No. COA07-159 DISTRICT TWENTY-SEVEN A

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA ) )

v. ) From Gaston )

JOHNNIE HAL MONCREE, JR. )

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DEFENDANT-APPELLANT’S BRIEF

****************************************************QUESTIONS PRESENTED

I. WHETHER THE TRIAL COURT ERRED BY RULING THAT THE STATE DID NOT COMMIT A DISCOVERY VIOLATION AND ADMITTING EXPERT TESTIMONY WHEN, AS IN STATE V. BLANKENSHIP, THE STATE FAILED TO COMPLY WITH STATUTORY NOTICE REQUIREMENTS IN VIOLATION OF MR. MONCREE’S RIGHTS UNDER N.C. GEN. STAT. §§ 15A-902 AND 15A-903?

II. WHETHER THE TRIAL COURT ERRED BY DENYING MR. MONCREE’S MOTIONS TO DISMISS THE CHARGE OF POSSESSION OF MARIJUANA ON THE PREMISES OF A LOCAL CONFINEMENT FACILITY, AS THE STATE FAILED TO ESTABLISH THAT MR. MONCREE WAS IN A SECURED AREA ACCESSIBLE ONLY TO OFFICERS AND THEIR DETAINEES AND THUS, ON THE PREMISES OF A LOCAL CONFINEMENT FACILITY?

III. WHETHER THE TRIAL COURT ERRED BY DENYING MR. MONCREE’S MOTIONS TO DISMISS AND ENTERING JUDGMENT AGAINST HIM IN 05 CRS 20127 AND 05 CRS 20128 FOR TWO COUNTS OF POSSESSION OF MARIJUANA, AS THE STATE’S

EVIDENCE DEMONSTRATED THAT BOTH COUNTS AROSE FROM A SINGLE CONTINUOUS ACT OF POSSESSION?

IV. WHETHER THE TRIAL COURT ERRED BY DENYING MR. MONCREE’S MOTIONS TO DISMISS AND ENTERING JUDGMENT AGAINST HIM FOR THREE COUNTS OF POSSESSION OF MARIJUANA, AS THE STATE’S EVIDENCE ESTABLISHED THAT ALL THREE COUNTS AROSE FROM A SINGLE ACT OF POSSESSION?

V. WHETHER THE TRIAL ERRED BY ACCEPTING MR. MONCREE’S PLEA TO HABITUAL FELON STATUS AND ENTERING JUDGMENT AGAINST HIM, AS THE HABITUAL FELON INDICTMENT FAILED TO ALLEGE THREE PREDICATE FELONY OFFENSES?

STATEMENT OF THE CASE

On September 12, 2006, this case came on to be tried in Gaston County

Superior Court, before the Honorable James Hardin, on indictments alleging the

following: one count of maintaining a vehicle used to keep or sell a controlled

substance, two counts of possession of up to one-half ounce of marijuana, one

count of possession of drug paraphernalia, one count of possession with intent to

manufacture, sell, or deliver cocaine, one count of delivering cocaine, one count of

felony conspiracy to possess with intent to sell or deliver cocaine, one count of

possession of marijuana on the premises of a local confinement facility, and

habitual felon status. (Rpp. 2-9) 1

On September 13, 2006, a jury found Mr. Moncree guilty of the following:

two counts of possession of up to one-half ounce of marijuana, one count of

1 References to pages in the Record on Appeal will be cited as “Rp.” or “Rpp.” References to pages in the trial transcript will be cited as “Tp.” or “Tpp.”

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possession of drug paraphernalia, and one count of possession of marijuana on the

premises of a local confinement facility. The jury acquitted Mr. Moncree of all

remaining charges. (Rpp. 29-36)

Pursuant to a plea agreement, Mr. Moncree pled guilty to habitual felon

status. (Rpp. 37-40) In accordance with the agreement, Judge Hardin consolidated

the offenses for judgment. (Rpp. 45-46) After finding four mitigating factors and

no aggravating factors, Judge Hardin sentenced Mr. Moncree to a mitigated term

of 70 to 93 months imprisonment. (Rpp. 43-46) On September 22, 2006, Mr.

Moncree gave notice of appeal. (Rpp. 47-48)

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

Mr. Moncree appeals pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-

1444(a) from final judgments entered against him in Gaston

County Superior Court.

STATEMENT OF THE FACTS

On August 13, 2004, Johnnie Moncree was taking a drive in his truck.

(Tpp. 64, 87) Tisha Mote was riding in the front passenger seat. (Tp. 87) The

State’s evidence tended to show that just before one o’clock in the morning,

Officer Brent Roberts of the Gaston County Police Department observed Mr.

Moncree driving down Saint Marks Church Road. (Tp. 62) He noticed that Mr.

Moncree’s truck had a broken taillight. (Tp. 63)

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The Traffic Stop

Roberts pulled Mr. Moncree over. (Tp. 63) As he approached the truck, he

“noticed that Mr. Moncree’s arm went up over towards Tisha Mote . . . and

appeared to hand something to [her].” Then, he saw “Ms. Mote fumbling around

her waistband.” (Tp. 63)

Once Roberts got to the vehicle, he asked to see Mr. Moncree’s driver’s

license. While Mr. Moncree was retrieving his license, Roberts “noticed a strong

odor of marijuana” coming from inside the truck. (Tp. 64) Roberts ordered Mr.

Moncree out of the vehicle and searched him. (Tpp. 65, 66)

Then, Mr. Moncree consented to a search of his truck. (Tp. 66) Before

searching the vehicle, Roberts got Mote out of the front passenger seat.

(Tpp. 66, 90) As Mote was getting out, Roberts noticed a joint and a “chunk of

marijuana” in the front passenger seat where Mote had been seated. (Tp. 66)

Roberts, the only officer on the scene, wanted to ensure his own safety while he

searched the vehicle, so he handcuffed Mr. Moncree and Ms. Mote and put them in

the back of his patrol car. (Tp. 66) He also called for backup. (Tpp. 66-67)

Roberts’ search of the vehicle revealed an open beer can and some cigars.

(Tpp. 67, 68) During this time, Officer J.T. Avery arrived to serve as backup.

