                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                        No. COA 16-966

                                      Filed: 20 June 2017

Halifax County, No. 15 CRS 50989-91

STATE OF NORTH CAROLINA, Plaintiff,

               v.

ROBERT EARL ALSTON, Defendant.


        Appeal by defendant from the judgment entered 7 June 2016 by Judge Alma

L. Hinton in Halifax County Superior Court. Heard in the Court of Appeals 9 March

2017.


        Gillette Law Firm, PLLC, by Jeffery William Gillette, for defendant-appellant.

        Attorney General Roy Cooper, by Assistant Attorney General Shawn Maier, for
        the State.


        MURPHY, Judge

        Robert Earl Alston (“Defendant”) appeals from the judgment below in which a

jury found him guilty of maintaining a dwelling for keeping or selling controlled

substances, and possession of OxyCodone and Alprazolam.1 Defendant argues that

the trial court committed plain error when it allowed, without objection, Deputy

Danny Radford (“Deputy Radford”) to give his opinion as to the identity of three pills




        1Defendant does not appeal his convictions for possession of a firearm by a felon, possession
of drug paraphernalia, or possession of marijuana up to one half ounce.
                                   STATE V. ALSTON

                                   Opinion of the Court



found at Defendant’s home, when the deputy was not tendered as an expert and the

basis of his identification was a visual inspection and comparison using a website.

                                Factual Background

      Over several days in 2015, Detective Cory Dixon (“Detective Dixon”) of the

Roanoke Rapids Police Department and City-County Drug Task Force received “a lot

of complaints” about “different traffic leaving Defendant’s residence” in Roanoke

Rapids, North Carolina.       Detective Dixon began surveillance of Defendant’s

residence, and observed Defendant go in and out of his home “three or four times

during the day”, as well as “several people come up to the residence and stay there

for a short stint of time and leave,” which indicated to him evidence of illegal drug

trade. Detective Dixon then sent a confidential source to Defendant’s residence and

observed the confidential source purchase a controlled substance.

      Armed with this knowledge, Detective Dixon obtained and executed a warrant

on Defendant’s residence in the early morning hours of 2 April 2015. There, officers

found Defendant and an unnamed female. Defendant was in his bed. Police located

the following items in their respective locations:

   a. Bedroom nightstand next to Defendant – a Schedule I controlled substance, a

      .25 caliber Raven Arms pistol, marijuana, a glass jar that had the odor of

      marijuana inside of it, and Garcia y Vega cigar wrappers;

   b. Kitchen – digital scales, sandwich bags;



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                                   Opinion of the Court



   c. Kitchen drawer – the same Schedule I controlled substance, an Oxycodone pill,

      and two (2) Alprazolam pills; and

   d. Living room – a marijuana roach in the ashtray, and a security camera set up

      to observe his front yard.

At trial, Deputy Radford of the City-County Task Force testified that he identified

the Alprazolam pills using the website drugs.com.

      On 2 April 2015, Defendant was charged with felony possession of a firearm by

a felon, misdemeanor possession of marijuana paraphernalia, felony possession of a

schedule I controlled substance, misdemeanor simple possession of a schedule II

controlled substance, felony maintaining a dwelling for keeping or selling controlled

substances, misdemeanor possession of marijuana up to one half ounce, and

misdemeanor simple possession of a schedule III controlled substance. On 7 August

2015, Defendant was indicted. On 7 June 2016, he was convicted of these charges,

save for felony possession of a schedule I controlled substance, which was dismissed

by the trial court due to a fatal variance in the proof.

                                       Analysis

      Defendant makes two arguments on appeal to this Court. First, he asserts

that the trial court committed reversible error when it denied Defendant’s motion to

dismiss the charge of maintaining a dwelling for lack of sufficient evidence. Second,

he argues that the trial court committed plain error when it allowed Deputy Radford



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                                    Opinion of the Court



to opine as to the type of pills found at Defendant’s home, where the basis of his

identification was a visual inspection and comparison of the pills with a website.

   I.      Identification of the Pills

        Defendant claims that the trial court committed plain error in allowing Officer

Radford to identify the pills found in Defendant’s residence as Alprazolam and

Oxycodone.

        “In criminal cases, an issue that was not preserved by objection noted at trial

and that is not deemed preserved by rule or law without any such action nevertheless

may be made the basis of an issue presented on appeal when the judicial action

questioned is specifically and distinctly contended to amount to plain error.” N.C. R.

App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007),

cert. denied, 555 U.S. 835, 172 L. Ed. 2d 58 (2008).

        Plain error arises when the error is “so basic, so prejudicial, so lacking in its

elements that justice cannot have been done[.]” State v. Odom, 307 N.C. 655, 660,

300 S.E.2d 375, 378 (1983) (citing United States v. McCaskill, 676 F.2d 995, 1002 (4th

Cir. 1982)). “Under the plain error rule, defendant must convince this Court not only

that there was error, but that absent the error, the jury probably would have reached

a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993)

(citing State v. Faison, 330 N.C. 347, 411 S.E.2d 143 (1991)).




