              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-470

                               Filed: 6 February 2018

Nash County, No. 15 CRS 52120

STATE OF NORTH CAROLINA

             v.

ROBERT LINDSEY COLEY, JR.


      Appeal by defendant from judgment entered 12 September 2016 by Judge

Quentin T. Sumner in Nash County Superior Court. Heard in the Court of Appeals

2 November 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Laura H.
      McHenry and Assistant Attorney General Kristen Jo Uicker, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Wyatt
      Orsbon, for defendant-appellant.


      DAVIS, Judge.


      In this appeal, we once again address the quantum of proof necessary for a

defendant to be lawfully convicted of possession with intent to sell or deliver

marijuana. The evidence at trial established that the defendant’s vehicle contained

11.5 grams of marijuana packaged in two sandwich bags, a digital scale, and 23 other

loose sandwich bags. Because we conclude that the evidence — when viewed in the

light most favorable to the State — was sufficient for a reasonable juror to have found

him guilty of this offense, we affirm the defendant’s convictions.
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                                   Opinion of the Court



                      Factual and Procedural Background

      The State introduced evidence at trial tending to establish the following facts:

On 29 May 2015, Officer Miles Costa of the Nashville Police Department was driving

his patrol vehicle on the east side of Nashville, North Carolina when he noticed

expired tags on a car being driven by Robert Lindsey Coley, Jr. (“Defendant”). After

verifying that the vehicle’s registration was expired, Officer Costa pulled over

Defendant’s car and approached the driver’s side.

      Defendant told Officer Costa that he did not have his driver’s license with him

and that he could not find his registration card. While speaking to Defendant, Officer

Costa smelled the odor of marijuana and asked him to exit the vehicle. Officer Costa

then asked Defendant if he had any marijuana in the car, and Defendant responded

that there was some in the glove compartment. Defendant was placed in handcuffs

while Officer Costa conducted a search of the vehicle. He found a sandwich bag

containing 8.6 grams of marijuana in the glove compartment. Upon returning to his

patrol vehicle to weigh the marijuana, Officer Costa was informed by Defendant that

there was also a digital scale in the center console of the car.

      By this time, another officer had arrived on the scene, and the two officers

searched the vehicle together. They found a digital scale, another sandwich bag

containing 2.9 grams of marijuana, and two partially smoked marijuana cigars in the

center console. Thirteen Dutch Masters cigar wrappers, along with one unopened



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package of cigars, were discovered elsewhere in the car. The officers found a box of

sandwich bags in the backseat that had been opened along with 23 loose sandwich

bags strewn throughout the vehicle.

      Defendant also had over $800 in cash on his person. He informed the officers

that he had just cashed his paycheck, and Officer Costa found a pay stub in the

vehicle.

      Defendant told the officers that he kept the scale in his car to ensure that he

actually received from his sellers the precise amount of marijuana that he had

purchased so as to avoid being “ripped off.” He further stated that the sandwich bags

were in his vehicle because “his drug dealers were cheap and . . . [h]e had to provide

his own bags.”

      Defendant was indicted by a Nash County grand jury on 5 October 2015 on the

charges of possession with intent to sell and deliver marijuana and possession of

marijuana paraphernalia. A jury trial was held beginning on 29 August 2016 before

the Honorable Quentin T. Sumner.

      Officer Costa testified on direct examination, in pertinent part, as follows:

                   [PROSECUTOR]: Now, I want to talk about your
             law enforcement experience and training. You testified
             that this substance was marijuana. Have you had any
             particular training in the identification of marijuana?

                   [OFFICER COSTA]: Yes, ma’am.

                   [PROSECUTOR]: Please explain that training for


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us.

       [OFFICER COSTA]: We -- we go through a -- we go
to a control room, controlled area, controlled classroom and
marijuana’s presented to us in big amounts, small
amounts. And the smell, we’re allowed to smell it. We’re
allowed to touch it. We’re allowed to feel it. Everything
like that.

