              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA18-9

                                Filed: 2 October 2018

Randolph County, No. 14 CRS 55829

STATE OF NORTH CAROLINA

             v.

SHELLEY ANNE OSBORNE


      Appeal by defendant from judgments entered 21 February 2018 by Judge

Edwin G. Wilson Jr. in Randolph County Superior Court. Heard in the Court of

Appeals 20 August 2018.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Alesia
      Balshakova, for the State.

      Meghan Adelle Jones for defendant.


      DIETZ, Judge.


      Defendant Shelley Anne Osborne appeals her conviction for possession of

heroin. Law enforcement found Osborne unconscious in a hotel room and, after

emergency responders revived her, she admitted she used heroin. Officers searched

the hotel room and found syringes, spoons with burn marks and residue, and a rock-

like substance.

      The State did not have the substance tested using a scientifically valid

chemical analysis. Instead, at trial the State relied on Osborne’s statement to officers
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                                   Opinion of the Court



that she used heroin, as well as officers’ descriptions of the rock-like substance and

the results of field tests on the substance, including one performed in open court.

      As explained below, the State’s evidence was insufficient to survive a motion

to dismiss. The State relies on a series of Supreme Court cases, later synthesized in

this Court’s decision in State v. Bridges, __ N.C. App. __, 810 S.E.2d 365 (2018),

concerning the defendant’s own identification of the seized substance. Here, by

contrast, Osborne never identified the seized substance as heroin—she told officers

only that she had used heroin before losing consciousness. Although the State’s

evidence strongly suggests the seized substance was heroin, that evidence was not

enough “to establish the identity of the controlled substance beyond a reasonable

doubt” and thus the State was required to present “some form of scientifically valid

chemical analysis” to survive a motion to dismiss. State v. Ward, 364 N.C. 133, 147,

694 S.E.2d 738, 747 (2010). Because the State acknowledges that it did not present

any scientifically valid chemical analysis at trial, we vacate the trial court’s judgment

on this count.

                          Facts and Procedural History

      On 17 November 2014, police responded to a call about a possible overdose in

a hotel room. After arriving at the hotel room, officers found Defendant Shelley Anne

Osborne in the bathroom. She was unconscious, unresponsive, and turning blue.

Osborne    regained   consciousness    after    emergency   responders    arrived    and



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administered an anti-overdose drug. When Osborne regained consciousness, she told

an officer that she “had ingested heroin.”

      The responding officers searched the hotel room and found Osborne’s two

children, who were around four or five years old. The officers also found multiple

syringes, spoons with burn marks and residue on them, and a rock-like substance

that appeared to be heroin. An officer conducted a field test on the rock-like

substance, which yielded a “bluish color,” indicating a “positive reading for heroin.”

      On 14 September 2015, the State indicted Osborne for possession of heroin and

two counts of misdemeanor child abuse. At trial, one of the responding officers

testified about discovering Osborne unconscious in the hotel room and her admission

that she had used heroin. The officer also described the rock-like substance, including

how it resembled heroin; explained the results of the field test indicating the

substance was heroin; and discussed how other objects found in the hotel room,

including the syringes and spoons, were common paraphernalia used to inject heroin.

The officer also performed a field test on the substance seized from the hotel room in

open court and displayed the results, which indicated the substance was heroin, to

the jury. Osborne did not object to the in-court field test. Osborne also did not present

any evidence in her defense. She moved to dismiss the charges at the close of the

evidence. The trial court denied the motion.




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      The jury convicted Osborne on all charges, and the trial court sentenced her to

6 to 17 months in prison for possession of heroin and a consecutive sentence of 60

days for the two counts of misdemeanor child abuse. The trial court suspended both

sentences. Osborne appealed.

                                      Analysis

      Osborne argues that the trial court erred in denying her motion to dismiss the

possession of heroin charge because the State failed to present sufficient evidence

that the seized substance was heroin. As explained below, we agree that the evidence

presented was insufficient but recognize that this issue is unsettled and may merit

further review in our Supreme Court.

      “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). “Upon defendant’s

motion for dismissal, the question for the Court is whether there is substantial

evidence (1) of each essential element of the offense charged, or of a lesser offense

included therein, and (2) of defendant’s being the perpetrator of such offense. If so,

the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451,

455 (2000). “Substantial evidence is such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–

79, 265 S.E.2d 164, 169 (1980).




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      In a drug possession case, “the burden is on the State to establish the identity

of any alleged controlled substance that is the basis of the prosecution.” State v. Ward,

364 N.C. 133, 147, 694 S.E.2d 738, 747 (2010). “Unless the State establishes before

the trial court that another method of identification is sufficient to establish the

identity of the controlled substance beyond a reasonable doubt, some form of

scientifically valid chemical analysis is required.” Id.

      The State concedes that, other than the field tests conducted by the arresting

officers, the State did not conduct any forensic analysis that identified the rock-like

substance seized from Osborne’s hotel room as heroin. The State also concedes—or,

at least, does not dispute—that the field tests officers conducted at the scene and

later at trial are not scientifically valid chemical analyses sufficient to support a

conviction.

      Instead, the State argues that this case is controlled by a line of decisions from

our Supreme Court involving the defendant’s identification of the controlled

substance. First, in State v. Nabors, 365 N.C. 306, 718 S.E.2d 623 (2011), and State

v. Williams, 367 N.C. 64, 744 S.E.2d 125 (2013), the Supreme Court held that a

defense witness’s in-court testimony identifying a substance as cocaine was sufficient

to overcome a motion to dismiss even in the absence of forensic analysis. Then, in

State v. Ortiz-Zape, 367 N.C. 1, 743 S.E.2d 156 (2013), the Supreme Court held that

an officer’s testimony concerning the defendant’s out-of-court identification of the



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substance as cocaine, combined with the officer’s own testimony that the substance

appeared to be cocaine, was sufficient to survive a motion to dismiss.

