Criminal Practice – Maintaining a Dwelling – Possession and/or Sale – Jury Instructions – Marijuana Trafficking – Constitutional – Confrontation Right – Expert Witness – Sentencing – Mitigating Factors

State v. Garnett. (Lawyers Weekly No. 11-07-0153, 20 pp.) (Robert N. Hunter Jr., J.) Appealed from Buncombe County Superior Court. (Zoro J. Guice Jr., J.) N.C. App. Click here for the full text of the opinion.

Holding: Even though defendant was charged with maintaining a dwelling for keeping and selling a controlled substance, the trial court did not err when it instructed the jury that it could find defendant guilty if he maintained a dwelling for keeping or selling a controlled substance.

We find no prejudicial error in defendant’s convictions on multiple drug-related charges.

In State v. Lancaster, 137 N.C. App. 37, 527 S.E.2d 61, disc. review denied in part and remanded in part, 352 N.C. 680, 545 S.E.2d 723 (2000), the state utilized the conjunctive “and” in the indictment to charge the defendant with three theories of kidnapping – “confining, restraining and removing” the victim – while the jury instruction permitted a conviction if the jury found defendant confined, restrained or removed his victim.

The defendant in Lancaster also argued that by utilizing “and” to connect the three kidnapping theories in his indictment the state was required to prove the defendant used all three theories in commission of the crime. The Lancaster court rejected this argument, explaining that because an indictment for kidnapping need only allege one statutory theory for the commission of the crime, the fact that the indictment alleged additional theories was not error.

Rather, the indictment served to put the defendant on notice that the state intended to prove the defendant was guilty via one of the three theories. Therefore, the use of the disjunctive “or” in the jury instruction properly placed before the jury the three kidnapping theories alleged in the indictment and did not require the state to prove all three theories to support a conviction.

We cannot discern any material distinction between Lancaster and the present case. Defendant’s indictment charged that he maintained a dwelling house “for keeping and selling a controlled substance.”

Defendant contends he relied upon the language of the indictment to prepare his defense in which he conceded to maintaining his dwelling to possess marijuana, but he denied he did so for the purpose of selling the marijuana. The jury instruction, however, permitted a conviction if the state had proven Defendant maintained his dwelling to either keep or sell marijuana. Under Lancaster, the trial court did not err when instructing the jury.

We are bound by prior opinions of this court. Accordingly, we must conclude that Lancaster is controlling.

Confrontation Right

The trial court allowed the state’s expert witness to testify as to the identity and weight of the “leafy green plant substance” seized from defendant’s home and vehicle, despite the fact that he did not test the substance himself. Defendant’s constitutional right to confront witnesses against him was violated because the witness relied upon testing performed by someone else whom defendant had no chance to cross-examine.

The error was harmless, however. The state presented overwhelming evidence that the substance was actually marijuana, including defendant’s statements to the arresting officers and the expert witness’ in-court identification of the substance.

Sentencing

Under the Structured Sentencing Act, “The court shall make findings of the aggravating and mitigating factors present in the offense only if, in its discretion, it departs from the presumptive range of sentences. …” G.S. § 15A-1340.16(c). This is so even if the evidence of mitigating factors is uncontroverted.

Defendant offered uncontroverted evidence of mitigating factors to the court. It is clear that the trial court gave much consideration to this evidence during the sentencing hearing. That the trial court did not, however, find any mitigating factors and chose to sentence defendant in the presumptive range was squarely within its discretion.

No prejudicial error.