               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA18-21

                               Filed: 18 December 2018

Iredell County, Nos. 12 CRS 56461, 64, 65

STATE OF NORTH CAROLINA

              v.

HAROLD LEE PLESS, JR.


        Appeal by defendant from judgment entered 27 July 2017 by Judge Julia Lynn

Gullett in Superior Court, Iredell County. Heard in the Court of Appeals 22 August

2018.


        Attorney General Joshua H. Stein, by Assistant Attorney General Whitney H.
        Belich, for the State.

        William D. Spence for defendant-appellant.


        STROUD, Judge.


        Defendant appeals from convictions of several drug-related offenses. The trial

court did not err by denying defendant’s motion to suppress evidence regarding the

pretrial identification using his DMV photograph, and the trial court did not err by

admitting evidence of the identification and weight of the controlled substances from

a substitute analyst who did her own independent analysis of machine-generated

data. We therefore affirm the trial court’s denial of defendant’s motion to suppress

and find no error as to the admission of evidence.
                                  STATE V. PLESS

                                 Opinion of the Court



                                  I.   Background

      Detective Jessica Jurney of the Iredell County Sheriff’s Office conducted an

undercover narcotics purchase with Sergeant Chris Walker of the Mooresville Police

Department in September of 2012. Detective Jurney was to meet a man known as

“Junior” at a McDonald’s restaurant to purchase the drugs. “Junior” arrived at the

McDonald’s parking lot in a gold Lexus. Detective Jurney interacted with him for

three or four minutes and successfully purchased what would later be identified as

oxycodone and heroin from defendant. A surveillance team from the Mooresville

Police Department including Sgt. Walker witnessed the transaction. The identity of

defendant was unknown at the time of the drug deal, but Sgt. Walker obtained

defendant’s name from a confidential informant. Several days after the transaction,

Sgt. Walker obtained a photograph of defendant from the Department of Motor

Vehicles (“DMV”) and showed it to Detective Jurney. Sgt. Walker also testified that

he had seen defendant on another occasion driving the same gold Lexus with the

same license plate number as the one he saw during the drug transaction.

      Defendant was indicted on numerous drug related charges in December of

2012. Defendant pled guilty to these charges, but his plea was overturned by this

Court in 2016 based upon a sentencing error. On remand, defendant elected to have

a new trial, and Detective Jurney and Sgt. Walker identified defendant over objection

in court as the individual who sold the drugs to Jurney. Erica Lam, the forensic



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                                          Opinion of the Court



chemist who tested the substances purchased from defendant, was not available to

testify during the trial since she had moved out of state.1 The State presented Lam’s

supervisor, Lori Knops, who independently reviewed Lam’s findings to testify

instead. The jury found defendant guilty of possession with intent to manufacture,

sell, or deliver heroin, sale of heroin, trafficking in opium or heroin by possession,

trafficking in opium or heroin by sale, possession with intent to sell or deliver

oxycodone, and sale of oxycodone. Judgment was entered against defendant on all

charges which were consolidated into a sentence of 70 months minimum to 84 months

maximum. Defendant gave notice of appeal in open court.

                                    II.     Motion to Suppress

       “[Defendant] contends that the in-court identification of him by Ms. Jurney

and by Officer Walker should have been suppressed because the identifications were

unreliable; tainted by the impermissibly suggestive Department of Motor Vehicles

photograph.”

                                       Standard of Review

       Our review of a trial court’s denial of a motion to suppress is “strictly limited

to determining whether the trial judge’s underlying findings of fact are supported by

competent evidence, in which event they are conclusively binding on appeal, and


1 Defendant had a separate trial for drug charges related to an October 2012 traffic stop which he also
appealed to this Court. State v. Pless, ___ N.C. App. ____, 817 S.E.2d 498 (2018) (unpublished). In the
2017 trial related to defendant’s October 2012 drug charges, Lam testified as an expert witness about
oxycodone pills found on defendant.