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                                   Opinion of the Court



      Identification of controlled substances by visual inspection by a layperson is

insufficient and identification testimony should rely on chemical analysis. State v.

Llamas-Hernandez, 363 N.C. 8, 8 673 S.E.2d 658, 658 (2009). Detective Radford was

not submitted as an expert witness, and identified the Oxycodone and Alprazolam

through the use of drugs.com, rather than the use of an expert or scientific analysis.

Even if Detective Radford was an expert witness, his testimony would fail under State

v. Brunson, 204 N.C. App. 357, 693 S.E.2d 390 (2010). In Brunson, Ms. Dewell, an

expert chemist, used “visual identification and the use of a Micromedics database of

pharmaceutical preparations to determine that the pills found . . . were an opium

derivative, hydrocodone.” Id. at 360, 693 S.E.2d @ at 393. Here, the State through

Detective Radford has committed the same error in failing to provide any actual

chemical analysis, and thus defendant has not been provided with a fair trial.

      Normally, it would not be plain error for the State to use a website to identify

the pills, on the theory that the State could have presented evidence of the lab

analysis if the Defendant had objected. However, here the State only submitted the

“hard brown material” and “brown rock like substance” to the NC State Crime

laboratory. The pills were not submitted for lab analysis, and so the state would not

have been able to present any chemical analysis of the pills even if Defendant had

objected to the identification of the pills based on a visual inspection.




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                                   Opinion of the Court



         We hold that the admission of the identification of the Oxycodone and

Alprazolam was plain error, and we vacate and remand for a new trial on the charges

of possession of Schedule II and III controlled substances.

   II.      Maintaining a Dwelling

         Defendant argues that the he has preserved the right to de novo review of his

motion to dismiss the charges for maintaining a dwelling for keeping or selling

controlled substances

         “This Court reviews the trial court’s denial of a motion to dismiss de novo.”

State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citing State v.

McKinnon, 306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982)).             “In making its

determination, the trial court must consider all evidence admitted, whether

competent or incompetent, in the light most favorable to the State, giving the State

the benefit of every reasonable inference and resolving any contradictions in its

favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515

U.S. 1135, 132 L. Ed. 2d 818 (1995).

         Under N.C.G.S. § 90-108(a)(7), the State must prove that Defendant “(1)

knowingly or intentionally kept or maintained; (2) a building or other place; (3) being

used for the keeping or selling of a controlled substance.” State v. Frazier, 142 N.C.

App. 361, 365, 542 S.E.2d 682, 686 (2001) (citing State v. Allen, 102 N.C. App. 598,




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                                  Opinion of the Court



608, 403 S.E.2d 907, 913-914 (1991)). In the present case, Defendant disputes the

third element of the offense.

      “The determination of whether a building or other place is used for keeping or

selling a controlled substance will depend on the ‘totality of the circumstances.’ ”

State v. Frazier, 142 N.C. App. 361, 366, 542 S.E.2d 682, 686 (quoting State v.

Mitchell, 336 N.C. 22, 34, 442 S.E.2d 24, 30 (1994)). In the present case, the State

collected and presented at trial the Schedule I controlled substance, marijuana, a

glass jar that had the odor of marijuana inside of it, Garcia y Vega cigar wraps, a

marijuana roach, digital scales, sandwich bags, and a security camera set up in

Defendant’s living room that observed the front yard. The State also located an illegal

handgun in the constructive possession of Defendant, a convicted felon. Particularly

compelling is the evidence that Detective Dixon observed traffic at the residence over

several days consistent with illegal drug trade, and observed a confidential source

successfully buy a controlled substance from Defendant’s residence.

      The combination of Detective Dixon’s observations, the recent purchase of

drugs from Defendant’s residence, the discovery of drugs as well as the means to

package and sell them in the home, the handgun in the constructive possession of a

felon, and the security camera monitoring the front yard all create a set of

circumstances in which a reasonable juror could find Defendant maintained his




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                                        STATE V. ALSTON

                                       Opinion of the Court



dwelling for the purposes of keeping and selling controlled substances.2 Accordingly,

the trial court’s failure to dismiss this charge does not constitute error.

                                          Conclusion

       For the reasons stated above, we vacate Defendant’s convictions for simple

possession of schedule II and III controlled substances and remand this case to the

trial court for the correction of the judgment entered against Defendant in light of

our decision. We find the Defendant received a fair trial free of error in regards to

his conviction for maintaining a dwelling for keeping or selling controlled substances.

       VACATE IN PART; NO ERROR IN PART.

       Judges Stroud and Dillon concur.




       2 For purposes of our analysis, we have eliminated from our consideration the presence of the
alleged OxyCodone or Alprazolam.

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