(Tp. 107) When Roberts finished the search, he walked back to his patrol car and

issued Mr. Moncree and Ms. Mote citations for possession of up to one-half ounce

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of marijuana and possession of drug paraphernalia. (Tp. 68) After Roberts

removed the handcuffs, he let both of them go. (Tpp. 68, 108)

As Mr. Moncree and Ms. Mote were walking back to the truck, Roberts

performed a routine check of the backseat of his patrol car. (Tpp. 69-70, 108) He

lifted up the backseat and found a “large bag of an off white substance” which he

thought could be cocaine or methamphetamines. (Tp. 70) Mote had stuffed the

bag under the seat when Roberts was searching Mr. Moncree’s truck.

(Tpp. 93, 111) Mr. Moncree and Ms. Mote were just about to get back into the

truck to leave when Roberts and Avery yelled at both of them to stop. The officers

placed them under arrest. The officers handcuffed them and took them to the

Gaston County Sheriff’s Department. Avery transported Mote, and Roberts took

Mr. Moncree. (Tpp. 70, 109)

The Sequence of Events at the Sheriff’s Department

At the Sheriff’s Department, Roberts took Mr. Moncree to booking and

processing. (Tpp. 117-18) Deputy Kevin Lail directed Mr. Moncree to “step up to

the counter” and “empty out [his] pockets.” Then, Lail conducted a “thorough

search” of Mr. Moncree. He instructed him to “sit on the bench” and take off his

shoes and socks. (Tp. 118) As Mr. Moncree was removing his shoes, Lail noticed

a leafy substance in Mr. Moncree’s left shoe. (Tp. 119) The substance did not

have an odor, but Lail thought it was marijuana. (Tpp. 120, 122) Lail did not

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know the active ingredient in marijuana. (Tp. 122) Lail showed the substance to

Roberts who directed Lail to charge Mr. Moncree with misdemeanor possession of

marijuana and with felony possession of marijuana on the premises of a local

confinement facility. (Tpp. 76, 120)

Roberts performed a marquis regent field test on the white substance that he

discovered in the back of his patrol car. He thought that the substance was

methamphetamines, so he tested it as such, and the resulting dark purple color was

close to the shade on the test kit’s color guide indicating methamphetamines.

(Tp. 75)

Roberts eventually sent the following evidence to the SBI for chemical

analysis: (1) the white substance he found in the back of his patrol car (Tp. 75) and

(2) the other substance he discovered in the front passenger seat of Mr. Moncree’s

truck. (Tp. 77)

Lail weighed the evidence from Mr. Moncree’s shoe and determined it to

weigh about twenty grams. (Tp. 121) Then, he placed it in the evidence locker at

the sheriff’s office. (Tpp. 43, 120) The material discovered in Mr. Moncree’s

shoe was never sent to the SBI for testing or subjected to any chemical analysis.

(Tpp. 39-40, 43, 120-21)

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The State’s Evidence at Trial as to the Identity of Substances Discovered

Prior to trial, the State provided Mr. Moncree with two sets of discovery.

Each set included a Discovery Disclosure Certificate indicating that the State

provided discovery to Mr. Moncree by sending him copies of the State’s

investigative reports, evidence examination reports, and his criminal history.

(Tpp. 52, 53, 54) In its plea offer, the State notified Mr. Moncree that it intended

to introduce any SBI lab reports prepared in the case. (Tp. 55) SBI chemist Misty

Icard tested the evidence that Roberts sent to the SBI. The State provided Mr.

Moncree with copies of Icard’s reports. (Tpp. 24, 55)

At trial, SBI Agent Jay Pintacuda testified for the State as an expert witness

in the field of forensic chemistry specializing in the analysis of controlled

substances. (Tp. 22) Based on Icard’s analysis and conclusions, Pintacuda

testified to the following: (1) State’s Exhibit Number 3, the evidence seized from

the front passenger seat of Mr. Moncree’s truck, was 1.7 grams of marijuana

(Tp. 26) and (2) State’s Exhibit Number 4, the white substance Roberts discovered

in the back of his patrol car, was 11.8 grams of cocaine. (Tpp. 27-28)

During its examination of Pintacuda, the State introduced the evidence from

Mr. Moncree’s left shoe as State’s Exhibit Number 6. (Tp. 31) The substance was

never sent to the lab, so no test results existed regarding its chemical makeup.

(Tpp. 38, 39-40, 43, 120-21) The State wanted Pintacuda to testify that the

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substance was marijuana. (Tpp. 32, 34, 39, 59) Before the State could elicit this

testimony from Pintacuda, defense counsel objected. (Tpp. 31, 57) The trial court

ordered the jury to leave the courtroom and conducted a voir dire hearing. (Tp. 31)

Defense counsel moved to suppress Pintacuda’s testimony on the ground

that the State had failed to notify Mr. Moncree, as required by

N.C. Gen. Stat. § 15A-903(a)(2), that it would offer expert witness Pintacuda’s

opinion as to the identity of the substance found in Mr. Moncree’s shoe.

(Tpp. 33-34) Defense counsel was surprised by the State’s intention to offer expert

testimony as to the identity of that evidence. (Tp. 40) The evidence from the shoe

was never subjected to any type of chemical analysis, and the complete absence of

any test results identifying the nature of the substance was an integral part of his

defense to the felony possession charge. (Tpp. 50-51)

The State contended that because the evidence from the shoe was never

tested, Pintacuda’s opinion regarding its identification did not constitute expert

testimony. (Tpp. 39, 40) The State argued that Pintacuda would only be testifying

as a lay witness because he would only be “giving his opinion based upon his

training and experience . . . .” (Tp. 34) The State contended that the notice

requirements in § 15A-903(a)(2) did not apply. (Tp. 50)

The trial court ruled that the State had not committed any discovery

violation because Pintacuda would not be testifying as an expert. (Tp. 57)

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Instead, the court found that as to the identification of the evidence from the shoe,

Pintacuda would be testifying as a lay witness. (Tp. 57) The trial court overruled

Mr. Moncree’s objections to the admission of and denied his motion to suppress

Pintacuda’s testimony concerning the identity of the evidence discovered in Mr.

