               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-844

                                 Filed: 21 April 2020

Cleveland County, No. 16 CRS 52591-93; 16 CRS 52598

STATE OF NORTH CAROLINA

              v.

MICHAEL JIMMY COLEMAN


        Appeal by defendant from judgment entered 22 April 2019 by Judge Carla

Archie in Cleveland County Superior Court. Heard in the Court of Appeals 1 April

2020.


        Attorney General Joshua H. Stein, by Assistant Attorney General Nicholas R.
        Sanders, for the State.

        Edward Eldred for defendant-appellant.


        TYSON, Judge.


        Michael Jimmy Coleman (“Defendant”) appeals from a judgment entered upon

a jury’s verdict finding him guilty of trafficking opium; possession with intent to

manufacture, sell, and distribute a schedule-III-controlled substance; and to

sell/deliver a schedule-III-controlled substance. We find no error.

                                   I. Background

        A confidential informant (“CI”) worked with the Cleveland County Sherriff’s

Department Narcotics Division Sergeant Travis Hamrick (“Sgt. Hamrick”) to identify
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                                  Opinion of the Court



and provide names of illicit drug dealers located in Cleveland County from whom she

could buy illegal narcotics. The CI informed Sgt. Hamrick that Defendant “was

selling pills, hydrocodone and Xanax in particular.”

      The CI agreed to participate in a controlled buy of narcotics from Defendant on

1 February 2016. Sgt. Hamrick, along with Narcotics Division, Lieutenant Judy

Seagle (“Lt. Seagle”) met the CI in a supermarket’s parking lot in Kings Mountain

near Defendant’s home.

      Sgt. Hamrick and Lt. Seagle confirmed the CI did not have any narcotics on

her person or in her vehicle. The CI was wired with a button camera underneath her

shirt and given a cell phone to record audio. Sgt. Hamrick gave the CI $82.00 in U.S.

currency to purchase the narcotics.

      Sgt. Hamrick and Lt. Seagle followed the CI from the supermarket’s parking

lot to Defendant’s home. The detectives parked at a neighboring home, while the CI

went to Defendant’s home. Once the CI was inside of Defendant’s home, she told

Defendant she needed to buy pills for her brother, who she claimed was waiting back

at the nearby parking lot. Defendant sold the CI six Xanax tablets and five oxycodone

tablets for $80.00.

      After the CI left Defendant’s home, the detectives followed her back to the same

parking lot. The CI gave the six Xanax tablets, five oxycodone tablets, and $2.00 in

change to the detectives. Sgt. Hamrick and Lt. Seagle again searched the CI’s person



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and vehicle to “make sure that she didn’t keep anything.” Laboratory testing later

confirmed the tablets contained alprazolam (Xanax), a schedule-IV-controlled

substance, and dihydrocodeinone, which is hydrocodone, a schedule-III-controlled

substance.

      The CI conducted two further buys from Defendant at his home.              On 4

February 2016, the CI bought twenty hydrocodone tablets for $200.00. Laboratory

tests confirmed the tablets contained hydrocodone and had a total weight of 8.47

grams. On 5 February 2016, the CI purchased an additional twenty hydrocodone

tablets for $160.00. Laboratory testing confirmed the tablets contained hydrocodone

and weighed 8.46 grams.

      The State presented the testimony of Deborah Chancey, an analyst at the

North Carolina State Crime Laboratory. Analyst Chancey selected and analyzed one

tablet that contained dihydrocodeinone or hydrocodone. This tablet weighed “.42

grams, and the net weight of the remaining tablets was 8.05 grams plus or minus

0.03 grams.”

      Sgt. Hamrick and Lt. Seagle visited Defendant at his home on 24 February

2016 to discuss his potential cooperation with the Narcotics Division in their

investigation of his narcotics supplier. During this visit, Defendant allowed the

officers to search his home. Lt. Seagle located a pill bottle with Defendant’s sister’s

name thereon, which contained a “mixture of pills.” Sgt. Hamrick visually inspected



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the pills and found “[s]ome of the pills that were in the bottle were consistent with

what [Defendant] had sold” to the CI in the controlled purchases.