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                                   Opinion of the Court



whether those factual findings in turn support the judge’s ultimate conclusions of

law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citations omitted).

“The trial court’s conclusions of law, however, are fully reviewable on appeal.” State

v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).

                                         Analysis

      Defendant does not challenge any of the trial court’s findings of fact in the

order but argues, “[a]lthough the court’s findings of fact 17 and 18 discuss the DMV

photo, the trial court failed to address whether or not this procedure was

impermissibly suggestive and, if it was, whether or not it was so impermissibly

suggestive   that   it   created   a    very   substantial   likelihood   of   irreparable

misidentification.” We review the trial court’s conclusions of law de novo. Our

Supreme Court has described a two-step process for this issue:

             This Court employs a two-step process in evaluating such
             claims of denial of due process. First we must determine
             whether an impermissibly suggestive procedure was used
             in obtaining the out-of-court identification. If this question
             is answered in the negative, we need proceed no further. If
             it is answered affirmatively, the second inquiry is whether,
             under all the circumstances, the suggestive procedures
             employed gave rise to a substantial likelihood of
             irreparable misidentification.

State v. Hannah, 312 N.C. 286, 290, 322 S.E.2d 148, 151 (1984) (citations omitted).

Relevant factors for determining whether the identification procedures were

impermissibly suggestive include: “the opportunity of the witness to view the criminal



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                                   Opinion of the Court



at the time of the crime, the witness’ degree of attention, the accuracy of the witness’

prior description of the criminal, the level of certainty shown by the witness, and the

time between the offense and the identification.” State v. Johnson, 161 N.C. App. 68,

73, 587 S.E.2d 445, 448 (2003) (citation omitted).

      Some of the relevant findings of fact are:

             4.     Investigator Jurney was provided with information
             from the informant and then observed a black male with a
             stocky to heavy set build and a bald head walk across the
             parking lot of the McDonald’s parking lot and get into a
             gold in color Lexus motor vehicle. The black male was alone
             in the vehicle.

             5.    Investigator Jurney approached the black male
             while he was in the vehicle and had a conversation with
             him.

             6.     Investigator Jurney then gave the black male
             $230.00 in pre-recorded buy money and the black male
             gave her 19 pills and a plastic bag containing a brown
             powder substance. Investigator Jurney was anticipating to
             purchase oxycodone and heroin. The contraband appeared
             to Investigator Jurney to be consistent with oxycodone and
             heroin, based upon her training, education and experience.

             7.     At the time of this transaction, Investigator Jurney
             had been working as an undercover officer for
             approximately 1 year and had conducted dozens of
             undercover     purchases      of  controlled    substances.
             Investigator Jurney knew the importance of identifying the
             correct suspect.

             8.     Investigator Jurney was able to observe the suspect,
             continuously throughout the drug transaction, which
             lasted 3 to 4 minutes at least and had an unobstructed view
             of the suspect during this time.


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                    Opinion of the Court




9.     Investigator Jurney was at an arm’s length and was
able to see the suspects [sic] face through the open window
of the vehicle in which the suspect was seated.

10.    At the conclusion of the drug transaction,
Investigator Jurney exchanged telephone numbers with
the suspect and watched the suspect drive away.
Investigator Jurney paid close attention to the suspect in
order to be able to identify the suspect at a later time.

11:   Ms. Jurney identified the defendant in Court as the
person who sold the contraband to her on September 7,
2012 and indicated that there was no doubt that it was the
defendant who sold the contraband to her.

12.  Investigator Walker was part of the surveillance
team providing security for Investigator Jurney on
September 7, 2012.

13.   Investigator Walker’s view of the suspect was not
obstructed. Investigator Walker observed the interaction
between the suspect and Investigator Jurney from a
distance of approximately 25 – 30 yards.

14.    Investigator   Walker    knows     that    correctly
identifying a suspect in a criminal investigation is of the
utmost importance.