Moncree’s shoe. (Tp. 57)

When the jury returned to the courtroom, the State continued its direct

examination of Pintacuda. (Tp. 58) Pintacuda testified that he had never seen

State’s Exhibit Number 6 prior to trial or subjected it to any chemical analysis. He

testified that in his opinion the substance was marijuana. (Tpp. 58-59, 61)

ARGUMENT

I. THE TRIAL COURT ERRED BY RULING THAT THE STATE DID NOT COMMIT A DISCOVERY VIOLATION AND ADMITTING EXPERT TESTIMONY WHEN, AS IN STATE V. BLANKENSHIP, THE STATE FAILED TO COMPLY WITH STATUTORY NOTICE REQUIREMENTS IN VIOLATION OF MR. MONCREE’S RIGHTS UNDER N.C. GEN. STAT. §§ 15A-902 AND 15A-903.

Assignments of Error Nos. 1 and 2, Rp. 54

Standard of Review

Review of the trial court’s interpretation of N.C. Gen. Stat. § 15A-903(a)(2) in

determining whether a party has committed a discovery violation presents a

question of law, subject to de novo review by this Court. State v. Patterson, 335

N.C. 437, 454-55, 439 S.E.2d 578, 588-89 (1994).

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Discussion

The State failed to notify Mr. Moncree, as required by § 15A-903(a)(2),

that it would offer expert witness Pintacuda’s opinion as to the identity of the

evidence found in Mr. Moncree’s shoe. Therefore, the trial court erred in

concluding that the State did not commit a discovery violation and by admitting

Pintacuda’s expert testimony.

Sections 15A-902 and 15A-903 govern the discovery process in criminal

cases. Specifically, §§ 15A-903(a)(2) and 15A-903(b) require the State to notify

the defendant “within a reasonable time prior to trial” of any expert witnesses it

intends to call and of any expert opinions it expects to proffer at trial, including the

basis of such opinions. Determining what types of discovery are subject to the

notice requirement in § 15A-903(a)(2) had been the subject of much debate.

However, in State v. Blankenship, ___ N.C. App. ___, 631 S.E.2d 208, 211-12

(2006), this Court conclusively determined the scope of the notice provision.

In Blankenship, the defendant was convicted of possessing immediate

precursor chemicals. Expert witness SBI Agent Razzo testified for the State about

the process of manufacturing methamphetamines. The defendant objected to the

admission of Razzo’s testimony because the State failed to notify the defendant as

required by § 15A-903(a)(2) that it intended to offer his opinion regarding the

manufacture of methamphetamines. The trial court ruled that the State had not

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committed a discovery violation because Razzo would not be testifying as an

expert. Although the court noted that Razzo’s testimony on the process of making

methamphetamines would include facts not generally known to any juror, the court

concluded that he would only be testifying to facts as a lay witness. Thus, the

court held that § 15A-903(a)(2) did not apply.

This Court found that although the trial court permitted Razzo “to testify as

a so-called lay witness,” Razzo was “in fact qualified as, and testified as, an expert

witness[.]” Blankenship, 631 S.E.2d at 211. As a result, the State was required to

comply with § 15A-903(a)(2) and notify the defendant of its intention to introduce

Razzo’s opinion regarding the manufacturing of methamphetamine. Id. at 211-12.

The Court held that the trial court abused its discretion in permitting Razzo to

testify and erred in finding that the State had not violated the discovery provisions

in § 15A-903(a)(2). Id. at 212. The State’s failure to comply with the discovery

statute prejudiced the defendant, and as a result, the defendant was entitled to a

new trial. Id.

In Mr. Moncree’s case, the trial court admitted expert witness Pintacuda’s

testimony as to the identity of the material found in Mr. Moncree’s shoe.

(Tpp. 57, 58-59, 61) The court reasoned that because the material was never

subjected to any chemical analysis, Pintacuda would not be testifying as an expert

to any test results. (Tp. 57) Instead, he would only be testifying as a lay witness

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giving his opinion on the nature of the material. (Tp. 57) The court ruled that

because § 15A-903(a)(2) did not apply, the State had not committed a discovery

violation. (Tp. 57)

The trial court’s rationale for admitting Pintacuda’s testimony mirrored that

of the trial court in Blankenship, which this Court rejected. First, Pintacuda was

qualified and testified as an expert witness. (Tp. 22) The State tendered Pintacuda

as “an expert in the field of forensic chemistry specializing in the analysis of

controlled substances.” (Tpp. 19-22) Mr. Moncree stipulated that Pintacuda was

an expert, and the trial court received him as an expert. (Tp. 22) As in

Blankenship, during the State’s qualification of Pintacuda, the jury heard extensive

evidence about his training, experience, and specialized knowledge in the

identification of controlled substances. (Tpp. 20-22) Pintacuda specifically

testified that he had been a forensic scientist in the criminal justice system for

thirty-seven years, that he had been in his current position as senior chemist with

the SBI for twenty-one years, and that his duties included analyzing physical

evidence, training other chemists, and laboratory management. (Tpp. 20-22)

Further, since the trial court received Pintacuda as an expert, the court instructed

the jury on expert testimony. (Tpp. 22, 145-146) As a result, the jury was entitled

to consider all of Pintacuda’s testimony as expert testimony.

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Second, like Razzo’s testimony in Blankenship, Pintacuda’s testimony

identifying the evidence from Mr. Moncree’s shoe as marijuana assisted the jury to

determine a fact in issue. § 8C-1, Rule 702. Because Pintacuda was more

qualified than the jury in the field of chemical analysis of controlled substances,

the State offered his testimony to assist the jury in drawing inferences regarding

the identity of controlled substances. Also, Pintacuda’s testimony was in the form

of an opinion, as he did not simply testify to facts when he concluded that State’s

Exhibit Number 6 was marijuana. (Tpp. 59, 61) Instead, he used his specialized

experience in forensic chemistry to draw inferences and form an opinion about the

identity of substance found in Mr. Moncree’s shoe. Specifically, he testified that

based on the “structure, the appearance, the seeds, [and] the stems[]” of State’s

Exhibit Number 6, it was his conclusion that the substance from Mr. Moncree’s

shoe was marijuana. (Tpp. 59, 61)

Third, as in Blankenship, the State failed to notify Mr. Moncree within a

reasonable time prior to trial that it intended to proffer expert witness Pintacuda’s

testimony that the identity of the substance discovered in Mr. Moncree’s shoe was

marijuana. The State notified Mr. Moncree that Pintacuda would give an opinion

based on SBI test results as to the identity of the evidence found in the front

passenger seat of Mr. Moncree’s truck and in the back of Roberts’ patrol car.

