             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA15-1001

                                Filed: 5 April 2016

Henderson County, No. 13CRS491–92

STATE OF NORTH CAROLINA

            v.

TODD STIMSON, Defendant.


      Appeal by defendant from Order entered 26 March 2015 by Judge Mark E.

Powell in Henderson County Superior Court. Heard in the Court of Appeals 10

February 2016.


      Attorney General Roy Cooper, by Assistant Attorney General Perry J. Pelaez, for
      the State.

      Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for defendant.


      ELMORE, Judge.


      Todd Stimson (defendant) was found guilty of trafficking in marijuana by

possessing more than ten pounds and trafficking in marijuana by manufacturing

more than ten pounds under N.C. Gen. Stat. § 90-95(h). On appeal, defendant argues

that the trial court erred in quashing a subpoena he issued to a North Carolina

Department of Revenue employee and that he received ineffective assistance of

counsel (IAC). We conclude the trial court did not abuse its discretion in quashing

the subpoena, and we therefore affirm. We dismiss without prejudice the IAC claim.
                                  STATE V. STIMSON

                                   Opinion of the Court



                                   I. Background

      The State’s evidence tended to show the following: On 8 August 2011, the

Fletcher Police Department received an anonymous call about illegal activity

occurring at defendant’s address. The next day, Fletcher police officers “conducted a

garbage pull . . . to see if there was anything in the garbage that would indicate there

was marijuana being grown or any illegal activity occurring based on the complaint.”

After not finding any incriminating evidence, officers did not continue to actively

investigate defendant.

      Nearly two years later, officers performed four garbage pulls in June 2013 and

one in July 2013. They found “rolling papers,” “roaches,” and “trim waste.” After the

trim waste tested positive for marijuana, Erik Sumney, Chief of Police, and Detective

Daniel Barale obtained a search warrant for defendant’s property, which they

executed on 11 July 2013.       Officers seized seventy-five marijuana plants from

defendant’s barn, one container of marijuana from defendant’s home, and two plastic

bags of marijuana from defendant’s freezer. Officers transported the evidence to the

North Carolina State Crime Lab. Drug chemistry analyst Julie Gillette tested and

weighed three of the ten items of evidence pursuant to the lab threshold sampling

selection requirements. The lab report indicates that the three items analyzed tested

positive for marijuana and weighed 5.31 kilograms or 11.7 pounds.

      On 29 July 2013, defendant was indicted on one count of trafficking in



                                          -2-
                                 STATE V. STIMSON

                                 Opinion of the Court



marijuana by possessing more than ten pounds and one count of trafficking in

marijuana by manufacturing more than ten pounds. The case came on for trial on 23

March 2015 in Henderson County Superior Court. That same day, defendant served

North Carolina Department of Revenue employee George Valsame with a subpoena

to testify at the trial and produce “[a]ll documents related to the Unauthorized

Substance Tax action against [defendant].”

      Valsame, through counsel from the North Carolina Attorney General’s Office,

moved to quash the subpoena claiming it required disclosure of protected matter and

testimony that was prohibited by statute. The trial court allowed the motion and

quashed the subpoena. Defendant did not put on any evidence and was found guilty

of both charges. The Honorable Mark E. Powell sentenced defendant to twenty-five

to thirty-nine months imprisonment and recommended work release. Defendant

appeals.

                                    II. Analysis

A. Quashed Subpoena
      Defendant argues the trial court’s decision to quash the subpoena violated his

right under the federal and state constitutions to call witnesses in his defense.

Defendant, however, did not raise his constitutional argument in the trial court, and

it may not be considered for the first time on appeal. Fields v. McMahan, 218 N.C.

App. 417, 419, 722 S.E.2d 793, 794 (2012).

      Defendant next argues that the “trial court abused its discretion by acting

                                        -3-
                                  STATE V. STIMSON

                                  Opinion of the Court



under a misapprehension of the law that led it to conclude that it had no discretion

to exercise.” He contends that N.C. Gen. Stat. § 105-113.112 only prevents the

prosecutor, not a defendant, from calling a Department of Revenue employee to

testify.

