State v. Parker

• Decision Date: 18 May 2021
• Docket Number: No. COA20-291,COA20-291
• Citation: 860 S.E.2d 21
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Antwan Bernard PARKER, Defendant.

860 S.E.2d 21

STATE of North Carolina

v.Antwan Bernard PARKER, Defendant.

No. COA20-291

Court of Appeals of North Carolina.

Filed May 18, 2021

Attorney General Joshua H. Stein, by Assistant Attorney General James M. Wilson, for the State.

Sharon L. Smith, Raleigh, for the Defendant.

JACKSON, Judge.

¶ 1 The issues in this case are (1) whether the trial court properly denied Defendant Antwan Bernard Parker's ("Defendant") motion to suppress after determining that the search of his vehicle was supported by probable cause; and (2) whether the trial court properly instructed the jury regarding the nature of two controlled substances that Defendant was found to possess. Because we conclude that the trial court committed no error, we affirm the denial of the motion to suppress and discern no error in the judgment entered upon Defendant's convictions.

I. Factual and Procedural Background

¶ 2 On 15 January 2018, Officer Tony Peeler of the Kannapolis Police Department was running a seatbelt initiative on South Main Street when he noticed that the driver of a southbound Lincoln Town Car was not wearing a seatbelt. Upon pulling over the car, he observed Defendant in the driver's seat and passenger Billy Ray Neal in the front passenger seat. Officer Peeler asked for Defendant's license and registration, and while speaking with Defendant he began to notice the odor of burnt marijuana emanating from the vehicle. He also saw a large amount of cash scattered across Defendant's lap.

¶ 3 Based on the smell of marijuana, Officer Peeler returned to his patrol car to request backup to search the vehicle. Once two other officers had arrived, Officer Peeler re-approached the vehicle and told Defendant and Mr. Neal that he could smell the odor of marijuana coming from their car. Officer Peeler advised them that if they handed over everything they had, he would simply issue a citation for the possession of marijuana and Defendant and Mr. Neal would be released. In response, Mr. Neal admitted that he had "smoked a marijuana joint earlier" and pulled an object out of his sock, which Officer Peeler recognized to be a partially smoked marijuana cigarette.

¶ 4 Officer Peeler then asked Defendant and Mr. Neal to step out of the vehicle so he could perform a search, and they complied. The officers observed that Defendant appeared to be "fidgety" and "nervous" during the search. In the vehicle's center console, Officer Peeler found two black digital scales and a small round pill in a plastic bag. In a compartment on the driver's side door, Officer Peeler found an open pack of cigarillos containing a plastic bag with a green leafy substance that he believed to be marijuana. In a cup holder, Officer Peeler found a cloth containing two gray, rock-like substances that he believed to be narcotics. Officer Peeler subsequently placed Defendant under arrest. When asked about the substances, Defendant stated that he did now know what any of it was. Defendant was subsequently charged with two counts of felony possession of a Schedule I Controlled Substance.

¶ 5 Prior to trial, Defendant filed a motion to suppress the evidence gathered from the search of his vehicle, wherein he argued that Officer Peeler lacked probable cause to search the vehicle based solely on the smell of marijuana—arguing that the odor of burnt marijuana is indistinguishable from the odor of legal burnt hemp. A hearing was held on the motion to suppress on 25 September 2019 in Cabarrus County Superior Court.

¶ 6 At the suppression hearing, Defendant submitted to the court a memo published by the North Carolina State Bureau of Investigation ("SBI") discussing the similarities between marijuana and legal hemp. When cross-examined about the memo, Officer Peeler testified that he was aware that hemp had been recently legalized in North Carolina, but that he had not received any training on identifying hemp. Officer Peeler testified that he was not aware that the odor of burnt hemp was similar to the odor of burnt marijuana.

¶ 7 However, Officer Peeler also testified that based on his fourteen years of law enforcement experience—during which he had made approximately 50-60 marijuana-related arrests—he believed the odor which he smelled (and the substance handed to him by Mr. Neal) to be marijuana. The trial court ultimately denied Defendant's motion to suppress, determining that Officer Peeler "had reasonable suspicion ... to find that it was the odor of burned marijuana" based on his training and experience and based on Mr. Neal's admission that he had just smoked marijuana.

