State v. Rider
| Decision Date | 05 July 2011 |
| Docket Number | NO. COA10-558,COA10-558 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. KATHY KAYE RIDER |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Buncombe County File No. 08 CRS 60880
Appeal by defendant from judgments entered 30 October 2009 by Judge Alan Z. Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 1 November 2010.
Attorney General Roy Cooper, by Assistant Attorney General Barry H. Bloch, for the State.
William L. Gardo II, for Defendant-Appellant.
Defendant Kathy Kaye Rider appeals from judgments entered 30 October 2009 based upon her convictions for conspiring to traffic in opium by sale, attempting to traffic in opium by sale, possession of alprazolam with the intent to sell and deliver, sale of alprazolam, possession of oxycodone with the intent to sell and deliver, sale of oxycodone, aiding and abetting trafficking in opium by possession, and aiding and abetting trafficking in opium by sale. After carefulconsideration of Defendant's challenges to the trial court's judgments in light of the record and the applicable law, we conclude that (1) Defendant is entitled to a new trial in connection with her convictions for attempting to traffic in opium, selling alprazolam, selling oxycodone, possession of alprazolam with the intent to sell and deliver, and possession of oxycodone with the intent to sell and deliver; (2) Defendant's convictions for conspiracy to traffic in opium by sale, aiding and abetting trafficking in opium by possession, and aiding and abetting trafficking in opium by sale should remain undisturbed; and (3) Defendant should be resentenced in the cases in which we have concluded that her convictions should remain undisturbed.
In August 2008, Special Agent James Schandevel of the State Bureau of Investigation received information indicating that Defendant was selling prescription medications. According to information developed during the ensuing investigation, Defendant was being prescribed various controlled substances, including hydrocodone, OxyContin, Ambien, Lunesta, and alprazolam, and was selling OxyContin and hydrocodone. Special Agent Schandeval passed this information along to Agent Tamara Styles of the Buncombe CountyAnti-Crime Task Force, which serves as the narcotics unit of the Buncombe County Sheriff's Department. On 22 August 2008, Special Agent Schandevel met with Agent Styles, Agent Matt Kiser of the Buncombe County Anti-Crime Task Force, a confidential informant, and other law enforcement officers. As a result of the plan developed at that meeting, Agent Styles asked Agent Kiser to purchase prescription medications from Defendant while working in an undercover capacity.
Subsequently, the confidential informant contacted Defendant and told her that an individual, who was actually Agent Kiser, wanted to make a purchase from her. Agent Kiser and the confidential informant went to Defendant's residence, where Agent Kiser introduced himself as "Darren Matthews," on 27 August 2008. Prior to visiting Defendant's residence, Agent Kiser had been given $1,000.00 and directed to purchase 100 Oxycontin tablets from Defendant. Although Defendant claimed on several occasions during this visit that the confidential informant owed her money, Agent Kiser stated that the confidential informant's indebtedness to Defendant did not concern him. During the visit, Defendant agreed to sell Agent Kiser 100 Oxycontin pills for $900.00. In addition, Defendant gave the confidential informant a Xanax pill. After exchanging $900.00 for an unlabeled prescription bottle, Agent Kiser left Defendant's residence. Agent Kiser turned over the pills thathe purchased from Defendant on 27 August 2008 to Agent Styles, who submitted them to the State Bureau of Investigation for analysis. Subsequently, Agent Kiser "discovered that [some of] the OxyContins were fake." When Agent Kiser called Defendant to complain, she attributed the problem to a "pharmacy error" and agreed to make it up to him at the time of his next purchase.
On 5 September 2008, Agent Kiser telephoned Defendant and arranged to make another drug purchase from her. More particularly, Agent Kiser agreed to purchase 120 hydrocodone tablets from Defendant on that date for $1,000.00. Although Defendant reiterated her complaint that the confidential informant owed her money, Agent Kiser disclaimed any intention of becoming involved in that dispute. According to the plan that Defendant and Agent Kiser developed during this conversation, Elizabeth Rider, Defendant's sister, would pick up Defendant's prescription medications and immediately sell them to Agent Kiser. Agent Kiser was provided with money to purchase the pills and equipped with a listening device, which enabled nearby officers to hear his conversations.
After Agent Kiser made these arrangements with Defendant, investigating officers followed Elizabeth Rider from a Kmart pharmacy in Asheville to a prearranged meeting spot, where they observed Agent Kiser enter Elizabeth Rider's car and heard him discuss the drug sale with her. At that time, Agent Kiser paidElizabeth Rider $1,000.00 in exchange for 120 pills. The pills that Elizabeth Rider sold Agent Kiser "were wrapped in a cellophane-type baggie and placed into a pill bottle where the label of the patient name was ripped off so that the patient cannot be identified by looking at the bottle." After this exchange and in response to a signal given by Agent Kiser, the investigating officers immediately arrested Elizabeth Rider and seized a cigarette case and various unlabeled prescription bottles from her car.
On the same date, investigating officers arrested Defendant. After her arrest, Defendant told Agent Styles "that she had gotten in a financial bind and that she had only sold drugs a couple times because of the financial bind that she had gotten in." According to Defendant, her financial difficulties stemmed from the fact that a man named Thomas Whitmore had given her a worthless check.
Special Agent Elizabeth Reagan of the State Bureau of Investigation, testifying as an expert in forensic chemistry, examined two clear plastic bags and a pill bottle, each of which contained various medications, pursuant to a request from Agent Styles. The documentation accompanying this evidence indicated that the bottle contained 99 pills and had been taken "from [Defendant's] hand." Agent Reagan "performed an identification based on the tablet markings and the physical characteristics" ofone tablet marked with G3722 and twenty-six tablets marked OC/10. On the basis of her visual examination of these tablets, Agent Reagan testified that (1) the pill marked G3722 weighed .2 grams and was alprazolam, a Schedule IV controlled substance marketed as Xanax, and that (2) the twenty-six pills marked OC/10 weighed 3.4 grams and were oxycodone, a Schedule II controlled substance and opium derivative marketed as OxyContin. On cross-examination, Agent Reagan testified that none of the pills contained in State's Exhibit No. 2 were dihydrocodeinone.
Former Special Agent Jay Pintacuda of the State Bureau of Investigation, who also testified as an expert in forensic chemistry, examined a collection of evidence consisting of: (1) a plastic bag containing three pills marked M367, allegedly taken from a cigarette case, and two marked G3722; (2) a plastic bag containing 120 pills marked M367 allegedly taken from a bottle received by an undercover officer; and (3) a plastic bottle containing 117 pills marked M367, 118 pills marked G3722, and thirty other capsules at the request of Agent Styles. Special Agent Pintacuda testified that:
[o]nce I opened [this first item] up I looked at the tablets. In this particular case the items were examined microscopically, with a microscope. I looked for markings to aid in the identification. I recorded those markings on each of the tablets, two different types. I also determined the weight of the tablets, and then I was able to do a search, a computer search for the identification of these tablets afterlooking at the consistency of the tablets, whether they were uniform in size, shape and the markings were a legitimate marking based on my training and experience. And also I was able to identify these tablets by a visual examination technique.
Based upon this visual examination, Special Agent Pintacuda concluded that three of the tablets contained in Item 1 were "hydrocodeinone or dihydrocodeinone, a Schedule III preparation," and that the other two tablets were alprazolam. With respect to the contents of the second item that he examined, Special Agent Pintacuda testified that:
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