       ....

      [PROSECUTOR]: . . . Are you familiar with how
marijuana is commonly sold?

       [OFFICER COSTA]: Yes, ma’am.

       [PROSECUTOR]: Tell me about that.

       [OFFICER COSTA]: Marijuana is, majority of the
time, commonly sold in your nickel bags or your dime bags.

       [PROSECUTOR]: Tell me what exactly is a nickel
bag?

       [OFFICER COSTA]: A nickel bag is .5 grams of
marijuana. Usually costs, depending on the grade of
marijuana, $5. A dime bag would be $10 and that is a --
that’s one gram of marijuana.

       [PROSECUTOR]: And in selling those quantities,
how are they typically packaged? Or how is the marijuana
typically packaged?

     [OFFICER COSTA]:             They’re packaged in a
sandwich bag.

       ....

      [PROSECUTOR]: Tell me why you chose to charge
the Defendant with possession with intent to sell or deliver


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            versus just possessing the marijuana?

                  [OFFICER COSTA]: Yes, ma’am; the -- with the
            amount of marijuana and the two individual bags,
            normally if somebody is going to have a large amount of
            marijuana, they’re going to have it one [sic] bag. The two
            - - two separate bags, the amount of marijuana, the
            sandwich bags all over the vehicle, the drug scale[.]

                   ....

                   [PROSECUTOR]: Now, you said that you took the
            amount, the way it was divided and packaged and the
            sandwich bags and the scale as factors that went towards
            your charging. Now, [Defendant] offered an explanation
            that [Defendant’s counsel] has presented to the jury. Was
            that explanation not sufficient enough to deter you from
            charging the possession with intent to sell or deliver?

                  [OFFICER COSTA]: Yes, ma’am. The explanation
            did not make any sense to me. I’ve never heard it before
            coming from anybody else. Normally, people who have
            marijuana inside of the vehicle do not have several
            sandwich bags inside of the vehicle.

      At the close of the State’s evidence, Defendant moved to dismiss the charge of

possession of marijuana with intent to sell or deliver based on insufficiency of the

evidence. The trial court denied his motion.

      During Defendant’s case-in-chief, the following exchange occurred between

Defendant and his attorney:

                  [DEFENDANT’S COUNSEL]: What’s the deal with
            the sandwich bags?

                  [DEFENDANT]: The dealers who I was dealing
            with they just wouldn’t have them, they wouldn’t supply


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            them. They would say they don’t want to risk having them
            and stuff like that. They just wouldn’t have them, so I
            would use it to what I would pick a week [sic] to put them
            into the bag.

                   ....

                  [DEFENDANT’S COUNSEL]: Now, why did you
            have -- also found in your car was a scale. Why did you
            have the scale?

                    [DEFENDANT]: To make sure I was getting what I
            was purchasing. I mean, people that I’m dealing with, it’s
            not like it’s a pre-packaged product where I’m going to
            know exactly what I’m getting is what they’re telling me.
            So I would check it to make sure that it is what they say it
            is, the amount wise.

                   ....

                  [DEFENDANT’S COUNSEL]: Why did you have
            two bags?

                   [DEFENDANT]:        One of them I actually had
            forgotten about. . . .

                   [DEFENDANT’S COUNSEL]: Why -- how did you
            forget about a bag of marijuana?

                  [DEFENDANT]: It just wasn’t good quality and I
            ended up buying something else and I guess I just forgot it
            was in there.

      Defendant renewed his motion to dismiss at the close of all the evidence, and

the trial court once again denied his motion. On 30 August 2016, the jury convicted

him of both charges. The trial court consolidated the convictions and sentenced

Defendant to a term of imprisonment between 6 and 17 months, suspended the


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sentence, and placed him on supervised probation for 18 months. Defendant gave

oral notice of appeal in open court prior to the entry of the judgment.