15.    Investigator Walker observed the gold in color Lexus
in the McDonald’s parking lot. Investigator Walker
observed a stocky black male with a bald head near the
vehicle. Investigator Walker made arrangements with the
confidential informant for the drug transaction to occur
and knew that the subject’s nickname was “Junior.”

16.   A few days after the drug transaction, Investigator
Walker then obtained what was believed to be the suspect’s
name (Harold Pless) from the confidential informant and
requested that another employee of the Mooresville Police


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                                          Opinion of the Court



                Department perform a name search of “Harold Pless.”

                17.    Investigator Walker was provided a DMV photo of
                the defendant and recognized the defendant as the
                individual who sold the pills and suspected heroin to
                Investigator Jurney on September 7, 2012.

                18.   Investigator Walker then contacted Investigator
                Jurney and showed her the single DMV photo of the
                defendant. Investigator Jurney identified the photo of the
                defendant and confirmed that the defendant was the
                subject who sold her the contraband.

                19.    On October 5, 2012, Investigator Walker saw the
                defendant in the same McDonald’s parking lot near the
                intersection of US Highway 21 and Gateway Blvd.,
                Mooresville, NC. The defendant was operating the same
                gold in color Lexus motor vehicle and the defendant was
                placed under arrest.

                20.   Investigator Walker identified the defendant in
                Court as the person who sold the contraband to Ms. Jurney
                on September 7, 2012.

        The trial court then made these conclusions of law regarding the

identification2:

                2.    In evaluating the likelihood of irreparable
                misidentification, the Court considers:
                      a.     the opportunity of the witness to view the
                      criminal at the time of the crime;
                      b.     the witness’ degree of attention;
                      c.     the accuracy of the witness’ prior description;

2 See Barnette v. Lowe’s Home Ctrs. Inc., 247 N.C. App. 1, 6, 785 S.E.2d 161, 165 (2016). Most of these
are actually findings of fact although they are identified in the order as conclusions of law, but
defendant does not challenge the factual portions of the conclusions of law. (“Regardless of how they
may be labeled, we treat findings of fact as findings of fact and conclusions of law as conclusions of law
for purposes of our review.”).


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                                   Opinion of the Court



                   d.     the level of certainty demonstrated at the
                   confrontation;
                   e.     the time between the crime and the
             confrontation.

             3.    Both Investigator Walker and Investigator Jurney
             had direct and unobstructed views of the suspect.

             4.     Both Investigator Walker and Investigator Jurney
             were paying close attention to suspect because correctly
             identifying the perpetrator is of the utmost importance.

             5.    Both Investigator Walker and Investigator Jurney
             were certain in their identification of the defendant as the
             perpetrator.

             6.     Although there was a long period of time between
             the time of the offense and the confrontation, both
             Investigator Walker and Investigator Jurney recorded
             detailed notes of
             the event and identified the defendant as the perpetrator
             by looking at a DMV photo within a few days of the
             occurrence.

             7.    Based upon the totality of the circumstances, the
             defendant’s motion should be denied.

      It is obvious that the trial court did not “fail to address” whether the

identification was impermissibly suggestive based upon the trial court’s detailed

findings of fact and recitation of the factors it must consider to determine this exact

issue. But defendant is correct that the trial court did not make an explicit conclusion

of law that the identification procedure was not impermissibly suggestive. Instead,

the trial court listed the factors in conclusion of law 2 and then made separate

findings of ultimate fact as to each factor in conclusions of law 3 through 6. The trial


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                                   Opinion of the Court



court’s ultimate findings on the factors show that the trial court did address the

identification procedure and implicitly concluded it was not impermissibly

suggestive. The conclusions of law could be worded more clearly, but we have no

doubt as to the meaning and substance.