(Tpp. 25, 55) However, the State did not notify Mr. Moncree that Pintacuda would

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give an opinion as to the identity of the evidence discovered in the shoe.

(Tpp. 33-34, 39-40, 43)

Finally, the trial court’s admission of Pintacuda’s testimony prejudiced Mr.

Moncree. The State failed to send the evidence from Mr. Moncree’s shoe to the

SBI for chemical analysis. Thus, the lay opinion testimony of Roberts and Lail

was the only evidence the State had to offer as to the nature of that evidence.

(Tpp. 76-77, 120) In an attempt to bolster its case, the State wanted to ask

Pintacuda, its only expert witness, to identify the evidence from the shoe. Due to

Pintacuda’s expertise, the State could reasonably expect that the jury would find

his opinion to be more credible than the lay opinions of Lail and Roberts

concerning the identity of that evidence, particularly since Roberts thought that the

bag of cocaine from the back of his patrol car was methamphetamines and Lail did

not know the active ingredient in marijuana. (Tpp. 75, 122)

Mr. Moncree was tried on indictments alleging eight separate counts of

various drug violations. (Rpp. 2-6, 8-9) The jury acquitted Mr. Moncree of half of

the charges against him, demonstrating that the jury generally disbelieved the

testimony of the State’s witnesses and perceived the State’s evidence against Mr.

Moncree to be insufficient. Thus, if the court had not admitted Pintacuda’s

testimony that the evidence found in the shoe was marijuana, there is a reasonable

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probability that the jury would have acquitted Mr. Moncree of misdemeanor

possession in 05 CRS 20128 and of felony possession in 05 CRS 20127.

The trial court in Mr. Moncree’s case erred in ruling that § 15A-903(a)(2)

did not apply and that the State had not committed a discovery violation. The

court arrived at its conclusion using the rationale that this Court rejected in

Blankenship. Accordingly, Blankenship mandates that Mr. Moncree’s convictions

for possession of up to one-half ounce of marijuana in 05 CRS 20128 and

possession of marijuana on the premises of a local confinement facility in 05 CRS

20127 be reversed.

II. THE TRIAL COURT ERRED BY DENYING MR. MONCREE’S MOTIONS TO DISMISS THE CHARGE OF POSSESSION OF MARIJUANA ON THE PREMISES OF A LOCAL CONFINEMENT FACILITY AS THE STATE FAILED TO ESTABLISH THAT MR. MONCREE WAS IN A SECURED AREA ACCESSIBLE ONLY TO OFFICERS AND THEIR DETAINEES AND THUS, ON THE PREMISES OF A LOCAL CONFINEMENT FACILITY.

Assignment of Error No. 6, Rp. 55

Standard of Review

The issue of whether the State’s evidence was sufficient presents a question of

law subject to de novo review by this Court. State v. Hart, ___ N.C. App. ___, 633

S.E.2d 102, 108 (2006).

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Discussion

Mr. Moncree was charged with and convicted of possession of marijuana on

the premises of a local confinement facility in violation of

N.C. Gen. Stat. § 90-95(e)(9). (Rpp. 8, 45-46) However, the State failed to

establish an essential element of the offense: that Mr. Moncree was in a secured

area accessible only to officers and their detainees and thus, on the premises of a

local confinement facility.

Pursuant to § 90-95(e)(9), any person who knowingly possesses a controlled

substance on the premises of a local confinement facility or penal institution is

guilty of a Class H felony. Section 90-95(e)(9) does not define the term “local

confinement facility.” However, § 153A-217 provides that a “local confinement

facility” includes a “county or city jail, a local lockup, a regional or district jail, a

juvenile detention facility, a[n] [adult] detention facility . . . operated by a local

government, and any other facility operated by a local government for [the]

confinement of persons awaiting trial or serving sentences . . . .” Moreover, this

Court has held that the premises of a “local confinement facility” clearly includes

the secured areas designated for inmate housing, but it also includes those secured

areas accessible only to “law enforcement officers” and “individuals in [their]

custody . . . who are to be taken before the magistrate.” State v. Dent, 174 N.C.

App. 459, 467, 621 S.E.2d 274, 280 (2005).

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In Dent, an officer pulled the defendant’s vehicle over and arrested him for

driving while license revoked. The defendant smelled like marijuana, so the

officer searched him at the scene but did not find any drugs. The officer

transported the defendant to the Forsyth County Law Enforcement and Detention

Center. Prior to entering the detention center, the officer asked the defendant

several times if he had any drugs on him. The defendant responded that he did not.

The officer warned the defendant that if he carried drugs into the detention center,

he would be charged with felony possession. Once inside the facility, the officer

escorted the defendant to the lobby of the magistrate’s office and placed him in a

holding cell located within the lobby. While in the holding cell, officers strip

searched the defendant and discovered some marijuana in his sock. The defendant

was convicted of possession of marijuana on the premises of a local confinement

facility. On appeal, the defendant argued that the premises of a local confinement

facility did not include the lobby of the magistrate’s office or the holding cell

located within the lobby of the magistrate’s office.

Although § 153A-217 provides that a “local confinement facility” includes a

detention center such as the Forsyth County Law Enforcement and Detention

Center, this Court examined whether the State had produced sufficient evidence

that the defendant’s actual location within the facility was itself a secured area.

This Court found that the State’s evidence demonstrated that: (1) before entering

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the detention center, the officer had to “first proceed through a locked vehicle

gate” where he had to identify himself and check his weapon; (2) the lobby of the

magistrate’s office was itself a secured area accessible only to officers and

arrestees in their custody; (3) the secured holding cell, located within the secured

lobby of the magistrate’s office, was also only accessible to officers and their

arrestees; and (4) the defendant was in the secured holding cell when officers

discovered the marijuana in his sock. Id. at 460, 621 S.E.2d at 275.

