               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-1144

                                 Filed: 2 August 2016

Caldwell County, No. 12 CRS 50686

STATE OF NORTH CAROLINA

              v.

LARRY WILLIAM ABRAMS


        Appeal by defendant from judgments entered 27 May 2015 by Judge Robert C.

Ervin in Caldwell County Superior Court. Heard in the Court of Appeals 27 April

2016.


        Attorney General Roy Cooper, by Assistant Attorney General Deborah M.
        Greene, for the State.

        Leslie Rawls for defendant-appellant.


        CALABRIA, Judge.


        Larry William Abrams (“defendant”) appeals from judgments entered upon

jury verdicts finding him guilty of possession with intent to sell or deliver marijuana,

intentionally maintaining a building to keep controlled substances, and possession of

drug paraphernalia. We conclude defendant received a fair trial, free from error.

                                   I. Background

        During a traffic stop on 13 February 2012, Willie Cloninger (“Cloninger”)

consented to deputies of the Caldwell County Sheriff’s Department (“CCSD”)

searching his vehicle. He told CCSD that he had four ounces of marijuana under his
                                  STATE V. ABRAMS

                                  Opinion of the Court



seat and agreed to make undercover buys for them. Cloninger made three buys at

defendant’s home. After each buy, Cloninger met with the officers and returned the

purchased substances to them.

      James Ferguson also cooperated with the CCSD. When his home was raided,

he admitted to purchasing marijuana from defendant for the past nine months.

Subsequently, CCSD executed a search warrant on defendant’s home and recovered,

inter alia, “[f]ive Ziploc bags of green vegetable plant matter” and various other

containers of plant material. Georgiana Baxter (“Agent Baxter”), a special agent with

the North Carolina State Bureau of Investigation (“SBI”) and a forensic scientist with

the North Carolina State Crime Lab (“NC Lab”) in the Western Regional Laboratory

(“WRL”) in Asheville, tested the plant matter recovered from defendant’s home and

concluded that it was marijuana. Defendant was charged with, inter alia, possession

with intent to sell or deliver marijuana, intentionally maintaining a building to keep

controlled substances, and possession of drug paraphernalia.

      At trial, the State tendered Agent Baxter as an expert witness. Agent Baxter

currently serves as a forensic scientist supervisor in the chemistry section of the NC

Lab in WRL, where she has worked for nearly fourteen years. She has completed the

specialized “in-house training program through the [NC Lab] dealing with all aspects

of forensic drug analysis” and was certified by the American Board of Criminalistics

in the area of forensic drug analysis. As of the date she testified, Agent Baxter had



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                                   Opinion of the Court



been previously tendered and admitted as an expert approximately eighty-seven

times to give her opinion as to whether a substance was a controlled substance.

      Agent Baxter testified that she examined the plant material recovered from

defendant’s residence pursuant to the procedures set forth by NC Lab for analyzing

and identifying marijuana. Those procedures called for an analyst to separate the

vegetable material from its packaging and record its weight; conduct a visual

inspection of the material with the naked eye; conduct an inspection of the material

under a microscope; and then conduct a chemical test to determine the presence of

tetrahydrocannabinol (“THC”), the active component of marijuana. After conducting

this analysis on the vegetable material recovered from defendant’s home, Agent

Baxter concluded that it was marijuana.

      On 27 May 2015, a Caldwell County jury returned verdicts finding defendant

guilty of possession with intent to sell or deliver marijuana, intentionally maintaining

a building to keep controlled substances, and possession of drug paraphernalia. The

trial court sentenced defendant to a 60-day active sentence to be served in the custody

of the Sherriff of Caldwell County, as well as a minimum of 6 months and a maximum

of 17 months to be served in the North Carolina Division of Adult Correction, where

he was placed on supervised probation for 30 months with monetary and special

conditions of probation. Defendant appeals.

                          II. Identification of Marijuana



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                                  Opinion of the Court



      Defendant argues the trial court abused its discretion by admitting expert

testimony identifying the substance recovered from his home as marijuana, in

violation of the new reliability inquiry imposed by amended Rule 702(a) of the North

Carolina Rules of Evidence. We disagree.

A. Expert Testimony, the Daubert Standard

      As an initial matter, “North Carolina is now a Daubert state.”         State v.

