State v. Lemonds

• Decision Date: 02 September 2003
• Docket Number: No. COA02-900.,COA02-900.
• Citation: 584 S.E.2d 841,160 NC App. 172
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina, v. Larry Wheeler LEMONDS, Defendant.

584 S.E.2d 841

160 NC App. 172

STATE of North Carolina, v. Larry Wheeler LEMONDS, Defendant.

No. COA02-900.

Court of Appeals of North Carolina.

September 2, 2003.

Attorney General Roy Cooper, by Assistant Attorney General Philip A. Lehman, for the State.

Sallenger & Brown, L.L.P., by Thomas R. Sallenger, Wilson, for defendant appellant.

ELMORE, Judge.

Defendant was charged with one count of trafficking in marijuana by possession, one count of trafficking in marijuana by manufacture, and one count of maintaining a dwelling for keeping and selling controlled substances. The charge of maintaining a dwelling for keeping and selling controlled substances was dismissed. The State proceeded on the two trafficking charges.

At trial, the State's evidence tended to show that law enforcement officers from the Johnston County Sheriff's Department, the Raleigh Police Department, and the State Bureau of Investigation ("SBI") executed a search warrant at defendant's residence in Johnston County on 28 August 2000. Inside defendant's residence, the officers discovered an indoor marijuana-growing operation. The officers seized numerous items related to the marijuana-growing operation, including grow lights, ballasts, sections of pipe, a carbon dioxide tank, scales, charts and a notebook containing data related to the growing operation, and various magazines related to marijuana and marijuana growing. The officers also seized a large quantity of marijuana plants and marijuana plant material.

On 29 August 2000, the day after the execution of the search warrant, the material seized from defendant was analyzed and determined to be marijuana, weighing 51.8 pounds. The same marijuana plant material was resubmitted to the SBI for another weighing on 15 June 2001, at which time it was determined to weigh 37.7 pounds. Lieutenant Angela Bryan of the Johnston County Sheriff's Department testified that the difference between this weight and the initial, socalled "green weight," was the result of the plant material drying out over time.

At the request of defense counsel, the marijuana plant material was examined by a horticulturist on 15 November 2001. Under the supervision of law enforcement officers, the horticulturist separated out the stalks and other material that he believed did not meet the statutory definition of marijuana under N.C. Gen.Stat. § 90-87(16). The remaining marijuana plant material was weighed on 28 January 2002 at the SBI lab. This time the marijuana weighed 13.9 pounds.

Defendant was found guilty of trafficking in marijuana by possession and trafficking in marijuana by manufacture. The trial court imposed a $10,000.00 fine on defendant and sentenced him to twenty-five to thirty months imprisonment.

On appeal, defendant asserts: 1) that the trial court erred in denying defendant's motion to dismiss the charges of trafficking in marijuana by possession and trafficking in marijuana by manufacture; 2) that the trial court erred in instructing the jury with regards to the lesser included offense of manufacture of marijuana; and 3) that defendant was deprived of the effective assistance of counsel in violation of both the federal and state constitutions. We consider each argument in turn.

By his first two assignments of error, defendant asserts that the trial court erred in denying his motion to dismiss the charges of trafficking in marijuana by possession and trafficking in marijuana by manufacture. Defendant argues that the evidence regarding the element of weight, essential to both charges, was insufficient to support a conviction. We disagree.

When ruling on a motion to dismiss, "the trial court 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. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). To be substantial, the evidence need not be irrefutable or uncontroverted, but only adequate to permit a reasonable inference that the defendant is guilty of the offenses charged. Id. "[E]vidence is deemed less than substantial if it raises no more than mere suspicion or conjecture as to the defendant's guilt." State v. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 139-140 (2002).

In considering a motion to dismiss, the trial court must examine the evidence in the light most beneficial to the State and must give the State the benefit of all reasonable inferences that can be drawn from the evidence. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 256 (2002), cert denied, 537 U.S. 1006, 123 S.Ct. 488, 154 L.Ed.2d 404. "The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility." Id. If the evidence is sufficient "to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied." State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).

Trafficking in marijuana is defined by the North Carolina General Statutes as follows: "Any person who sells, manufactures, delivers, transports, or possesses in excess of 10 pounds (avoirdupois) of marijuana shall be guilty of a felony which felony shall be known as `trafficking in marijuana'...." N.C. Gen. Stat. § 90-95(h)(1)(2001). It is uncontested that defendant both possessed and grew marijuana. The only element of the trafficking charges disputed at trial was the weight of the marijuana seized from defendant's home.

Taken in the light most favorable to the State, the evidence tended to show that law enforcement officers seized thirty bags of marijuana plant material from defendant's residence. The marijuana was analyzed by SBI agents and weighed on three separate occasions. On each occasion, the weight of the marijuana exceeded ten pounds. We hold that this evidence was sufficient to permit a reasonable inference that the weight of the marijuana exceeded ten pounds. Therefore, defendant's motion to dismiss was properly denied.

By his next assignment of error, defendant contends that the trial court erred in instructing the jury with regards to the lesser included offense of manufacture of marijuana by failing to specify the quantity necessary to satisfy the requisite elements of that charge. Defendant argues that the trial court should have explained to the jury that it could find defendant guilty of manufacture of marijuana, as opposed to trafficking in marijuana by manufacture if it found that the amount of marijuana manufactured was less than ten pounds. We discern no error with respect to the trial judge's instructions to the jury.

Because defendant did not object to the instructions or request any corrections or additional instructions at trial, this Court may only review the trial judge's instructions for plain error. N.C.R.App. P. 10(b)(2); State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). The plain error rule applies only in exceptional cases "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'...." Odom, 307 N.C. at 660, 300 S.E.2d at 378 (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982), cert. denied, 459 U.S. 1018, 103 S.Ct. 381, 74 L.Ed.2d 513 (1982)).

In charging the jury with respect to the crime of trafficking in marijuana by manufacture, the trial court explained that the State was required to prove beyond a reasonable doubt that the defendant manufactured marijuana and that the amount of marijuana that defendant manufactured was greater than ten pounds and less than or equal to fifty pounds. The trial court also instructed the jury that, if it found defendant not guilty of trafficking in marijuana by manufacture, it must then consider whether defendant was guilty of manufacture of marijuana. The trial court explained that this lesser included offense only required the state to prove beyond a reasonable doubt that defendant manufactured marijuana. Defendant argues that this set of instructions was confusing and that the trial court should have more clearly distinguished the charges of trafficking in marijuana by manufacture and manufacture of marijuana by specifically informing the jury that it could find defendant guilty of manufacture of marijuana if it found that defendant grew less than or equal to ten pounds.

The amount of marijuana manufactured is not, however, an element of the lesser included offense of manufacture of marijuana as defined by N.C. Gen.Stat. § 90-95(a)(1). State v. Hyatt, 98 N.C.App. 214, 216, 390 S.E.2d 355, 357 (1990). If the defendant grows any amount of marijuana, he is guilty of manufacture of marijuana. See Id. The trial court's instructions regarding the lesser included offense, therefore, accurately reflected the law. The amount of marijuana grown was only a factor in determining whether defendant was guilty of trafficking in marijuana. Had the jury found defendant not guilty of the trafficking charge, the weight of the marijuana would no longer have been an issue. In addressing the lesser included offense of manufacture of marijuana, the jury would only need to determine whether defendant had in fact grown any marijuana. Thus, the trial court properly instructed the jury on both trafficking in marijuana and the lesser included...