      Defendant cites to State v. Smith, 134 N.C. App. 123, 516 S.E.2d 902 (1999), in

support of his argument that the “evidence presented during voir dire and the facts

found, however, show that the DMV’s photo procedure was irreparably suggestive

and resulted in a strong possibility of misidentification and violation of due process.”

But again, defendant does not challenge the findings of fact, just the trial court’s

analysis of those facts. And this case differs from Smith, where this Court found the

use of a high school yearbook to identify a defendant to be impermissibly suggestive

when “[d]efendant’s picture was the only picture of a black male on the page, and

defendant’s name was printed below his picture and clearly visible.” 134 N.C. App.

at 127, 516 S.E.2d 902, 906. (“[The Officer] knew that the suspect she was attempting

to identify was a black male, and [a confidential informant] had previously told her

defendant’s name as it appeared under his photo.”).

      Defendant also relies on State v. Al-Bayyinah, 356 N.C. 150, 567 S.E.2d 120,

(2002), and State v. Knight, 282 N.C. 220, 192 S.E.2d 183 (1972), for the premise that

“[s]ingle-photo identifications are inherently suggestive.” But there is no absolute

prohibition of using a single photograph:



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                                   Opinion of the Court



                    In Simmons v. United States, 390 U.S. 377, 88 S.Ct.
             967 (1968), the Court refused to prohibit absolutely the use
             of identification by photograph and instead held that “each
             case must be considered on its own facts, and that
             convictions based on eyewitness identification at trial
             following a pretrial identification by photograph will be set
             aside on that ground only if the photographic identification
             procedure was so impermissibly suggestive as to give rise
             to a very substantial likelihood of irreparable
             misidentification.”

Knight, 282 N.C. at 225, 192 S.E.2d at 287.

      The present case also differs from State v. Jones, where this Court found the

use of a single photo was impermissibly suggestive. In Jones, an agent was shown a

picture “some seven months after the incident occurred, after the witness had been

notified that he would be receiving a photograph of the defendant and with the

defendant’s name written on the back[.]” 98 N.C. App. 342, 347, 391 S.E.2d 52, 56

(1990). Here, the DMV photo was shown to Detective Jurney only days after the

purchase took place, and she neither knew defendant’s name nor was it on the photo.

      Defendant also argues that the trial court must have found the identification

procedure to be impermissibly suggestive because the order addressed both of the two

steps of the analysis but the second step would not be necessary based upon a

conclusion of law that the procedure was not impermissibly suggestive. See Hannah,

312 N.C. at 290, 322 S.E.2d at 151 (“If this question is answered in the negative, we

need proceed no further. If it is answered affirmatively, the second inquiry is whether,

under all the circumstances, the suggestive procedures employed gave rise to a


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                                        Opinion of the Court



substantial likelihood of irreparable misidentification.” (citations omitted)). The trial

court concluded that the identification procedure was not impermissibly suggestive,

as discussed above. Defendant is correct that the trial court need not have addressed

the reliability of the identification under the totality of the circumstances, given its

prior determination regarding the identification procedure, but the trial court did not

err by ruling upon this issue. In addition, if the trial court did not in fact conclude

that the identification procedure was not impermissibly suggestive, the trial court

did not err in its alternative conclusion that the identification was reliable under the

totality of the circumstances.

      While we recognize that it is the better practice to use multiple photos in a

photo identification procedure, the trial court did not err in its conclusion that, in this

case, the use of a single photo was not impermissibly suggestive. And even if the

procedure was impermissibly suggestive, the trial court’s findings of fact also support

a conclusion that the procedure did not create “a substantial likelihood of irreparable

misidentification.” The trial court’s findings of fact in this order are supported by

competent evidence, and these factual findings support the trial court’s ultimate

conclusions of law.

                                 III.      Expert Testimony

      Defendant argues that the trial court erred by allowing expert testimony on

the weight and identification of the pills as oxycodone and the powder as heroin.



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                                     Opinion of the Court



Because the State’s expert had an independent basis for her testimony, we find no

error in allowing her to testify.