McGrady, __ N.C. __, __, __ S.E.2d __, __, 2016 N.C. LEXIS 442, at *13 (2016). Rule

702(a) governs the admission of expert witness testimony. In 2011, our General

Assembly amended Rule 702(a) to reflect its federal counterpart, which itself was

amended in 2000 in response to the standard articulated in Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579, 125 L.Ed.2d 469, 113 S.Ct. 2786 (1993) and later clarified

in General Electric Co. v. Joiner, 522 U.S. 136, 139 L.Ed.2d 508, 118 S.Ct. 512 (1997)

and Kumho Tire. Co. v. Carmichael, 526 U.S. 137, 143 L.Ed.2d 238, 119 S.Ct. 1167

(1999). McGrady, __ N.C. at __, __ S.E.2d at __, 2016 N.C. LEXIS 442, at *7.

      Our Supreme Court recently interpreted the 2011 amendment to Rule 702(a)

to “adopt[] the federal standard for the admission of expert witness testimony

articulated in the Daubert line of cases[,]” and held that “the meaning of North

Carolina’s Rule 702(a) now mirrors that of the amended federal rule.” Id. at __, __

S.E.2d at __, 2016 N.C. LEXIS 442, at *6.

B. Standard of Review



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      We review a trial court’s ruling on the admissibility of expert testimony

pursuant to Rule 702(a) for an abuse of discretion. Id. at __, __ S.E.2d at __, 2016

N.C. LEXIS 442, at *22. “ ‘[A] trial court may be reversed for abuse of discretion only

upon a showing that its ruling was manifestly unsupported by reason and could not

have been the result of a reasoned decision.’ ” Id. at __, __ S.E.2d at __, 2016 N.C.

LEXIS 442, at *22 (quoting State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59

(1986)).

      In reviewing a trial court’s application of Rule 702(a), our Supreme Court

instructed:

              To determine the proper application of North Carolina’s
              Rule 702(a) . . . [the reviewing court] must look to the text
              of the rule, to [Daubert, Joiner, and Kumho], and also to
              our existing precedents, as long as those precedents do not
              conflict with the rule’s amended text or with Daubert,
              Joiner, and Kumho.

Id. at __, __ S.E.2d at __, 2016 N.C. LEXIS 442, at *14.

C. Discussion

      Rule 702(a) provides in pertinent part:

              (a) If scientific, technical or other specialized knowledge
              will assist the trier of fact to understand the evidence or to
              determine a fact in issue, a witness qualified as an expert
              by knowledge, skill, experience, training, or education, may
              testify thereto in the form of an opinion, or otherwise, if all
              of the following apply:

                    (1) The testimony is based upon sufficient facts or
                    data.


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                                    Opinion of the Court




                     (2) The testimony is the product of reliable principles
                     and methods.

                     (3) The witness has applied the principles and
                     methods reliably to the facts of the case.

N.C. Gen. Stat. § 8C-1, Rule 702(a) (2015). Inquiry under the amended Rule 702(a)

still involves a “three-step framework—namely, evaluating qualifications, relevance,

and reliability[,]” McGrady, __ N.C. at __, __ S.E.2d at __, 2016 N.C. LEXIS 442, at

*20, and “expert testimony must satisfy each to be admissible.” Id. at __, __ S.E.2d

at __, 2016 N.C. LEXIS 442, at *14. In the instant case, defendant does not dispute

Agent Baxter’s credentials nor the relevance of her testimony, but challenges its

reliability.

       1. Reliable Principles and Methods

       Defendant contends Agent Baxter’s testimony was not “the product of reliable

principles and methods[,]” in violation of Rule 702(a)(2), on the basis that “the State

did not present any testimony relating to [Daubert’s] five factors. Nor did it present

any other support for the reliability of the test Baxter used to determine the nature

of the vegetable matter.” We disagree.

       Regarding Daubert’s and other particular factors a trial court may consider

when determining reliability, our Supreme Court explained:

                      In the context of scientific testimony, Daubert
               articulated five factors from a nonexhaustive list that can
               have a bearing on reliability: (1) “whether a theory or


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                      STATE V. ABRAMS

                     Opinion of the Court



technique . . . can be (and has been) tested”; (2) “whether
the theory or technique has been subjected to peer review
and publication”; (3) the theory or technique’s “known or
potential rate of error”; (4) “the existence and maintenance
of standards controlling the technique’s operation”; and (5)
whether the theory or technique has achieved “general
acceptance” in its field. Daubert, 509 U.S. at 593-94. When
a trial court considers testimony based on “technical or
other specialized knowledge,” N.C. R. Evid. 702(a), it
should likewise focus on the reliability of that testimony,
Kumho, 526 U.S. at 147-49. The trial court should consider
the factors articulated in Daubert when “they are
reasonable measures of the reliability of expert testimony.”
Id. at 152. Those factors are part of a “flexible” inquiry,
Daubert, 509 U.S. at 594, so they do not form “a definitive
checklist or test,” id. at 593. And the trial court is free to
consider other factors that may help assess reliability given
“the nature of the issue, the expert’s particular expertise,
and the subject of his testimony.” Kumho, 526 U.S. at 150.

