reviewed de novo . State v. Vause , 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991) (citation omitted). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Olson , 330 N.C. at 564, 411 S.E.2d at 595 (citation omitted). In reviewing the denial of a motion to dismiss for insufficiency of the evidence, "we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences." State v. Benson , 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992) (citation omitted). "Any contradictions or discrepancies in the evidence are for the jury to resolve and do not warrant dismissal." Olson , 330 N.C. at 564, 411 S.E.2d at 595 (citation omitted).

C. Sufficiency of the Evidence

"A criminal conspiracy is an agreement between two or more people to do an unlawful act or to do a lawful act in an unlawful way." State v. Bell , 311 N.C. 131, 141, 316 S.E.2d 611, 617 (1984) (citation omitted). To prove the crime of conspiracy, "the State need not prove an express agreement;" rather, "evidence tending to show a mutual, implied understanding will suffice." State v. Morgan , 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991) (citation omitted). "The existence of a conspiracy may be established by direct or circumstantial evidence, although it is generally established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point...