An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-203
                       NORTH CAROLINA COURT OF APPEALS

                             Filed:     7 October 2014


STATE OF NORTH CAROLINA

      v.                                      Cleveland County
                                              No. 08 CRS 774
ALFRED LEE BROOKS



      Appeal by defendant by writ of certiorari from judgments

entered 19 April 2012 by Judge Timothy S. Kincaid in Cleveland

County Superior Court.          Heard in the Court of Appeals 25 August

2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Michael T. Henry, for the State.

      Jon W. Myers, for defendant-appellant.


      CALABRIA, Judge.


      Alfred     Lee    Brooks     (“defendant”)       appeals     by    writ     of

certiorari from judgments entered upon jury verdicts finding him

guilty of      possession with intent to sell or deliver cocaine

(“PWISD”) and sale of cocaine.           We find no error.

      On 10 December 2007, Randy Connor (“Detective Connor”), an

investigator in the vice narcotics unit of the Shelby Police
                                            -2-
Department, met with a confidential informant (“Mr. West”) for

the    purpose      of     arranging        an     undercover          illegal   narcotic

purchase.      Detective        Connor gave Mr. West twenty dollars, a

video recording system, and sent him to Palmer Street in search

of an individual known as “Cornbread.”                          Upon arriving at the

location, Mr. West learned that Cornbread was unavailable.                                Mr.

West   was   then    approached        by    defendant,          and    Mr.   West     asked

defendant “was he straight, basically asking him did he have

anything.”     Mr. West and defendant agreed to a transaction, and

defendant went across the street to his car.                             When defendant

returned,    he    handed      Mr.    West       “two    small     []   rocks”    of    what

appeared to be crack cocaine.                    Mr. West handed defendant the

money Detective Connor had given him.                     Mr. West then brought the

substance    to     another     detective         and    they    were     placed     in   an

evidence bag.       Field tests were performed on the substance, and

the substance tested positive for cocaine.                       Defendant                was

subsequently       arrested      and    charged         with     PWISD     and   sale     of

cocaine.     At trial, defendant stipulated to the admission of a

State Bureau of Investigation (“SBI”) laboratory report which

identified the material obtained by Mr. West as .1 grams of

cocaine    base.         The   jury    returned         verdicts    finding      defendant

guilty of PWISD and sale of cocaine.                     The trial court sentenced
                                                -3-
defendant to consecutive terms of a minimum of ten months to a

maximum of twelve months for the PWISD offense and a minimum of

sixteen to a maximum of twenty months for the sale of cocaine

offense in the custody of the Division of Adult Correction.                                   On

7 March 2013, this Court granted defendant’s petition for writ

of certiorari.

       Defendant’s sole argument on appeal is that the trial court

erred     by    denying      his        motion     to      dismiss      both   charges      for

insufficiency of the evidence.                   Specifically, defendant contends

that    the    State    failed      to     prove      that      the    substance    Mr.     West

obtained       from     defendant         was     a     controlled       substance.          We

disagree.

       “Upon    a     defendant’s         motion      to     dismiss     for   insufficient

evidence,      the     question         for     the     Court     is    whether     there    is

substantial         evidence       (1)    of     each      essential      element     of    the

offense       charged    .     .    .     and    (2)       of   defendant’s        being    the

perpetrator of such offense.                      If so, the motion is properly

denied.”       State v. Cox, ___ N.C. ___, ___, 749 S.E.2d 271, 274

(2013)     (alteration         in       original)       (citation        omitted).          “The

evidence is to be considered in the light most favorable to the

State, and the State is entitled to . . . every reasonable
                                       -4-
inference to be drawn therefrom.”            Id.    (alteration in original)

(citation omitted).

      The elements of PWISD are “(1) possession of a substance;

(2) the substance must be a controlled substance; and (3) there

must be intent to sell or distribute the controlled substance.”

State v. Mack, 188 N.C. App. 365, 382, 656 S.E.2d 1, 13 (2008)

(citations      omitted).       “Similarly,        [t]o   prove       sale     and/or

delivery   of    a   controlled   substance,        the   State       must    show   a

transfer of controlled substance by either sale or delivery, or

both.”     Id.    (citations    omitted).       Cocaine    is     a    Schedule      II

controlled substance.       N.C. Gen. Stat. § 90-90 (1)(d) (2013).

      In the instant case, defendant does not dispute that he was

the   perpetrator.       Therefore,     this    Court     needs       to    determine

whether the State presented substantial evidence for both PWISD

and sale of cocaine that the substance defendant possessed and

sold was a controlled substance, namely, cocaine.                     See N.C. Gen.

Stat. § 90-95 (2013).       To prove that the substance obtained from

defendant was cocaine, the State sought admission of the SBI’s

laboratory report (“SBI report”).              Defendant stipulated to the

admission of the SBI report.

      Defendant      contends   that   his   stipulation        was        limited   to

admission of the SBI report without the necessary testimony from
                                        -5-
a   laboratory    analyst,    and    that     he   did    not   stipulate    to    the

conclusions      contained    in     the    report.         However,      prior     to

accepting defendant’s stipulation, the trial court clarified to

defendant what the stipulation entailed:

                 One of the elements that the State has
            to prove for the offenses that you are
            charged with is that the substance seized
            was a controlled substance.

                  You can require the State to prove
            that.    That would mean that they have to
            call an expert witness to prove those
            issues.      However,   your   attorney has
            indicated that you – she is willing to
            stipulate – stipulated to the lab report
            coming in or that the substance is –

            [Defense Counsel]: We stipulate to the lab
            report coming in.

            The Court: Okay.       So that means that
            evidence will be in front of the jury
            without someone having to come in and
            testify that the substance they tested was
            whatever it was and this was their report
            and all that; do you understand that?

Defendant     responded      that    he       understood,        and   agreed      and

stipulated    that    this     was      acceptable.             Because   defendant

stipulated to the admission of the SBI report, he has failed to

preserve this issue for appellate review.                   See State v. Ward,

___ N.C. App. ___, ___, 742 S.E.2d 550, 554 (2013) (holding that

defendant    failed   to     preserve      issue    for    appellate      review    by

failing to object to a laboratory report and by stipulating to
                                   -6-
facts included in the substance of the report); see N.C.R. App.

P. 10(a)(1) (2013).

    Defendant    also   contends   that   the   trial   court   erred   in

admitting evidence of the field test conducted on the substance.

However, because the SBI report was “sufficient in itself to

identify the substance as cocaine,” we do not need to address

this argument.   State v. Jones, __ N.C. App. __, __, 725 S.E.2d

910, 913 (SBI lab report was “sufficient in itself to identify

the substance as cocaine.”), appeal dismissed, review denied,

366 N.C. 231, 731 S.E.2d 421 (2012).        Accordingly, we conclude

the trial court did not err by denying defendant’s motion to

dismiss.

    No error.

    Judges GEER and McCULLOUGH concur.

    Report per Rule 30(e).