                                        Analysis

I.   Appellate Jurisdiction

      As an initial matter, we must determine whether we possess jurisdiction over

this appeal. Rule 4(a) of the North Carolina Rules of Appellate Procedure states, in

pertinent part, as follows:

                    (a) Manner and time. Any party entitled by law to
             appeal from a judgment or order of a superior or district
             court rendered in a criminal action may take appeal by:

                    (1) giving oral notice of appeal at trial . . . .

N.C. R. App. P. 4(a).

      Here, Defendant gave oral notice of appeal in open court after the jury returned

its verdict but prior to the entry of judgment by the trial court. Thus, because he did

not give notice of his appeal following entry of the judgment, his right to appeal has

been lost based on his failure to comply with Rule 4(a). See State v. Robinson, 236

N.C. App. 446, 448, 763 S.E.2d 178, 179 (2014) (right of appeal lost where Defendant

“gave notice of appeal in open court following the jury’s verdict, but failed to give

notice of appeal following entry of the trial court’s final judgment”), aff’d as modified,

368 N.C. 402, 777 S.E.2d 755 (2015).




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       Defendant has filed a petition for writ of certiorari requesting appellate review

of his convictions in the event that his notice of appeal is deemed by this Court to be

defective. Pursuant to Rule 21(a)(1) of the Appellate Rules, this Court may, in its

discretion, grant a petition for writ of certiorari and review an order or judgment

entered by the trial court “when the right to prosecute an appeal has been lost by

failure to take timely action. . . .” N.C. R. App. P. 21(a)(1).

       Here, the State does not contend that it was misled by Defendant's defective

notice of appeal and acknowledges that it is within this Court's discretion to allow

the petition. See State v. Springle, __ N.C. App. __, __, 781 S.E.2d 518, 521 (2016)

(“[A] defect in a notice of appeal should not result in loss of the appeal as long as the

intent to appeal can be fairly inferred from the notice and the appellee is not misled

by the mistake.” (quotation marks, ellipsis, and citation omitted)).

       In our discretion, we elect to grant Defendant's petition for writ of certiorari

and proceed to address the merits of his argument. See Robinson, 236 N.C. App. at

448, 763 S.E.2d at 180 (granting defendant’s petition for certiorari where oral notice

of appeal was given after jury verdict but prior to entry of judgment).

II.   Denial of Motion to Dismiss

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

his motion to dismiss the possession with intent to sell or deliver marijuana charge.




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His primary contention is that the quantity of marijuana found in his vehicle was too

small to allow this charge to be submitted to the jury.

      “A trial court’s denial of a defendant’s motion to dismiss is reviewed de novo.”

State v. Watkins, __ N.C. App. __, __, 785 S.E.2d 175, 177 (citation omitted), disc.

review denied, 369 N.C. 40, 792 S.E.2d 508 (2016). On appeal, this Court must

determine “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[.]” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (citation

omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (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). Evidence must be viewed in the light most favorable to the

State with every reasonable inference drawn in the State’s 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). “Contradictions and discrepancies are for the jury to resolve and do not

warrant dismissal.” Smith, 300 N.C. at 78, 265 S.E.2d at 169.

      Pursuant to N.C. Gen. Stat. § 90-95, “the offense of possession with intent to

sell or deliver has three elements: (1) possession; (2) of a controlled substance; with

(3) the intent to sell or deliver that controlled substance.” State v. Blakney, 233 N.C.

App. 516, 519, 756 S.E.2d 844, 846 (citation omitted), disc. review denied, 367 N.C.