Not only was the holding cell a secured area accessible only to officers and

arrestees, but the surrounding area, specifically the magistrate’s lobby, was also a

secured area accessible only to officers and arrestees. Thus, the Court found that

for purposes of § 90-95(e)(9), the holding cell constituted the premises of a local

confinement facility and held that trial court did not err by denying defendant’s

motion to dismiss. Id.

Mr. Moncree was being booked and processed at the Sheriff’s Department

when an officer found marijuana in his shoe. The facility also included a jail.

(Tp. 117) Pursuant to § 153A-217, a “local confinement facility” includes county

jails. However, just as in Dent, the State must produce sufficient evidence that Mr.

Moncree’s actual location within the Sheriff’s Department was a secured area

accessible only to officers and detainees, and in Mr. Moncree’s case, unlike Dent,

the State failed to meet its burden.

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First, no evidence suggested that Mr. Moncree was in a secured area

accessible only to officers and detainees. In contrast to Dent, no evidence

suggested that he was put in any type of secured lobby, search room, or holding

cell. Lail testified that Mr. Moncree emptied his pockets at “the counter” and was

sitting on “the bench” when he noticed the substance in his shoe. (Tpp. 118-19)

However, the State did not elicit any testimony from Lail or any other witness that

either “the bench” or “the counter” was located in a secured area accessible only to

officers and arrestees. The State failed to produce any evidence regarding the

security and accessibility of the booking and processing area.

Second, the State wholly failed to produce any evidence on the security or

accessibility of any part of the entire facility. Unlike Dent, no witness testified to

the existence of a security checkpoint at the facility’s entrance. No witness

testified that the facility was not fully accessible to those members of the public

seeking services provided by the Sheriff’s Department. Significantly, the State

simply failed to produce any evidence as to the accessibility or security of any part

of the Sheriff’s Department.

The State failed to establish an essential element of the charged offense: that

Mr. Moncree was in a secured area accessible only to officers and their detainees

and therefore, on the premises of a local confinement facility. However, in a

criminal case, the State must present substantial evidence of each essential element

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of the crime charged. State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814

(1990). Substantial evidence is evidence from which a juror could conclude that

the accused is guilty of each essential element beyond a reasonable doubt. State v.

Earnhardt, 307 N.C. 62, 66, n. 1, 296 S.E.2d 649, 652, n. 1 (1982) (citing Jackson

v. Virginia, 443 U.S. 307, 319, n. 12, 61 L.Ed.2d 560, 573, n. 12 (1979)).

While the State’s evidence established that Mr. Moncree was sitting on “the

bench” in the booking and processing area of the Sheriff’s Department, no

evidence suggested that he was in a secured area accessible only to officers and

arrestees. Although the State’s evidence may support a strong suspicion of guilt,

evidence that merely arouses conjecture or suspicion fails to satisfy the State’s

burden of proof. Earnhardt, 307 N.C. at 65-66, 296 S.E.2d at 651-52. Therefore,

the trial court erred by denying Mr. Moncree’s motions to dismiss and entering

judgment against him for possession of marijuana on the premises of a local

confinement facility. Mr. Moncree’s conviction must be vacated.

III. THE TRIAL COURT ERRED BY DENYING MR. MONCREE’S MOTIONS TO DISMISS AND ENTERING JUDGMENT AGAINST HIM IN 05 CRS 20127 AND 05 CRS 20128 FOR TWO COUNTS OF POSSESSION OF MARIJUANA AS THE STATE’S EVIDENCE DEMONSTRATED THAT BOTH COUNTS AROSE FROM ONE CONTINUOUS ACT OF POSSESSION.

Assignments of Error Nos. 3, 6, and 12, Rpp. 54, 55, 56

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Standard of Review

Whether the State’s evidence was sufficient is a question of law, subject to de

novo review by this Court. State v. Hart, ___ N.C. App. ___, 633 S.E.2d 102, 108

(2006).

Discussion

Based on the evidence discovered in Mr. Moncree’s shoe, he was charged

with and convicted of one count of misdemeanor possession of marijuana under

N.C. Gen. Stat. § 90-95(d)(4) and one count of felony possession of marijuana on

the premises of a local confinement facility under § 90-95(e)(9). (Rpp. 8-9, 45-46)

However, the State’s evidence demonstrated only one act of possession.

Therefore, the trial court erred by denying Mr. Moncree’s motions to dismiss and

entering judgment against him for both misdemeanor possession in 05 CRS 20127

and felony possession in 05 CRS 20128.

Section 90-95(a)(3) makes it a crime to unlawfully possess any controlled

substance. Unless the State proves that the defendant possessed more than one-

half ounce of marijuana, § 90-95(d)(4) classifies a violation of § 90-95(a)(3) as a

Class 3 misdemeanor.

Section 90-95(e)(9) provides that any individual who violates § 90-95(a)(3)

“on the premises of a penal institution or local confinement facility shall be guilty

of a Class H felony.”

21

The facts in Mr. Moncree’s case are remarkably similar to those in State v.

Alston, 111 N.C. App. 416, 432 S.E.2d 385 (1993). In Alston, the defendant sold a

rock of crack cocaine to an undercover agent for forty dollars. The exchange took

place within one hundred feet of the front entrance to a middle school. Based on

that single exchange, the defendant was charged in separate indictments with one

count of sale of cocaine in violation of § 90-95(a)(1) and one count of sale of

cocaine within three hundred feet of school property in violation of § 90-95(e)(8).

The jury convicted defendant of both counts of sale of cocaine, and the trial court

entered judgment against him for both counts.

Although the defendant failed to challenge the sufficiency of the State’s

evidence on appeal, this Court sua sponte found that the evidence demonstrated

that both charges arose from a single act of sale. Id. at 416, 432 S.E.2d at 385.

The sale on school property merely constituted “an aggravated sale pursuant to

[§] 90-95(e)(8)[,]” and thus, the Court arrested one of defendant’s convictions for

sale of cocaine. Id.

Here, based on the single amount of marijuana in his shoe, Mr. Moncree was

convicted of two counts of possession. However, no reasonable juror could have

concluded beyond a reasonable doubt that Mr. Moncree committed two separate

and distinct acts of possession. State v. Earnhardt, 307 N.C. 62, 66, n. 1, 296

S.E.2d 649, 652, n. 1 (1982) (citing Jackson v. Virginia, 443 U.S. 307, 319, n. 12,

22

61 L.Ed.2d 560, 573, n. 12 (1979)). Like Alston, the State’s evidence at most

established that both counts of possession arose from a single act of possession of a

single amount of marijuana. The State failed to meet its burden of proof. State v.

Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Therefore, the trial court

erred by denying Mr. Moncree’s motions to dismiss and entering judgment against

him for two counts of possession of the same marijuana. Mr. Moncree’s

conviction for misdemeanor possession of marijuana in 05 CRS 20128 must be

vacated.

IV. THE TRIAL COURT ERRED BY DENYING MR. MONCREE’S MOTIONS TO DISMISS AND ENTERING JUDGMENT AGAINST HIM FOR THREE COUNTS OF POSSESSION OF MARIJUANA AS THE STATE’S EVIDENCE ESTABLISHED THAT ALL THREE COUNTS AROSE FROM THE SAME ACT OF POSSESSION.

Assignments of Error Nos. 3, 4, 6, 10, and 12, Rpp. 54, 55, 56

Standard of Review

Whether the State’s evidence was sufficient presents a question of law, which

is reviewed de novo by this Court. State v. Hart, ___ N.C. App. ___, 633 S.E.2d

102, 108 (2006).

Discussion

The State’s evidence established that officers discovered marijuana in the

front passenger seat of Mr. Moncree’s truck and in his left shoe. (Tpp. 66, 119)

Based on this evidence, Mr. Moncree was charged with and convicted of three

23

counts of possession of marijuana. (Rpp. 2, 8, 9) For the marijuana in his truck,

he was convicted of one count of possession of up to one-half ounce of marijuana

in violation of N.C. Gen. Stat. § 90-95(d)(4). (Rp. 2) For the marijuana in his

shoe, he was convicted of one count of possession of up to one-half ounce of

marijuana in violation of § 90-95(d)(4) and one count of possession of marijuana in

violation of § 90-95(e)(9). (Rpp. 8-9) However, the State’s evidence established

that all three counts arose from a single continuous act of possession. As the State

failed to establish three distinct acts of possession, the trial court erred in denying

Mr. Moncree’s motions to dismiss and entering judgment against him for three

counts of possession of marijuana.

In State v. Rozier, 69 N.C. App. 38, 316 S.E.2d 893 (1984), defendants

Carter and Rozier were charged with and convicted of two counts of possession of

cocaine. The State’s evidence showed that an undercover agent used one of

defendants’ regular buyers to arrange a drug sale between the agent and

defendants. The agent drove the buyer to Carter’s trailer. While the agent waited

in the car, the buyer entered the trailer to get the drugs. Then, the buyer headed

back out to the agent’s car to get the cash. Once the buyer was back in the car, the

agent sped away before paying for the cocaine. Carter and Rozier jumped in

Rozier’s truck and chased after the agent’s car. As defendants reached the road,

officers surrounded them. A search incident to arrest revealed that each defendant

24

possessed a vial containing trace amounts of cocaine. Based on the large quantity

of cocaine sold, each defendant was convicted of felony trafficking cocaine by

possession. Based on the trace amounts discovered during the search incident to

arrest, each defendant was also convicted of simple possession of cocaine. On

appeal, each defendant argued that his possession of two different amounts of

cocaine, the large quantity sold and his personal stash, constituted a single

continuing act of possession.

This Court found the evidence showed that defendants possessed the large

quantity of cocaine for the purpose of selling it and possessed the trace amounts for

personal use. No evidence suggested that the trace amounts were originally part of

the large amount sold. Because defendants possessed the separate amounts of

cocaine for two distinct purposes, the Court found two distinct acts of possession.

Therefore, this Court upheld both possession convictions. Id. at 55, 316 S.E.2d at

904.

The Court noted that in order for the State to obtain multiple possession

convictions, it must establish distinct acts of possession separated in time and

space. Id. at 54, 316 S.E.2d at 904. For example, if the defendant possessed

separate amounts of different types of drugs at the same time, then the evidence

clearly supports separate possession convictions. Id. at 55, 316 S.E.2d at 904

(citing United States v. Privett, 443 F.2d 528 (9th Cir. 1971) (holding that three

25

balloons of heroin, each containing heroin of different purity, discovered on

defendant’s person and in two different places in his vehicle supported three

convictions)).

However, if the defendant possessed separate amounts of the same drug at

the same time, then the evidence supports only one possession conviction. Id. at

54-55, 316 S.E.2d at 904 (citing People v. Shea, 169 Cal. Rptr. 24, 27-28

(Cal. Ct. App. 1989) (holding that evidence supported only one possession

conviction when defendant possessed three separate amounts of the same drug on

her person at the same time)). To illustrate, a defendant’s possession of separate

caches of cocaine discovered on the same day in different locations within his

home would support only one possession conviction. See State v. Smith,

99 N.C. App. 67, 74, 392 S.E.2d 642, 647 (1990).

In Smith, officers searched defendant’s home and found .22 grams of

cocaine in a plastic bottle on top of a dresser and 2.1 grams of cocaine in seventeen

baggies hidden nearby between the bed and the wall. The defendant was convicted

of one count of felony possession of cocaine. On appeal, defendant argued that the

trial court erred by failing to instruct on the lesser-included offense of

misdemeanor possession. The defendant claimed that possession of two caches of

cocaine should be considered two separate and distinct acts of possession. If

26

considered individually, the .22 grams found on the dresser would have required an

instruction on misdemeanor possession.

Although defendant failed to properly preserve the issue for appeal, this

Court noted that if it had been preserved, it would have overruled the defendant’s

argument. Id. at 74, 392 S.E.2d at 646. The Court reasoned that if possession of

multiple caches of the same drug must be considered separate possessions, then

“drug dealers could simply divide cocaine into packages containing less than one

gram each to avoid being prosecuted for a felony.” Id. at 74, 392 S.E.2d at 647.

Thus, the Court concluded that defendant’s possession of multiple caches of the

same drug discovered on the same day in different locations in his home

constituted a single act of possession. Id.