                                    Standard of Review

      Prior to trial, the State notified defendant it intended to call Knops to testify

as to the weights and identification of the pills and powder. Defendant filed a motion

in limine asking to exclude testimony from the State’s expert, Knops, because the

actual analysis of the pills and powder were done by another expert who has since

moved out of state. The trial court denied defendant’s motion in limine, and, at trial,

he objected to the introduction of Knops’s testimony regarding the brown powder, but

failed to object to her testimony regarding the pills.

       “In order to preserve a question for appellate review, a party must have

presented the trial court with a timely request, objection or motion, stating the

specific grounds for the ruling sought if the specific grounds are not apparent.” State

v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991); see also N.C. R. App. P.

10(a)(1). “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). Plain error arises when the error is “so basic, so prejudicial,

so lacking in its elements that justice cannot have been done[.]” State v. Odom, 307



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                                 Opinion of the Court



N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation omitted). “Under the plain error

rule, defendant must convince this Court not only that there was error, but that

absent the error, the jury probably would have reached a different result.” State v.

Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).

                                      Analysis

      Our Supreme Court has stated that “when an expert gives an opinion, the

expert is the witness whom the defendant has the right to confront. In such cases,

the Confrontation Clause is satisfied if the defendant has the opportunity ‘to fully

cross-examine the expert witness who testifies against him[.]’” State v. Ortiz-Zape,

367 N.C. 1, 9, 743 S.E.2d 156, 161 (2013) (citation and quotation marks omitted).

Further, “the expert must present an independent opinion obtained through his or

her own analysis and not merely ‘surrogate testimony’ parroting otherwise

inadmissible statements.” Id. (citing Bullcoming v. New Mexico, 564 U.S. 647, 652,

131 S. Ct. 2705, 2710 (2011)).    However, “machine-generated raw data, if truly

machine-generated, are not statements by a person, they are neither hearsay nor

testimonial.” Id. at 10, 743 S.E.2d at 162 (citation and quotation marks omitted).

      Here, Erica Lam performed the forensic chemistry analysis on the evidence

purchased from Defendant. However, Lam moved out of state and was not available

to testify at trial about the results of her chemical analysis. The State called Lori

Knops, Lam’s supervisor, to testify about the results of the tests on the evidence



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                                   Opinion of the Court



obtained from defendant. After voir dire on Knops’s proposed testimony, the trial

court concluded:

                    In this matter, the Court does believe that scientific
             and technical and other specialized knowledge will assist
             the trier of fact in understanding the evidence in order to
             determine a fact in issue, that this witness is qualified as
             an expert by knowledge, skill, experience, training, and
             education. The Court does find that her testimony is based
             on sufficient facts or data, that her testimony is a product
             of reliable principles and methods, and the witness has
             applied the principles and methods reliable to the facts of
             this case, and so the Court therefore will allow her to testify
             as to her findings. Court will exclude the prior testimony
             of Ms. Lam as to the pills, but will allow this witness to
             testify as to her peer review and her findings based on the
             information of Ms. Lam.

Knops was tendered as an expert in “forensic chemistry” without objection and

testified about the procedure at the lab where she and Lams worked (“NMS”):

             Q      Now, could you tell us, what is the process by which
             NMS Labs goes about determining whether something that
             is suspected of being a controlled substance is in fact a
             controlled substance?
             A      A series of tests are conducted on the unknown
             substance. Essentially it’s a two-part test. The first would
             be a preliminary or a presumptive test to essentially
             dictate what confirmatory test is used, and that is, the
             second part is to do a confirmatory test.