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522, 762 S.E.2d 204 (2014). We have held that while “intent to sell or deliver may be

shown by direct evidence, it is often proven by circumstantial evidence from which it

may be inferred.” State v. Wilkins, 208 N.C. App. 729, 731, 703 S.E.2d 807, 809 (2010)

(brackets, quotation marks, and citation omitted). Such intent “may be inferred from

(1) the packaging, labeling, and storage of the controlled substance, (2) the

defendant’s activities, (3) the quantity found, and (4) the presence of cash or drug

paraphernalia.” State v. Nettles, 170 N.C. App. 100, 106, 612 S.E.2d 172, 176 (citation

omitted), disc. review denied, 359 N.C. 640, 617 S.E.2d 286 (2005). Although the

“quantity of the controlled substance alone may suffice to support the inference of an

intent to transfer, sell, or deliver, it must be a substantial amount.” Wilkins, 208

N.C. App. at 731, 703 S.E.2d at 810 (quotation marks and citation omitted).

      It is instructive to examine prior cases from our appellate courts on this issue.

In Blakney, the defendant’s vehicle contained 84.8 grams of marijuana packaged in a

number of containers, including “two sandwich bags, four ‘dime bags,’ and five other

types of bags.” Blakney, 233 N.C. App. at 520, 756 S.E.2d at 847. Additionally, a box

of sandwich bags, a digital scale, and a “large amount of cash” were discovered in the

car. Id. at 517, 756 S.E.2d at 845. We held that the evidence was sufficient to survive

a motion to dismiss, concluding as follows:

             [T]he manner in which the marijuana was packaged (such
             as four “dime bags”) raised more than an inference that
             defendant intended to sell or deliver the marijuana.
             Further, the presence of items commonly used in


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             packaging and weighing drugs for sale — a box of sandwich
             bags and [a] digital scale[ ] — along with a large quantity
             of cash in small denominations provided additional
             evidence that defendant intended to sell or deliver
             marijuana, as opposed to merely possessing it for his own
             personal use[.]

Id. at 520, 756 S.E.2d at 847.

      State v. Williams, 71 N.C. App. 136, 321 S.E.2d 561 (1984), involved 27.6 grams

of marijuana recovered from the defendant’s jacket. Id. at 139, 321 S.E.2d at 564.

The marijuana “was packaged in seventeen separate, small brown envelopes known

in street terminology as ‘nickel or dime bags.’” Id. at 140, 321 S.E.2d at 564. The

defendant in that case argued that the amount of marijuana at issue was too small

to raise an inference that he intended to sell or deliver the drugs. Id. at 139, 321

S.E.2d at 564. In ruling that the evidence was sufficient to survive a motion to

dismiss, we stated that the “[d]efendant’s argument would be persuasive except for

the evidence of how the 27.6 grams of marijuana was packaged.” Id. at 139-40, 321

S.E.2d at 564.

      Similarly, in State v. Yisrael, __ N.C. App. __, 804 S.E.2d 742 (2017), we held

that sufficient evidence supported a possession with intent to sell or deliver charge

where the defendant possessed a total of 10.88 grams of marijuana packaged in three

separate baggies — one “dime bag” and two larger bags. Id. at __, 804 S.E.2d at 743.

The defendant in Yisrael was also carrying $1,504 and in possession of a stolen

handgun. Id. at __, 804 S.E.2d at 745-46.


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      We determined that “[t]his quantity of illegal drugs and its packaging . . . ; the

large amount of unsourced cash on [the defendant’s] person; and the stolen and

loaded handgun [are] sufficient to support a reasonable inference that [the defendant]

intended to sell or deliver the marijuana he admittedly possessed . . . .” Id. at __, 804

S.E.2d at 747; see also State v. Baxter, 285 N.C. 735, 738, 208 S.E.2d 696, 698 (1974)

(holding that “[t]he jury could reasonably infer an intent to distribute from the

amount of the substance found, the manner in which it was packaged and the

presence of other packaging materials” where 219 grams of marijuana were packaged

in 16 small envelopes and 28 empty envelopes were found nearby).

      Conversely, in Wilkins and Nettles we held that small quantities of drugs

unaccompanied by evidence that the substances were packaged for sale were

insufficient to raise an inference of intent to sell or deliver. The defendant in Wilkins

possessed 1.89 grams of marijuana contained in three small bags and $1,264 in cash.