In Mr. Moncree’s case, as in Smith, officers found two amounts of the same

drug on the same day in different places. First, Roberts found some marijuana in

Mr. Moncree’s truck. After Mr. Moncree was arrested, Lail found some marijuana

in Mr. Moncree’s shoe. In Smith, since defendant’s possession of multiple caches

of the same drug discovered on the same day in different locations in his home

supported only one possession conviction, then Mr. Moncree’s possession of

multiple caches of marijuana discovered on the same day in his truck and on his

person once he exited his truck, likewise supported only one possession conviction.

27

Based on the evidence found in the truck and the shoe, the State charged Mr.

Moncree with three separate counts of possession. However, the State’s evidence

at best established only one act of possession. Unlike Rozier, no evidence

suggested that Mr. Moncree possessed one stash for the purpose of sale and the

other for personal use. Combined, the two small stashes merely weighed 21.7

grams suggesting that Mr. Moncree did not intend to sell either amount.

(Tpp. 26, 121) Moreover, Roberts testified that he smelled marijuana coming from

the interior of Mr. Moncree’s truck. (Tp. 64) Thus, the evidence suggested that

Mr. Moncree did not possess the marijuana for the purpose of selling it. Instead,

he wanted to smoke it himself.

Moreover, like Smith, Mr. Moncree possessed both the marijuana in the

truck and the marijuana in the shoe simultaneously. The State presented no

evidence suggesting that Mr. Moncree came into possession of the marijuana in his

shoe after his arrest. In fact, Roberts testified that Mr. Moncree possessed both the

marijuana in his truck and the marijuana in his shoe at the same time at the scene

of the traffic stop. He testified that both amounts would have been discovered at

the scene had an adequate search been conducted. (Tpp. 79-80)

As the State failed to produce substantial evidence of the essential elements

of three separate and distinct acts of the possession, the State failed to meet its

burden of proof. State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990).

28

If Roberts had discovered both stashes of marijuana at the same time during the

traffic stop, Mr. Moncree would have only been charged with one count of

possession. Roberts’ failure to discover the marijuana in the shoe did not convert

Mr. Moncree’s single act of possession into three distinct offenses. As in Smith,

Mr. Moncree’s possession of separate caches of the same drug found in different

places on the same day did not convert the offense into three distinct and separate

acts of possession. Thus, two of Mr. Moncree’s convictions for possession of

marijuana must be vacated.

V. THE TRIAL COURT ERRED BY ACCEPTING MR. MONCREE’S PLEA TO HABITUAL FELON STATUS AND ENTERING JUDGMENT AGAINST HIM AS THE HABITUAL FELON INDICTMENT FAILED TO ALLEGE THREE PREDICATE FELONY OFFENSES.

Assignment of Error No. 14, Rp. 57

Standard of Review

Review of the trial court’s subject matter jurisdiction presents a question of

law subject to de novo review by this Court. E.g., Dunn v. State, ___ N.C. App.

___, 635 S.E.2d 604, 606 (2006).

Discussion

The habitual felon indictment in this case listed a prior New Jersey conviction

as one of the three required predicate felony offenses. (Rp. 7) However, under the

laws of New Jersey, the conviction was a high misdemeanor, not a felony. As a

29

result, the indictment failed to allege the essential elements of habitual felon status,

rendering the indictment fatally defective and legally insufficient to confer

jurisdiction upon the trial court. Thus, the trial court erred by accepting Mr.

Moncree’s plea and entering judgment and sentence against him on the habitual

felon indictment.

In a criminal case, a valid indictment is essential to confer subject matter

jurisdiction upon the trial court. State v. Wilson, 128 N.C. App. 688, 691, 497

S.E.2d 416, 419 (1998). A valid indictment must allege every element of the

charged criminal offense and “facts supporting every element . . . with sufficient

precision clearly to apprise the defendant . . . of the conduct which is the subject of

the accusation.” N.C. Gen. Stat. § 15A-924(a)(5) (2006). When the “record shows

a lack of jurisdiction in the lower court, the appropriate action on the part of the

appellate court is to arrest judgment or vacate any order entered without authority.”

State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981).

Any jurisdictional defect may be raised at any time, even if raised for the

first time on appeal, and constitutes per se reversible error. Wilson, 128 N.C. App.

at 691, 497 S.E.2d at 419. See also §§ 15A-1446(d)(1) and (4).

An habitual felon indictment must allege that the defendant has been

convicted of three prior felony offenses “in any federal or state court.” § 14-7.1.

The statute defines a felony offense as “an offense which is a felony under the

30

laws of the State or sovereign wherein a plea of guilty was entered or a

conviction was returned regardless of the sentence actually imposed.” Id.

(emphasis added). If one of the predicate offenses alleged was not a felony under

the laws of the state in which the plea or conviction was entered, the conviction is

incompetent to serve as one of the predicate felony offenses required for habitual

felon status. See State v. Carpenter, 155 N.C. App. 35, 51, 573 S.E.2d 668, 678

(2002) (citing State v. Lindsey, 118 N.C. App. 549, 553, 455 S.E.2d 909, 912

(1995)).

In Carpenter, the defendant was convicted of habitual felon status. The

habitual felon indictment listed two prior New Jersey convictions. The defendant

moved to dismiss the indictment because it failed to allege the essential elements

of habitual felon status. Specifically, defendant argued that the “two New Jersey

convictions were ‘not felonies within the meaning of the North Carolina Habitual

Felons Act.’” Id. at 50, 573 S.E.2d at 678. The trial court denied defendant’s

motion to dismiss the indictment. In reliance on Lindsey, this Court vacated

defendant’s habitual felon conviction because the New Jersey judgments failed to

state that defendant was a felon or convicted of a felony. Id. at 51, 573 S.E.2d at

678. As the State failed to otherwise establish that the convictions were felonies

under the laws of New Jersey, the Court held that the trial court erred in denying

defendant’s motion to dismiss the habitual felon indictment. Id.

31

In Lindsey, just as in Carpenter, the defendant was convicted of habitual

felon status and the habitual felon indictment listed a prior New Jersey conviction.

The trial court denied defendant’s motion to dismiss the habitual felon charge for

insufficient evidence. This Court found that the State failed to present substantial

evidence that the New Jersey conviction was a felony under the laws of New

Jersey and thus, vacated defendant’s habitual felon conviction. Lindsey, 118 N.C.

App. at 553, 455 S.E.2d at 912.