       The federal courts have articulated additional
reliability factors that may be helpful in certain cases,
including:

      (1) Whether experts are proposing to testify about
      matters growing naturally and directly out of
      research they have conducted independent of the
      litigation, or whether they have developed their
      opinions expressly for purposes of testifying.

      (2) Whether the expert has unjustifiably
      extrapolated from an accepted premise to an
      unfounded conclusion.

      (3) Whether the expert has adequately accounted for
      obvious alternative explanations.

      (4) Whether the expert is being as careful as he
      would be in his regular professional work outside his
      paid litigation consulting.


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                                   STATE V. ABRAMS

                                  Opinion of the Court




                    (5) Whether the field of expertise claimed by the
                    expert is known to reach reliable results for the type
                    of opinion the expert would give.

             Fed. R. Evid. 702 advisory committee’s note to 2000
             amendment (citations and quotation marks omitted). In
             some cases, one or more of the factors that we listed in
             Howerton may be useful as well. See Howerton [v. Arai
             Helmet, Ltd.], 358 N.C. [440,] 460, 597 S.E.2d [674,] 687
             [(2004)] (listing four factors: use of established techniques,
             expert’s professional background in the field, use of visual
             aids to help the jury evaluate the expert’s opinions, and
             independent research conducted by the expert).

                    Whatever the type of expert testimony, the trial
             court must assess the reliability of the testimony to ensure
             that it complies with the three-pronged test in Rule
             702(a)(1) to (a)(3). The court has discretion to consider any
             of the particular factors articulated in previous cases, or
             other factors it may identify, that are reasonable measures
             of whether the expert’s testimony is based on sufficient
             facts or data, whether the testimony is the product of
             reliable principles and methods, and whether the expert
             has reliably applied those principles and methods in that
             case. See Kumho, 526 U.S. at 150-53.

McGrady, __ N.C. at __, __ S.E.2d at __, 2016 N.C. LEXIS 442, at *18-20 (footnotes

omitted). In addition, our Supreme Court emphasized that “Rule 702(a), as amended

in 2011, does not mandate particular ‘procedural requirements for exercising the trial

court’s gatekeeping function over expert testimony.’ ” Id. at __, __ S.E.2d at __, 2016

N.C. LEXIS 442, at *22 (quoting Fed. R. Evid. 702).

      In the instant case, Agent Baxter’s testimony established that she analyzed

the vegetable matter recovered from defendant’s home in accordance with the


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                                   Opinion of the Court



procedures for identifying marijuana employed by NC Lab at the time. Regarding

Rule 702(a)(2), the reliability of the “principles and methods” employed, Agent Baxter

explained that when identifying a substance as marijuana:

             The first thing that I’m going to do . . . is . . . separate any
             weighable material from its packaging that I receive it in.
             So I want the weight of just the material itself. I’m going
             to record that weight. At that point, I’m going to proceed
             with my analysis, conducting some type of preliminary
             analysis, whether that be a color test. In this particular
             case, with plant material, it’s going to include a microscopic
             examination as well. After that, I’m going to do some type
             of chemical analysis to confirm the identification.

      Regarding the microscopic exam, Agent Baxter explained in greater detail:

             There’s basically four characteristics that we’re looking for
             with marijuana. They have unique characteristics about
             their leaves. They have particular types of hairs that grow
             on those leaves. The stems of marijuana plants aren’t
             rounded like a lot of tree, or you know, other types of plant
             material. They’re fluted so . . . they’re almost square, with
             concave edges. The seeds of the marijuana plant are very
             unique in that they are mottled, which means they look like
             little turtles’ backs. So those are the kinds of things that
             we’re looking for when we look under the microscope.

      Regarding the chemical analysis, Agent Baxter explained that she conducted

             what is referred to as a Duquenois-Levine color test[, which
             is] a chemical test that reacts with certain compounds. In
             this case, it reacts with certain cannabinoids, such as THC,
             which is the active component in marijuana.

      Based on her detailed explanation of the systematic procedure she employed

to identify the substance recovered from defendant’s home, a procedure adopted by



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                                   Opinion of the Court



the NC Lab specifically to analyze and identify marijuana, her testimony was clearly

the “product of reliable principles and methods” sufficient to satisfy the second prong

of Rule 702(a), and the trial court did not abuse its discretion in admitting this

testimony. We overrule defendant’s challenge.

      2. Application of Reliable Principles and Methods

      Defendant next contends Agent Baxter’s testimony did not establish that she

“applied the principles and methods reliably to the facts of the case[,]” in violation of

Rule 702(a)(3). We disagree.