¶ 8 Following the suppression hearing, the Honorable Anna M. Wagoner presided over a one-day jury trial held on 7 October 2019 in Cabarrus County Superior Court. During trial, Adam Lewis of the SBI testified for the State as an expert in the forensic chemistry of controlled substances. Mr. Lewis identified the gray rock-like substance as 4.49 grams of Cyclopropylfentanyl—a fentanyl derivative compound. He stated that Cyclopropylfentanyl is a Schedule I controlled substance under Chapter 90 of the North Carolina General Statutes. Mr. Lewis identified the pill as N-ethylpentylone—a chemical compound similar to "bath salts," which is also included as a Schedule I controlled substance under Chapter 90.

¶ 9 During the charge conference, Defendant submitted written requests for two special jury instructions. The requested instructions read, in pertinent part, as follows:

Special Jury Instruction on Knowing Possession of Cyclopropyl Fentanyl

... For you to find the defendant guilty of this offense, the State must prove beyond a reasonable doubt that the defendant knowingly possessed Cyclopropyl Fentanyl and that the defendant knew that what he possessed was Cyclopropyl Fentanyl. Cyclopropyl Fentanyl may be, but you are not required to find that it is, a controlled substance.

Special Jury Instruction on Knowing Possession of N-Ethylpentylone

... For you to find the defendant guilty of this offense, the State must prove beyond a reasonable doubt that the defendant knowingly possessed N-Ethylpentylone and that the defendant knew that what he possessed was N-Ethylpentylone. N-Ethylpentylone may be, but you are not required to find that it is, a controlled substance.

¶ 10 The trial court declined to give either of Defendant's requested jury instructions, instead instructing the jury, in pertinent part, that:

The defendant has been charged with possessing cyclopropylfentanyl, a controlled substance. For you to find the defendant guilty of this offense, the State must prove, beyond a reasonable doubt, that the defendant knowingly possessed cyclopropylfentanyl and cyclopropylfentanyl is a controlled substance.

...

With regard to count two, the defendant has been charged with possessing N-ethylpentylone, a controlled substance. For you to find the defendant guilty of this offense, the State must prove, beyond a reasonable doubt, that the defendant knowingly possessed N-ethylpentylone. N-ethylpentylone is a controlled substance.

¶ 11 The jury ultimately found Defendant guilty of both counts of felony possession of a controlled substance, and Defendant also pleaded guilty to attaining habitual felon status. He was sentenced to a consolidated active sentence of 43 to 64 months. Defendant gave notice of appeal in open court on 8 October 2019.

II. Analysis

¶ 12 Defendant raises two primary arguments on appeal, asserting that the trial court erred by: (1) denying his motion to suppress the evidence gathered from the search of his car; and (2) denying his requested jury instructions regarding the substances found in his car. Because we believe that the trial court committed no error, we affirm the denial of the motion to suppress and discern no error in the judgment entered upon Defendant's convictions.

A. Denial of the Motion to Suppress

¶ 13 Defendant first challenges the trial court's denial of his motion to suppress evidence, arguing that the trial court erred by: (1) failing to memorialize its ruling in a written order; (2) failing to address the material issue of the indistinguishable scents of marijuana and legal hemp; (3) relying on Mr. Neal's statements to support its finding of probable cause; and (4) failing to show that probable cause existed particularized to Defendant, as opposed to Mr. Neal. In response, the State argues that Defendant has not adequately preserved the denial of the motion to suppress for our review, and that in any event the trial court's order contained no error because Officer Peeler possessed probable cause to search the vehicle. We affirm the trial court's order.

1. Preservation

¶ 14 The first issue before us is whether Defendant has adequately preserved for appellate review the issues raised in his motion to suppress—i.e., the admissibility of the evidence gathered during Officer Peeler's search of the vehicle. Defendant contends that because he raised an admissibility objection prior to Officer Peeler's testimony, this issue has been preserved, and we should review to determine whether the denial of the objection was reversible error. The State contends that because Defendant failed to renew his admissibility objection during Officer Peeler's trial testimony, plain error review should apply.

¶ 15 "To preserve an issue for appeal, the defendant must make an objection at the point during the trial when the State attempts to introduce the evidence. A defendant cannot rely on his pretrial motion to suppress to preserve an issue for appeal. His objection must be renewed at trial." State v. Golphin , 352 N.C. 364, 463, 533 S.E.2d 168, 232 (2000) (internal marks and citations omitted).

¶ 16 Here, defense counsel explained to the trial court prior to trial that she would have to object when the State introduced at trial evidence regarding the search. The court replied, "For the record that's fine." When Officer Peeler began to testify about the search of Defendant's car, defense counsel stated, "I'm going to object at this point,...