In both Lindsey and Carpenter, the State argued that because the New Jersey

convictions were punishable by more than one year imprisonment in New Jersey,

the convictions were competent predicate felonies to support the habitual felon

charge. However, in both cases, this Court held that “we cannot conclude from the

length of defendant’s sentence . . . that the offense was a felony in New Jersey.”

Carpenter, 118 N.C. App. at 553, 455 S.E.2d at 912 (quoting Lindsey, 118 N.C.

App. at 553, 455 S.E.2d at 912).

Here, just like Carpenter and Lindsey, the indictment charging Mr. Moncree

with habitual felon status listed a prior New Jersey conviction. Specifically, the

indictment alleged a 1998 conviction for “felony” possession of a controlled

dangerous substance in violation of N.J. Stat. Ann. § 2C:35-10(a)(1). (Rp. 7)

However, New Jersey law designated possession of a controlled dangerous

substance as a high misdemeanor. See State v. Bush, 340 A.2d 697, 699 (N.J.

32

Super. Ct. Law Div. 1975) (stating that possession of a controlled substance listed

in Schedules I, II, III, or IV is a high misdemeanor).

In 1987, the New Jersey legislature revised the state’s controlled substances

act. N.J. Ann. Stat. § 2C:35-1, et seq. See State v. Jordan, 563 A.2d 463, 464

(N.J. Super. Ct. App. Div. 1989) (noting that in many respects, § 2C:35-1 et seq.

repealed the old controlled substances act). Under the new act, the legislature

classified drug offenses as crimes of the first, second, third, or fourth degree and

provided mandatory sentencing guidelines for each degree. See N.J. Ann. Stat. §§

2C:43-1 (classifying offenses as crimes of the first, second, third, or fourth degree)

and 2C:43-6 (providing structured sentencing guidelines for each degree of

offense).

Under this sentencing classification system, however, the legislature did not

alter its designation of certain offenses as high misdemeanors. See § 2C:43-1(b)

(directing that any crime not specifically covered in the code but designated as a

high misdemeanor under New Jersey law, shall constitute a third degree crime “for

the purpose of sentence”). Instead, the legislature classified offenses to provide for

a more structured sentencing system. Thus, although § 2C:35-10(a)(1) classified

possession of a controlled dangerous substance as a third degree crime for

sentencing purposes, New Jersey law still designated the offense as a high

misdemeanor. As this Court “cannot conclude from the length of defendant’s

33

sentence . . . that the offense was a felony in New Jersey[,]” Carpenter, 118 N.C.

App. at 553, 455 S.E.2d at 912 (quoting Lindsey, 118 N.C. App. at 553, 455 S.E.2d

at 912), the offense must be treated as a misdemeanor in North Carolina just as it

was in New Jersey.

It is useful to compare the State’s use of prior out-of-state convictions under

the Structured Sentencing Act and under the Habitual Felons Act. Under the

Structured Sentencing Act, if the State proves by the preponderance of the

evidence that an out-of-state misdemeanor conviction is substantially similar to an

offense that North Carolina classifies as a Class I felony or higher, then the out-of-

state misdemeanor conviction is treated as a felony for assigning prior record level

points. § 15A-1340.14(e). In contrast, under the Habitual Felons Act, it is

irrelevant that North Carolina classifies or punishes conduct comparable to the out-

of-state offense as a felony. § 14-7.1. The determinative law for habitual felon

purposes is the law of the state in which the conviction was entered. Id.

In Lindsey and Carpenter, this Court examined the problems that arise when

the State uses prior New Jersey convictions as predicate felonies to support

habitual felon indictments. As in Lindsey and Carpenter, Mr. Moncree’s prior

New Jersey conviction was not a felony under the laws of New Jersey. As a result,

the indictment failed to allege three predicate felony offenses required for the

habitual felon charge and failed to confer jurisdiction upon the trial court. As Mr.

34

Moncree’s guilty plea did not waive his right to challenge the trial court’s

jurisdiction on appeal, State v. Hughes, 136 N.C. App. 92, 97, 524 S.E.2d 63, 66

(1999), disc. review denied, 351 N.C. 644, 543 S.E.2d 878 (2000), his habitual

felon conviction must be vacated.

CONCLUSION

For the foregoing reasons and authorities, Mr. Moncree respectfully requests

that his convictions be vacated or, in the alternative, that his convictions be

reversed and the cause remanded for a new trial. Mr. Moncree further requests that

his habitual felon sentence be vacated and the matter remanded for resentencing.

Respectfully submitted, this the 2nd day of April, 2007.

_________________________________________Emily H. DavisAssistant Appellate DefenderEmily.H.Davis@nccourts.org

Staples HughesAppellate DefenderOffice of the Appellate Defender123 West Main Street, Suite 500Durham, North Carolina 27701919.560.3334

ATTORNEYS FOR DEFENDANT-APPELLANT

35

CERTIFICATE OF COMPLIANCE WITH RULE 28(J)(2)

I hereby certify that Defendant-Appellant’s Brief is in compliance with Rule 28(j)(2) of the North Carolina Rules of Appellate Procedure in that it is printed in fourteen point Times New Roman font and the body of the brief, including footnotes and citations, contains no more than 8750 words as indicated by Microsoft Word, the program used to prepare the brief.

This the 2nd day of April, 2007.

_________________________________________Emily H. DavisAssistant Appellate Defender

36

CERTIFICATE OF FILING AND SERVICE

I hereby certify that the original Defendant-Appellant’s Brief has been filed pursuant to Rule 26 of the North Carolina Rules of Appellate Procedure by sending it first-class mail, postage prepaid, to the Clerk of the North Carolina Court of Appeals, Post Office Box 2779, Raleigh, North Carolina 27602-2779, by placing it in a depository for that purpose.

I further certify that a copy of the above and foregoing Defendant-Appellant’s Brief has been duly served upon the State of North Carolina by sending it first-class mail, postage prepaid, to Ms. Lisa G. Corbett, Assistant Attorney General, North Carolina Department of Justice, Post Office Box 629, Raleigh, North Carolina 27602-0629, by placing it in a depository for that purpose.

This the 2nd day of April, 2007.

_________________________________________Emily H. DavisAssistant Appellate Defender

37