      Defendant was indicted for possession with intent to manufacture, sell, deliver

hydrocodone; selling and delivering hydrocodone, possession with intent to

manufacture, sell, deliver alprazolam; and selling and delivering alprazolam for the

1 February 2016 transactions. Defendant was indicted for two counts of trafficking

opium for the transactions on 4 February and 5 February 2016.

      On 16 April 2019, the jury returned verdicts and convicted Defendant of all

charges, except the trafficking in opium indictment for the 5 February 2016

transaction. Defendant was acquitted of that charge.

      The trial court consolidated the convictions and sentenced Defendant to an

active term of 70 to 93 months of imprisonment on 22 April 2019. The trial court

prepared appellate entries on that same date.

                                     II. Jurisdiction

      The record on appeal does not include any reference to Defendant entering an

oral or written notice of appeal. The trial court’s appellate entries are included. On

30 December 2019, Defendant petitioned this Court to issue a writ of certiorari to

hear his belated appeal. Defendant also filed a motion to amend the record on appeal

to offer proof of his written notice of appeal.




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      A writ of certiorari may be issued “when the right to prosecute an appeal has

been lost by failure to take timely action.” N.C. R. App. P. 21(a)(1). “Certiorari is a

discretionary writ, to be issued only for good and sufficient cause shown.” State v.

Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959) (citation omitted) (alteration

original), cert denied, 362 U.S. 917, 4 L. Ed. 2d 738 (1960).

      In an exercise of discretion, this Court grants Defendant’s petition for writ of

certiorari to hear his belated appeal. This Court possesses jurisdiction pursuant to

N.C. Gen. Stat. § 15A-1444(g) (2019); N.C. R. App. P. 21(a)(1) (“The writ of certiorari

may be issued in appropriate circumstances by either appellate court to permit review

of the judgments and orders of trial tribunals when the right to prosecute an appeal

has been lost by failure to take timely action[.]”).

      Our Supreme Court has held whether to grant or deny a motion to amend the

record is “a decision within the discretion of the Court of Appeals” which constitutes

a legitimate application of our appellate rules absent an “abuse of discretion.” State

v. Petersilie, 334 N.C. 169, 177, 432 S.E.2d 832, 837 (1993). The State argues the

purported document is not an appropriate entry or statement showing an appeal

taken orally. In support of this assertion, the State cites State v. Hughes, wherein

this Court dismissed an appeal because the appealing party failed to comply with

Rule 4 of our Rules of Appellate Procedure. This failure deprived this Court of

jurisdiction to consider the appeal. State v. Hughes, 210 N.C. App. 482, 485, 707



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S.E.2d 777, 778-79 (2011). However, the reasoning in Hughes is distinguishable from

the facts of this case. In Hughes, the defendant did not petition this court for a writ

of certiorari or to amend the record. Id. Contemporaneously filed with this motion to

amend was Defendant’s now-allowed petition for writ of certiorari. Having acquired

jurisdiction, and in the exercise of our discretion, this Court allows Defendant’s

motion to amend the record to reflect his notice of appeal.

                                       III. Issue

      Defendant argues the trial court committed plain error by not instructing the

jury ex mero motu on the lesser-included offense of selling hydrocodone. Defendant

acknowledges he did not request the lesser-included offense and review of this

argument is limited to plain error.

                           IV. Lesser-Included Instruction

                                  A. Standard of Review

      Under our Rules of Appellate Procedure: “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).

      This Court’s review under plain error is “applied cautiously and only in the

exceptional case” where the error “seriously affect[s] the fairness, integrity, or public



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                                   Opinion of the Court



reputation of judicial proceedings” to overcome dismissal for a defendant’s failure to

preserve. State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citation

omitted). To constitute plain error, Defendant carries and maintains the burden to

show “not only that there was error, but that absent the error, the jury probably

would have reached a different result” to demonstrate prejudice. State v. Jordan, 333

N.C. 431, 440, 426 S.E.2d 692, 697 (1993).

                                       B. Analysis

      Defendant argues the trial court plainly erred by not instructing the jury on

the lesser-included offense of selling a controlled substance. Defendant asserts the

State’s evidence conflicted on the weight of the hydrocodone the CI had purchased

from him during the 4 February 2016 transaction.