Knops stated a peer review was performed on Lam’s reports, and Knops personally

reviewed the peer review. She stated that a peer review’s purpose is to “look at the

data that is produced and to formulate your opinion as to the result, and if that result

matches the result that was produced by the working analyst.” Defendant did not


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                                    Opinion of the Court



object to Knops’s testimony regarding the substance of the pills. However, defendant

did object to the identification of the heroin and the weight of the pills and the

introduction of Knops’s report, which contained in part:

             Case ID Numbers:
             16-WIN-019752 (Agency Number: 2012004651, Date of
             Offense: 09/07/2012)
             Name/DOB: Pless Jr. Harold Lee (09/30/1971)

             . . . The case file for Laboratory Report, 16-WIN-019752
             was reviewed by myself on July 24, 2017. I reviewed the
             analytical results of the above-listed Laboratory Reports
             and affirm the following:

             16-WIN-019752
             Lab Item #1 – Heroin, confirmed; 1 sample tested, Weight
             0.45 g (+/- 0.01 g)
             Lab Item #2 – Acetaminophen and Oxycodone, confirmed;
             Weight 9.45 g (+/- 0.01 g); 1 sample tested, Weight 0. 52 g
             (+/- 0.01 g)

          a. Identity of the Substances

      The situation presented here as to Knops’s testimony regarding State’s

Exhibits 3 and 4, identified as oxycodone and heroin, is identical to State v. Ortiz-

Zape, 367 N.C. 1, 743 S.E.2d 156.

             [Knops] analyzed the data pertaining to the seized
             substance[s] and gave her independent expert opinion that
             the substance was [heroin and Oxycodone]. Defendant had
             the opportunity to cross-examine the witness against him:
             [Knops]. The admission of an independent expert opinion
             based on the expert’s own scientific analysis is not the type
             of evil the Confrontation Clause was designed to prevent.

Id. at 14, 743 S.E.2d at 165.


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                                  Opinion of the Court



      Knops’s opinion on the identity of the heroin and oxycodone resulted from her

independent analysis of Lam’s data:

             Q      And did you review Ms. Lam’s, the work product and
             the raw data that was generated relative to the testing of
             State’s Exhibit 3?
             A      I did.
             Q      Based on your review of those items and your visual
             inspection of the tablets now, did you form an opinion
             satisfactory to yourself as to what those tablets are?
             A      Yes, I did.
             Q      What is it?
             A      Acetiminophen [sic] and Oxycodone tablet.
             ....
             Q      Based upon your review of, of the peer review, and
             of the analyses as noted in the data generated by NMS
             Labs and Ms. Lam, did you form an opinion satisfactory to
             yourself as to whether, as to what the identity of the
             substance is contained in State’s Exhibit 4?
             A      Yes, I did.
             Q      What is it?
             [Defendant’s Counsel]: Object.
             THE COURT: Overruled.
             A      That State’s Exhibit 4 is heroin.

We find no error as to the identification of the oxycodone and the heroin.

         b. Weight of the Substances

      Knops was also questioned by the State about the weight of the pills:

             Q      Now, does that [your report] reference the weight,
             the collective weight of all pills?
             A      Yes, it does.
             Q      Which is what?
             [Defendant’s Counsel]: Object. This goes back to the earlier
             motion.
             THE COURT: Overruled.
             Q      Go ahead.


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                                   Opinion of the Court



             A       The collective weight was 9.45 grams.
             Q       Now, could you tell us, please, whether -- you didn’t
             yourself put them on a balance and weigh them yourself?
             A       I did not.
             Q       Based upon your review of the work product that
             was generated in the original analysis, and based upon
             your visual inspection of the pills, as you sit here right now,
             could you tell the jury whether you had an opinion
             satisfactory to yourself as to whether 9.45 grams was
             consistent with the weight of the pills as they appeared?
             A: It’s consistent, yes.

On cross-examination, defendant’s counsel asked Ms. Knops about how she obtained

the weight of the substances:

             Q     And the same thing is true with the weight that was
             recorded for the heroin; is that right?
             A     Yes. There wasn’t any notes as to anyone observing
             her while she performed the test.
             Q     And so the weight in your report for both the pills
             and the heroin was essentially repeated from Ms. Lam’s
             report?
             A     Yes.
             Q     Is that correct?
             A     Yes, it was from my review of her weights obtained
             on that balance tape.

