State v. Sasek, 051920 NCCA, COA19-769

Docket Nº:COA19-769, COA19-770
Opinion Judge:INMAN, JUDGE.
Party Name:STATE OF NORTH CAROLINA v. SCOTT EDWARD SASEK, Defendant.
Attorney:Attorney General Joshua H. Stein, by Assistant Attorneys General Allison A. Angell and Barry H. Bloch, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Hannah H. Love, for Defendant.
Judge Panel:Chief Judge McGEE concurs. Judge BERGER BERGER, Judge,
Case Date:May 19, 2020
Court:Court of Appeals of North Carolina
 
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STATE OF NORTH CAROLINA

v.

SCOTT EDWARD SASEK, Defendant.

Nos. COA19-769, COA19-770

Court of Appeals of North Carolina

May 19, 2020

Heard in the Court of Appeals 31 March 2020.

Appeal by Defendant from judgments entered 22 March 2019 by Judge Gary M. Gavenus in Yancey County Superior Court. Yancey County, Nos. 16 CRS 50463-64, 17 CRS 50260, 18 CRS 000131-32

Attorney General Joshua H. Stein, by Assistant Attorneys General Allison A. Angell and Barry H. Bloch, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Hannah H. Love, for Defendant.

INMAN, JUDGE.

Scott Edward Sasek ("Defendant") appeals from the trial court's judgments convicting him of possession with intent to sell or deliver a schedule II controlled substance and sale of methamphetamine, and subsequently revoking his probation. Defendant contends that the trial court committed plain error by admitting expert testimony without first ensuring that it was achieved by reliable principles and methods. Defendant further contends that there was no justifiable reason for the trial court's delay in holding his probation revocation hearing. After careful review, we find no plain error in Defendant's convictions, but vacate the trial court's judgments revoking Defendant's probation.

I. Factual and Procedural Background

In July 2016, prior to the events of this case, Defendant pleaded guilty to charges of obtaining property by false pretenses. The court sentenced Defendant to 8 to 19 months imprisonment, suspended upon completion of 18 months of supervised probation to expire in January 2018.

On 15 February 2017, a confidential informant for the Yancey and Mitchell County Sheriff's Offices ("YMCSO") allegedly purchased methamphetamine from Defendant outside of a department store in Yancey County.

A. The Controlled Buy

The YMCSO had previously worked with the informant "25 or 50 times" since January 2017. On February 15, the informant informed an officer with YMCSO that he had a lead to buy methamphetamine from Defendant. The informant and the officer arranged for a controlled buy to occur later that day in a department store parking lot.

The informant met with Defendant in the parking lot and conducted the purchase with money provided by the YMCSO. After completing the transaction, the informant met with an officer and handed him a clear plastic baggie containing a clear crystal substance "that [he] got from [Defendant]." The officer searched the informant and discovered that he no longer had the money provided for the buy.

Probation violation reports were filed against Defendant on 17 May 2017 and 3 January 2018, each alleging that Defendant violated the terms of his probation by failing to "[c]ommit no criminal offense in any jurisdiction." Defendant was later indicted on 27 November 2017 and 29 May 2018 with a number of crimes related to the controlled buy of methamphetamine.

B. Expert Testimony at Trial

Defendant's charges came on for trial on 18 March 2019. At trial, Ms. Deborah Chancey of the North Carolina State Crime Lab presented testimony about her examination of the contents of the plastic baggie the informant received from Defendant. Chancey was admitted as an expert in drug chemistry without objection following a series of questions regarding her nearly ten years of experience as a Crime Lab employee. Chancey explained that the general procedure for testing unknown substances involves a series of preliminary tests to "indicate the class of drug that may be present," followed by confirmatory testing. Consistent results across multiple tests indicate the type of substance in the sample.

Chancey testified that, for this case, she was asked to test a plastic baggie containing 2.69 grams of a crystalline substance for the presence of a controlled substance. Chancey first conducted a preliminary color test, which produced "inconclusive" results. Chancey then performed an infrared test, which indicated the substance was primarily a diluent, "not a controlled substance." Next, Chancey performed a "gas chromatography mass spectrometer" test (the "GCMS test") on the substance. In a GCMS test, Chancey explained, the molecules in a substance are separated, timed as they pass through a gas column, and then bombarded into fragments by electrons. The examiner then performs a "visual comparison, a peak-to-peak analysis" of the sample's fragmentation patterns produced by the GCMS test versus a known standard pattern for a controlled substance.

Chancey then began to explain how she applied the GCMS testing methods on the sample in this case, and the result she obtained, but the State interrupted her testimony to inquire about the recognition of GCMS testing in the scientific community. Chancey testified that GCMS testing was well-respected in the scientific community and confirmed that she had recorded the results of her testing in this case in a lab report. The lab report was then admitted into evidence without objection. Following the admission of her lab report, Chancey testified without objection that it was her opinion that the substance the informant received from Defendant "was material containing methamphetamine, Schedule II."

At the close of the State's evidence, Defendant moved to dismiss all charges for insufficient evidence, and the trial court denied Defendant's motions. Defendant did not put on evidence.

C. Verdicts and Sentencing

The jury convicted Defendant of possession of methamphetamine, possession with intent to sell or deliver a schedule II controlled substance, sale of methamphetamine, and delivery of...

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