Wilkins, 208 N.C. App. at 730, 703 S.E.2d at 809. Regarding the packaging, this

Court stated that “[w]hile small bags may typically be used to package marijuana, it

is just as likely that defendant was a consumer who purchased the drugs in that

particular packaging from a dealer.” Id. at 732, 703 S.E.2d at 810. We concluded as

follows:

             Had defendant possessed more than 1.89 grams of
             marijuana, or had there been additional circumstances to
             consider, we may have reached a different conclusion;
             however, given the fact that neither the amount of


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             marijuana nor the packaging raises an inference that
             defendant intended to sell the drugs, the presence of the
             cash as the only additional factor is insufficient to raise the
             inference.

Id. at 733, 703 S.E.2d at 810 (citation omitted).

      Nettles involved the discovery of four to five crack cocaine rocks weighing 1.2

grams in the defendant’s vehicle. Nettles, 170 N.C. App. at 105, 612 S.E.2d at 175.

The police also seized a safety pin from the defendant’s living room. Id. at 102, 612

S.E.2d at 173. Although “officers testified that a safety pin typically is utilized by

crack users to clean a crack pipe, there were no other drugs or drug paraphernalia

typically used in the sale of drugs found on the premises.” Id. at 107, 612 S.E.2d at

177. In ruling that there was insufficient evidence of an intent to sell or deliver, we

noted the absence of any testimony “that the drugs were packaged, stored, or labeled

in a manner consistent with the sale of drugs.”           Id. at 107, 612 S.E.2d at 176.

Ultimately, we concluded that even “[v]iewed in the light most favorable to the State,

the evidence tends to indicate defendant was a drug user, not a drug seller.” Id. at

107, 612 S.E.2d at 177.

      Thus, in ruling upon the sufficiency of evidence in cases involving the charge

of possession with intent to sell or deliver, our courts have placed particular emphasis

on the amount of drugs discovered, their method of packaging, and the presence of

paraphernalia typically used to package drugs for sale. Moreover, our case law

demonstrates that this is a fact-specific inquiry in which the totality of the


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circumstances in each case must be considered unless the quantity of drugs found is

so substantial that this factor — by itself — supports an inference of possession with

intent to sell or deliver. With these principles in mind, we now turn to the evidence

in the present case.

      As noted above, Defendant’s vehicle contained a total of 11.5 grams of

marijuana contained in two sandwich bags. Additionally, a digital scale and an open

box of sandwich bags were found along with 23 loose sandwich bags. Viewed in

isolation, the relatively small quantity of marijuana discovered in the vehicle would

not be enough to support an inference that Defendant possessed the drugs with the

intent to sell or deliver. See State v. Wiggins, 33 N.C. App. 291, 294, 235 S.E.2d 265,

268 (holding that discovery of 215.5 grams of marijuana was, by itself, insufficient to

survive a motion to dismiss), cert. denied, 293 N.C. 592, 241 S.E.2d 513 (1977).

However, given the additional presence of the digital scale and the large number of

sandwich bags found in Defendant’s vehicle, we are satisfied that the State’s evidence

was sufficient to create a question for the jury. Despite Defendant’s testimony that

he only utilized the scale and sandwich bags in connection with his own personal

marijuana use, a rational jury could have found his explanation to lack credibility.

      Even assuming that this case can be characterized as a close one, we have held

that “[i]n borderline or close cases, our courts have consistently expressed a

preference for submitting issues to the jury.” Yisrael, __ N.C. App. at __, 804 S.E.2d



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at 747 (brackets, quotation marks, and citation omitted). Accordingly, we hold that

the trial court did not err in denying Defendant’s motion to dismiss.

                                    Conclusion

      For the reasons stated above, we conclude that Defendant received a fair trial

free from error.

      NO ERROR.

      Judges ZACHARY and BERGER concur.




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