On redirect, Knops restated her opinion:

             My opinion is State’s 3 contained acetiminophen [sic] and
             Oxycodone with a weight of the 9.45 grams. And by looking
             at the evidence here today and these tablets, that weight is
             consistent with what I am visually seeing right now.

Because weight is machine generated, it is neither hearsay nor testimonial, and the

trial court did not err by allowing Knops’s testimony on the weight of the substances

or her report to be admitted into evidence.          See id. at 10, 743 S.E.2d at 162


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                                 Opinion of the Court



(“[C]onsistent with the Confrontation Clause, if ‘of a type reasonably relied upon by

experts in the particular field,’ N.C.R. Evid. 703, raw data generated by a machine

may be admitted for the purpose of showing the basis of an expert’s opinion.”). Knops

provided an independent basis for her opinion. The admission of Knops’s testimony

did not violate defendant’s confrontation rights, so the trial court did not err by

allowing this evidence.

                                   IV. Conclusion

      We affirm the trial court’s denial of defendant’s motion to suppress and hold

that the trial court did not err by allowing Knops’s testimony on the identification

and weights of the substances or admitting Knops’s report into evidence.

      AFFIRMED IN PART; NO ERROR IN PART.

      Judge ZACHARY concurs.

      Judge MURPHY concurs in the result by separate opinion.




                                        - 18 -
No. COA18-21 – State v. Pless


      MURPHY, Judge, concurring in result by separate opinion.


      I concur with the Majority’s analysis as to the motion to suppress, but concur

in result only as to its analysis of Defendant’s second argument, regarding expert

testimony and the Confrontation Clause. Where a party fails to raise a constitutional

issue at trial, such a challenge cannot ordinarily be considered for the first time on

appeal. State v. Davis, 202 N.C. App. 490, 497, 688 S.E.2d 829, 834 (2010). Here,

Defendant did not raise a Confrontation Clause challenge at trial, so the issue is not

properly before us on appeal.

      In Davis, we held:

             As Defendant failed to object at trial to any of the
             aforementioned testimony, Defendant failed to preserve for
             appeal the argument that the evidence was erroneously
             admitted. See N.C. R. App. P. 10(b)(1) (“In order to preserve
             a question for appellate review, a party must have
             presented to the trial court a timely ... objection ... stating
             the specific grounds for the ruling the party desired the
             court to make....”). “Moreover, because [D]efendant did not
             ‘specifically and distinctly’ allege plain error as required by
             North Carolina Rule of Appellate Procedure 10(c)(4),
             [D]efendant is not entitled to plain error review of this
             issue.” State v. Dennison, 359 N.C. 312, 312–13, 608 S.E.2d
             756, 757 (2005) (citing N.C. R. App. P. 10(c)(4)).
             Furthermore, “[a] constitutional issue not raised at trial
             will generally not be considered for the first time on
             appeal.” Anderson v. Assimos, 356 N.C. 415, 416, 572
             S.E.2d 101, 102 (2002). While this Court may pass upon
             constitutional questions not properly raised at the trial
             level in the exercise of its supervisory jurisdiction “[t]o
             prevent manifest injustice [,]” N.C. R. App. P. 2, because
             there was copious unchallenged evidence before the jury
             that the substance at issue was cocaine, including . . .
                                   STATE V. PLESS

                                MURPHY, J., concurring



             unchallenged testimony, we decline to invoke Rule 2 in this
             case.

Id. Our holding and analysis in Davis is indistinguishable from the instant case.

Therefore, I would not reach the Defendant’s argument regarding Ms. Knop’s expert

testimony. Consequently, I agree with the Majority’s ultimate determination that

Defendant received a fair trial, free from error, and concur in the mandate.




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