      Recently, this Court attempted to synthesize this line of cases into a coherent

rule of law. State v. Bridges, __ N.C. App. __, 810 S.E.2d 365 (2018). In Bridges, the

defendant told a law enforcement officer that she had “a bagg[ie] of meth hidden in

her bra,” and the officer then found a “meth-like” substance in a baggie in the

defendant’s bra. Id. at __, 810 S.E.2d at 366. At trial, the officer described the

defendant’s statements and the discovery of the baggie. Id. We held that “the

arresting officer’s testimony offered without objection during the State’s evidence”

was sufficient to meet the State’s burden of proof and send the issue to the jury. Id.

at __, 810 S.E.2d at 367–68.

      The State argues that this case is controlled by Bridges but there is a key

factual distinction between this case and the Bridges line of cases. In all of the earlier

cases—Nabors, Williams, Ortiz-Zape, and Bridges—the defendants’ statements (or

those of another defense witness) identified the substance seized by law enforcement

as a controlled substance. Here, by contrast, Osborne did not identify the seized

substance as heroin. Instead, after officers discovered her unconscious in a hotel room

and emergency responders administered an anti-overdose medication to revive her,

Osborne told the officers that she had ingested heroin. The officers independently




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searched the hotel room and recovered drug paraphernalia and a rock-like substance

believed to be heroin.

      We are reluctant to further expand the Bridges holding to apply in cases where

the defendant did not actually identify the seized substance. To be sure, the State’s

evidence strongly suggests the seized substance was heroin—Osborne admitted she

used heroin, there was drug paraphernalia in the hotel room consistent with heroin

use, the rock-like substance found in the hotel room matched the general description

of heroin, and a field test indicated the substance was heroin.

      But the question is not whether the State’s evidence was strong, but whether

that evidence “establish[ed] the identity of the controlled substance beyond a

reasonable doubt,” thus eliminating the need for a scientifically valid chemical

analysis. Ward, 364 N.C. at 147, 694 S.E.2d at 747. We are unwilling to hold that it

does. After all, there are other controlled substances that appear as a white or gray

rock-like substance. See, e.g., Nabors, 365 N.C. at 308, 718 S.E.2d at 624; State v.

Hicks, 243 N.C. App. 628, 630, 777 S.E.2d 341, 343 (2015); State v. Mobley, 206 N.C.

App. 285, 292, 696 S.E.2d 862, 867 (2010); State v. McNeil, 165 N.C. App. 777, 779,

600 S.E.2d 31, 33 (2004), aff’d, 359 N.C. 800, 617 S.E.2d 271 (2005). And the drug

paraphernalia seized from the hotel room can be used in connection with other

controlled substances. See, e.g., State v. Wiggins, 185 N.C. App. 376, 380, 648 S.E.2d

865, 869 (2007); State v. Muncy, 79 N.C. App. 356, 358, 339 S.E.2d 466, 468 (1986).



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      Simply put, if we held that the State’s evidence in this case was sufficient to

show the seized substance was heroin “beyond a reasonable doubt,” it likely would

eliminate the need for scientifically valid chemical analysis in many—perhaps most—

drug cases. This, in turn, would render our Supreme Court’s holding in Ward largely

irrelevant. This Court has no authority to undermine a Supreme Court holding in

that way. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). If the

Bridges line of cases warrants further expansion—and further eroding of Ward—that

change in the law must come from the Supreme Court.

      Applying Ward here, the State’s evidence did not establish beyond a reasonable

doubt that the seized substance was heroin. 364 N.C. at 147, 694 S.E.2d at 747. Thus,

the State was required to present scientifically valid chemical analysis identifying

the seized substance as heroin. Id. The State concedes it did not do so. Accordingly,

the trial court should have granted Osborne’s motion to dismiss for insufficient

evidence.

      Because we rule in Osborne’s favor on this issue, we need not address her

remaining arguments concerning her conviction on the drug possession charge.

Osborne also challenges her convictions for misdemeanor child abuse on the ground

that “the indictments for misdemeanor child abuse allege that Ms. Osborne used

‘heroin in the presence of the child.’” Osborne argues that the State was required to

prove the seized substance was heroin to support these charges as well. We disagree.



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                                   Opinion of the Court



Unlike the drug possession charge, the misdemeanor child abuse charges did not

require the State to present a chemical analysis proving the seized substance was

heroin. The State’s evidence, including the officers’ discovery of Osborne unconscious

from an apparent drug overdose; Osborne’s admission that she used heroin; and the

presence of drug paraphernalia consistent with heroin use in the hotel room occupied

by Osborne and her children was sufficient to send these charges to the jury.

Likewise, in light of the State’s other evidence, the admission of the in-court field test

of the seized substance—even if erroneous—was harmless and certainly did not rise

to the level of plain error. State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334

(2012). We therefore find no error in the trial court’s judgment on the misdemeanor

child abuse charges.

                                      Conclusion

      For the reasons discussed above, we vacate the trial court’s judgment on the

possession of heroin charge and find no error in the trial court’s judgment on the

misdemeanor child abuse charges.

      VACATED IN PART; NO ERROR IN PART.

      Chief Judge McGEE and Judge CALABRIA concur.




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