State v. Nabors (Lawyers Weekly No. 11-06-1251, 12 pp.) (Sarah Parker, Ch.J.) (Barbara Jackson, J., not participating) Appealed from Harnett County Superior Court. (W. Russell Duke Jr., J.) On discretionary review from the Court of Appeals. N.C. S. Ct. Click here for the full-text opinion.
Holding: Even if the trial court should not have admitted lay testimony that the substance purchased by an informant was cocaine, when the trial court ruled on defendant’s motion to dismiss, it could consider the testimony of defendant’s own witness that the substance was cocaine.
We reverse our Court of Appeals’ decision, which reversed the trial court’s denial of defendant’s motion to dismiss.
In deciding a defendant’s motion to dismiss a charge on the basis of insufficiency of the evidence, the defendant’s evidence, unless favorable to the state, is not to be taken into consideration. However, if the defendant’s evidence is consistent with the state’s evidence, then the defendant’s evidence may be used to explain or clarify that offered by the state.
In his briefs to the Court of Appeals and to this court, defendant challenged the sufficiency of the evidence as to whether the substance sold was in fact a controlled substance, an essential element of the drug offenses for which he was convicted. However, defendant did not raise this issue at trial. Rather his defense was that Quinton Smith, not defendant, orchestrated the drug transaction.
Defendant’s witness Smith testified that prosecution witness Christopher Gendreau had told him on the telephone that he wanted to buy “cocaine,” that Smith had brought “cocaine” with him to the gas station, and that what he sold to Gendreau was “cocaine.” The obvious import of this testimony was not to contest the illicit nature of the merchandise but to persuade the jury that Smith, rather than defendant, was guilty of the drug crimes.
Smith’s testimony thus provided substantial evidence that the substance defendant sold to Gendreau was cocaine. Moreover, Smith’s identification of the substance as cocaine was favorable to and did not conflict with evidence offered by the state; hence, the trial court could properly consider that testimony in ruling on defendant’s motion to dismiss. The trial court was not, however, required to consider Smith’s claim that the drugs and the transaction were his, as that evidence was not consistent with the state’s evidence.
While the state has the burden of proving every element of the charge beyond a reasonable doubt, when a defense witness’s testimony characterizes a putative controlled substance as a controlled substance, the defendant cannot on appeal escape the consequences of the testimony in arguing that his motion to dismiss should have been allowed.
The testimony of defendant’s witness, which identified as cocaine the items sold to the undercover operative, provided evidence of a controlled substance sufficient to withstand defendant’s motion to dismiss.
Assuming arguendo that it was error to admit lay testimony that the substance was crack cocaine, defendant cannot satisfy his burden of showing plain error inasmuch as his own evidence established that the substance sold was cocaine.