An unpublished opinion of the North Carolina Court of Appeals does not constitute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.



                               NO. COA13-1383
                       NORTH CAROLINA COURT OF APPEALS
                             Filed:     19 August 2014

STATE OF NORTH CAROLINA

                                              Buncombe County
       v.
                                              No. 13 CRS 1609

KEVIN CHRISTOPHER KELLY


       Appeal by defendant from order entered 3 July 2013 by Judge

Jeffrey P. Hunt in Buncombe County Superior Court.                  Heard in the

Court of Appeals 4 August 2014.


       Attorney General Roy Cooper, by Assistant Attorney General
       Carolyn McLain, for the State.

       Don Willey for defendant-appellant.


       ERVIN, Judge.


       Defendant    Kevin    Christopher     Kelly    appeals     from       an   order

placing him on probation pursuant to N.C. Gen. Stat. § 90-96

based upon a jury verdict finding him guilty of possession of

drug   paraphernalia      and   possession      of   marijuana.         On    appeal,

Defendant contends that the trial court erred by denying his

motion to dismiss         for insufficiency of the evidence.                      After

careful     consideration     of   Defendant’s       challenges    to    the      trial
                                                -2-
court’s order in light of the record and the applicable law, we

conclude that the trial court’s order should remain undisturbed.

                                  I. Factual Background

                                   A. Substantive Facts

       On 25 January 2013, two officers of the Asheville Police

Department encountered                 Defendant      in a   parking lot.            At that

time, the officers saw a man hand Defendant a cigarette, which

Defendant        put        in   his    mouth.        When    he    saw     the   officers,

Defendant’s “eyes got very big, and he tossed the cigarette into

the roadway.”           After the officers stopped to investigate, one of

them collected the cigarette.                       At trial, the officers, based

upon their training and experience, testified that the cigarette

contained marijuana.                   Defendant, on the other hand, testified

that   visibility            conditions        at   the   time     of   the   incident     in

question were poor and that he never possessed the marijuana

cigarette described by the arresting officers.

                                  B. Procedural History

       On   25    January        2013,     a    citation     charging     Defendant       with

possession of drug paraphernalia and possession of marijuana was

issued.      On        18    April      2013,   Judge     James    Calvin     Hill   of    the

Buncombe County District Court found Defendant guilty as charged

and, after initially entering an order of conditional discharge

placing Defendant on probation pursuant to N.C. Gen. Stat. § 90-
                                       -3-
96, entered a judgment sentencing Defendant to a term of 10 days

incarceration,     with    that    term    being     suspended   and    Defendant

being    placed   on    supervised     probation      for   12   months   on    the

condition that Defendant pay a fine of $75.00 and the costs and

comply    with    the   usual     terms    and     conditions    of    probation.

Defendant noted an appeal from Judge Hill’s judgment to the

Buncombe County Superior Court for a trial de novo.

     The charges against Defendant came on for trial before the

trial court and a jury at the 1 July 2013 criminal session of

the Buncombe County Superior Court.                On 2 July 2013, the jury

returned a verdict convicting Defendant of possession of drug

paraphernalia and possession of marijuana.1                 After accepting the

jury’s verdict, the trial court entered an order of conditional

discharge   pursuant      to    N.C.   Gen.   Stat.     §   90-96     under    which

Defendant was placed on supervised probation for a period of one

year on the condition that he pay the costs, obtain a mental

health    assessment,      and    comply      with    the    usual     terms    and

conditions of probation and that he return for a further hearing

to determine the extent to which he had complied with the terms

and conditions of probation on 7 July 2014.                 Defendant noted an

appeal to this Court from the trial court’s order.2

     1
      The jury also found Defendant not guilty of a second degree
trespass charge that had also been lodged against him.
                                     -4-
                    II. Substantive Legal Analysis

    In     his   sole   challenge    to    the   trial   court’s    judgment,

Defendant contends that the trial court erred by denying his

motion to dismiss the charges that had been lodged against him

because the officers’ visual identification of the substance in

the cigarette recovered from the parking lot as marijuana was

insufficient to support a determination that he possessed drug

paraphernalia and marijuana.          As Defendant candidly concedes,

however, we have previously rejected an identical argument in

State v. Johnson, __ N.C. App. __, __, 737 S.E.2d 442, 451,

mandamus    petition    dismissed,    366    N.C.   566,   738     S.E.2d   395

(2013), on the grounds that “officers with proper training and

experience may opine that a substance is marijuana” and that

such an identification is sufficient to withstand a defendant’s
    2
      The extent to which an order of conditional discharge is an
appealable final judgment or an unappealable interlocutory order
was not addressed in either party’s brief and has not been
previously resolved by this Court.       In order to avoid the
necessity for deciding an unaddressed jurisdictional issue and
to ensure that Defendant’s challenge to the jury’s determination
of guilt is heard and considered in a timely manner, we elect,
in the exercise of our discretion, to treat the record and
briefs as a petition for the issuance of a writ of certiorari
pursuant to N.C.R. App. P. 21(a)(1) (authorizing this Court to
grant the writ of certiorari to permit review “when no right of
appeal from an interlocutory order exists”), to grant the
petition, and to review Defendant’s challenge to the jury’s
verdicts on the merits.    Anderson v. Hollifield, 345 N.C. 480,
482, 480 S.E.2d 661, 663 (1997) (stating that “we conclude that
Rule 21(a)(1) gives an appellate court the authority to review
the merits of an appeal by certiorari even if the party has
failed to file notice of appeal in a timely manner”).
                                     -5-
motion   to   dismiss    a   possession    charge.      As   a   result,   since

Defendant’s    sole     challenge   to    the   trial   court’s   order    lacks

merit, that order should, and hereby does, remain undisturbed.

    NO ERROR.

    Judges ROBERT C. HUNTER and STEPHENS concur.

    Report per Rule 30(e).