      Our Supreme Court has held: “Where there is conflicting evidence as to an

essential element of the crime charged, the court should instruct the jury with regard

to any lesser included offense supported by any version of the evidence.” State v. Jones,

304 N.C. 323, 331, 283 S.E.2d 483, 488 (1981) (emphasis original).

      “[O]nly where there is evidence from which the jury reasonably could find that

the defendant committed the lesser offense” is the trial court required to instruct the

jury on a lesser included offense. State v. Bagley, 321 N.C. 201, 210, 362 S.E.2d 244,

249-50 (1987). “If the State’s evidence is sufficient to fully satisfy its burden of

proving each element of the greater offense and there is no evidence to negate those



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elements other than the defendant’s denial that he committed the offense, [the]

defendant is not entitled to an instruction on the lesser offense.” State v. Smith, 351

N.C. 251, 267-68, 524 S.E.2d 28, 40 (2000) (citation omitted).

      To determine if the lesser-included offense instruction is necessary, the test is

“whether the State’s evidence is positive as to each element of the crime charged and

whether there is any conflicting evidence relating to any of these elements.” State v.

Chaves, 246 N.C. App. 100, 103, 782 S.E.2d 540, 543 (2016) (internal citation and

quotation marks omitted).

      Our General Statutes provide a defendant is guilty of trafficking in opium or

heroin when he “sells, manufactures, delivers, transports, or possesses four grams or

more of opium or opiate, or any salt, compound, derivative, or preparation of opium

or opiate . . . including heroin, or any mixture containing such substance.” N.C. Gen.

Stat. § 90-95(h)(4) (2019). “[T]he legislature’s use of the word ‘mixture’ establishes

that the total weight of the dosage units . . . is sufficient basis to charge a suspect

with trafficking.” State v. Jones, 85 N.C. App. 56, 68, 354 S.E.2d 251, 258 (1987). The

two essential elements of trafficking in opium are a defendant must (1) knowingly

sell (2) a specified amount of opium (or any preparation thereof). State v. Hunt, 249

N.C. App. 428, 432, 790 S.E.2d 874, 878 (2016).

      Our Supreme Court has held “tablets and pills of prescription pharmaceutical

drugs” are mixtures under N.C. Gen. Stat. § 90-95(h)(4). State v. Ellison, 366 N.C.



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439, 444, 738 S.E.2d 161, 163-64 (2013). A defendant’s criminal liability under N.C.

Gen. Stat. § 90-95(h)(4) is “based on the total weight of the mixture involved.” Id. at

440, 738 S.E.2d at 162. The total weight of the pills or tablets determines whether

the amount possessed constitutes trafficking. See id.

      Analyst Chancey testified the total weight of the twenty tablets from the 4

February purchase weighed 8.47 grams, plus or minus 0.03 grams. Defendant argues

the CI’s testimony that she had purchased “$200 worth of pain pills, 20 of them, 10-

milligram hydrocodone” provides sufficient conflicting evidence to require the trial

court to issue the lesser-included instruction ex mero motu.

      This testimony does not create a conflict to warrant the lesser-included

instruction. The “10-milligram hydrocodone” merely relates to the dosage or strength

of the hydrocodone, the active ingredient in the tablets. Under Ellison, the total

weight of the pills is considered to determine whether the statutory threshold is met,

not just the weight of the active ingredient. Ellison, 366 N.C. at 442, 738 S.E.2d at

163-64. The CI was not referencing the total weight. Analyst Chancey’s testimony

provided the total weight of the tablets from her laboratory analysis to meet the

State’s burden.

      The evidence presented at trial tended to show Defendant sold to the CI twenty

tablets containing hydrocodone weighing a total of 8.47 grams, satisfying all essential

elements of the trafficking in opium charge from the 4 February 2016 incident. We



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find no error, and certainly no plain error, in the trial court not instructing the jury

ex mero motu on the lesser-included offense of selling a controlled substance.

Defendant’s argument for plain error review is overruled.

                                     V. Conclusion

      Defendant’s argument that the trial court committed any error, including plain

error, by not instructing the jury ex mero motu on the lesser-included offense of selling

a controlled substance is without merit. Defendant received a fair trial, free from

prejudicial errors he preserved or argued. We find no error in the jury’s verdicts or in

the judgment entered upon. It is so ordered.

      NO ERROR.

      Judges ZACHARY and BROOK concur.




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