       “A motion to quash a subpoena is addressed to the sound discretion of the trial

court and is not subject to review absent a showing of an abuse of discretion.” State

v. Hurt, ___ N.C. App. ___, ___, 760 S.E.2d 341, 348 (July 15, 2014) (No. COA09-442-

2) (citing State v. Newell, 82 N.C. App. 707, 709, 348 S.E.2d 158, 160 (1986)), review

denied, 367 N.C. 807, 766 S.E.2d 679 (2014). “An abuse of discretion occurs only

where a trial court’s ruling was ‘manifestly unsupported by reason or [was] so

arbitrary that it could not have been the result of a reasoned decision.’ ” Id. at ___.

760 S.E.2d at 348 (quoting State v. White, 349 N.C. 535, 552, 508 S.E.2d 253, 264

(1998)). “In exercising that discretion, the trial judge should consider the relevancy

and materiality of the items called for, the right of the subpoenaed person to withhold

production on other grounds, such as privilege, and also the policy against ‘fishing

expeditions.’ ” Newell, 82 N.C. App. at 709, 348 S.E.2d at 160.

       Under N.C. Gen. Stat. § 105-113.107 (2011), titled, “Excise tax on unauthorized

substances,” an excise tax is levied on controlled substances possessed by dealers.

The North Carolina Department of Revenue issues revenue stamps to affix to

unauthorized substances to indicate payment of the tax, and dealers report the taxes



                                         -4-
                                       STATE V. STIMSON

                                       Opinion of the Court



paid via an unauthorized substance tax return. N.C. Gen. Stat. § 105-113.108 (2011).

Dealers are not required to give their name, address, social security number, or other

identifying information on the return. Id. Here, revenue stamps were affixed to some

of the marijuana plants seized from defendant’s property.

       At issue here is N.C. Gen. Stat. § 105-113.112, titled, “Confidentiality of

information.” Both the State and defendant refer to the amended version, which took

effect on 23 August 2013,1 and relevant to defendant’s argument added the words,

“by a prosecutor.” However, because defendant was indicted on 29 July 2013, the

amendments would not apply in his trial. State v. Gamez, 228 N.C. App. 329, 332,

745 S.E.2d 876, 878 (2013) (“A criminal action arises when the defendant is indicted.”)

(citing State v. Williams, 151 N.C. 660, 660, 65 S.E. 908, 909 (1909)); see also State v.

McGraw, COA 15-6, 2015 WL 6163958, (N.C. Ct. App. Oct. 20, 2015) (“Therefore,

because Defendant’s indictment predated the effective date of the amendments to

Rule 702, we must apply the former version of Rule 702.”).

       Accordingly, as of the date of defendant’s indictment, N.C. Gen. Stat. § 105-

113.112 (2011) stated,

               Information obtained by the Department in the course of
               administering the tax imposed by this Article, including


1 N.C. Gen. Stat. § 105-113.112 (2013) (“Information obtained by the Department from the taxpayer
in the course of administering the tax imposed by this Article, including information on whether the
Department has issued a revenue stamp to a person, may not be used as evidence, as defined in G.S.
15A-971, by a prosecutor in a criminal prosecution of the taxpayer for an offense related to the
manufacturing, possession, transportation, distribution, or sale of the unauthorized substance.”)
(emphasis added).

                                               -5-
                                  STATE V. STIMSON

                                  Opinion of the Court



             information on whether the Department has issued a
             revenue stamp to a person, is confidential tax information
             and is subject to the following restrictions on disclosure:

             (1) G.S. 105-259 prohibits the disclosure of the information,
             except in the limited circumstances provided in that
             statute.

             (2) The information may not be used as evidence, as defined
             in G.S. 15A-971, in a criminal prosecution for an offense
             other than an offense under this Article or under Article 9
             of this Chapter. Under this prohibition, no officer,
             employee, or agent of the Department may testify about the
             information in a criminal prosecution for an offense other
             than an offense under this Article or under Article 9 of this
             Chapter. This subdivision implements the protections
             against double jeopardy and self-incrimination set out in
             Amendment V of the United States Constitution and the
             restrictions in it apply regardless of whether information
             may be disclosed under G.S. 105-259. This subdivision
             does not apply to information obtained from a source other
             than an employee, officer, or agent of the Department. This
             subdivision does not prohibit testimony by an officer,
             employee, or agent of the Department concerning an
             offense committed against that individual in the course of
             administering this Article. An officer, employee, or agent
             of the Department who provides evidence or testifies in
             violation of this subdivision is guilty of a Class 1
             misdemeanor.

N.C. Gen. Stat. § 105-113.112 (2011).
      Here, defendant subpoenaed Valsame, a North Carolina Department of

Revenue employee, to testify at the trial and produce “[a]ll documents related to the

Unauthorized Substance Tax action against [defendant].” After hearing arguments

from both the State and defendant on sections 105-259 and 105-113.112, the trial

court allowed Valsame’s motion to quash the subpoena. We cannot say that the trial

                                         -6-
                                  STATE V. STIMSON

                                   Opinion of the Court



court’s decision to quash the subpoena was “manifestly unsupported by reason or

[was] so arbitrary that it could not have been the result of a reasoned decision.” Hurt,

___ N.C. App. at ___, 760 S.E.2d at 348.

      N.C. Gen. Stat. § 105-113.112 (2011) clearly states that information obtained

by the Department of Revenue in the course of administering the unauthorized

substances tax is confidential tax information and cannot be used as evidence in a

criminal prosecution. No employee of the Department may testify about the

information in a criminal prosecution regardless of whether the information may be

disclosed under N.C. Gen. Stat. § 105-259. Id. (emphasis added). We conclude that

the trial court properly considered “the relevancy and materiality of the items called

for, [and] the right of the subpoenaed person to withhold production,” and, in its

discretion, decided to quash the subpoena. Newell, 82 N.C. App. at 709, 348 S.E.2d

at 160.

B. Ineffective Assistance of Counsel
      “The two-part test for ineffective assistance of counsel is the same under both

the state and federal constitutions.” State v. Thompson, 359 N.C. 77, 115, 604 S.E.2d

850, 876 (2004) (citing State v. Braswell, 312 N.C. 553, 562–63, 324 S.E.2d 241, 248

(1985)). “A defendant must first show that his defense counsel’s performance was

deficient and, second, that counsel’s deficient performance prejudiced his defense.”

Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)).

“Deficient performance may be established by showing that counsel’s representation

                                           -7-
                                  STATE V. STIMSON

                                   Opinion of the Court



fell below an objective standard of reasonableness.” Id. (citations and quotations

omitted). “Generally, to establish prejudice, a defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. (citations and quotations omitted).

       Defendant argues that his attorney’s performance was deficient because he

breached his duty to conduct an adequate pre-trial investigation. Defendant claims

that this deficient performance prejudiced his defense because a “pre-trial

investigation of the plant material would have enabled [defendant] to successfully

keep State’s Exhibit 1 out of evidence.” The State argues that the cold record is

insufficient to evaluate defendant’s claim because a “review of the record and the

transcript does not reveal whether the failure to examine the marijuana prior to trial

was the result of trial tactics, strategy, lack of preparation or unfamiliarity with the

legal issues.”

       “IAC claims brought on direct review will be decided on the merits when the

cold record reveals that no further investigation is required, i.e., claims that may be

developed and argued without such ancillary procedures as the appointment of

investigators or an evidentiary hearing.” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d

500, 524 (2001). However, “should the reviewing court determine that IAC claims

have been prematurely asserted on direct appeal, it shall dismiss those claims

without prejudice to the defendant’s right to reassert them during a subsequent



                                          -8-
                                  STATE V. STIMSON

                                  Opinion of the Court



[motion for appropriate relief] proceeding.” Id. at 167, 557 S.E.2d at 525.

      Here, we determine that this claim has been brought prematurely and we

dismiss it without prejudice. See State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271,

286 (2006) (“[W]hen it appears to the appellate court further development of the facts

would be required before application of the Strickland test, the proper course is for

the Court to dismiss the defendant’s assignments of error without prejudice.”).

                                  III. Conclusion

      The trial court did not abuse its discretion in quashing defendant’s subpoena.

We dismiss without prejudice defendant’s IAC claim.

      AFFIRMED.

      Judges STROUD and DIETZ concur.




                                         -9-