      Agent Baxter testified that “we handle every case the same. We only work one

item of evidence at a time, so as to prevent any type of cross-contamination during

analysis.”   Agent Baxter received five bags of vegetable matter for testing, and

explained:

             Based on our sampling procedures at that time, . . . I was
             required to randomly select three of those plastic bags and
             do a complete chemical analysis.

      After selecting the first bag, Agent Baxter “separated it from the packaging

material, [and measured the] weight o[f] that material[,]” which was “379.21 grams.”

Next, she performed “a macroscopic [examination]. . . for particular characteristics.

[She] then did a microscopic examination of the material[.]”         Subsequently, she

performed “a Duquenois-Levine color test” and “receive[d] a positive indication[.]”

Based on her analysis, Agent Baxter concluded that the substance was marijuana.



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                                  Opinion of the Court



      Regarding analyzing the two other samples, Agent Baxter testified that she

applied the same procedures she used to analyze the first sample:

              Once again, I separated it from its packaging material to
              obtain that net weight. I visually observed the material,
              did a microscopic examination as well as the chemical test
              that I performed[.]

      Agent Baxter concluded that, based on her analysis, the substance tested in

each of the bags was marijuana.

      Agent Baxter’s testimony established that the principles and methods she

employed were “applied . . . reliably to the facts of the case[,]” per Rule 702(a)(3).

Therefore, the trial court did not abuse its discretion by admitting her testimony.

                                  III. Conclusion

      Agent Baxter’s testimony was “the product of reliable principles and methods”

“applied . . . reliably to the facts of the case[,]” which satisfied the two challenged

prongs of the reliability analysis under Rule 702(a). Defendant has failed to show the

trial court abused its discretion in admitting Agent Baxter’s expert testimony

identifying the substance as marijuana. McGrady, __ N.C. at __, __ S.E.2d at __, 2016

N.C. LEXIS 442, at *22. Therefore, we conclude defendant received a fair trial, free

from error.

      NO ERROR.

      Judge TYSON concurs.

      Judge HUNTER, JR. concurs in a separate opinion.


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 No. COA15-1144 – State v. Abrams


      HUNTER, JR., Robert N., Judge, concurs in a separate opinion.


      I concur in holding the trial court did not commit error, but write separately to

briefly discuss difficulties this Court faces in reviewing Daubert challenges on appeal.

      Our Supreme Court and legislature have held North Carolina is a Daubert

state. See State v. McGrady, ___ N.C. ___, ___, ___ S.E.2d ___, ___ (72PA14 2016).

Our trial courts are bound to follow Daubert and its related guidance. At the present,

trial courts are not required to make findings of fact or conclusions of law when they

accept or reject an expert witness. With the advent of Daubert, this is problematic to

appellant review. See State v. Walston, __ N.C. App. __, __, 780 S.E.2d 846, 862

(2015).

      To utilize an expert witness in North Carolina, the moving party must show

the witness’s expertise puts the expert in a better position to have an opinion on a

given subject than the trier of fact. See State v. Goode, 341 N.C. 513, 529, 461 S.E.2d

631, 640 (1995). The movant must show the witness is “qualified as an expert by

knowledge, skill, experience, training, or education . . . .” N.C. Gen. Stat. § 8C-1, Rule

702(a) (2015). Then, the movant must follow the three-part framework of Rule 702

and show the testimony is based up sufficient facts or data, is the product of reliable

principles and methods, and the expert witness applied the principle and methods

reliably to the facts of the case. Id. At issue in the case sub judice, the reliability

prong poses procedural challenges for this Court’s appellate review.
                                   STATE V. ABRAMS

                               HUNTER, JR., J., concurring



      Because the substantive rule has an extensive history in federal law, our courts

would adopt the federal procedure found in federal courts. However, the United

States Circuit Courts of Appeal do not agree on the issue of whether a trial court must

conduct a formal Daubert hearing when it applies the sufficiency and reliability

factors in Rule 702. Circuits that allow a trial court to forego a Daubert hearing

suggest a trial court can conduct a voir dire examination of the witness or allow the

movant to establish a foundation on direct examination or through affidavits and

expert reports. See In re Hanford Nuclear Reservation Litigation, 292 F.3d 1124,

1138–39, (9th Cir. 2002); United States v. Glover, 479 F.3d 511, 517 (7th Cir. 2007);

Hoult v. Hoult, 57 F.3d 1, 5 (1st Cir. 1995) (“[W]e assume that the [trial] court

performs [the Daubert] analysis sub silentio throughout the trial with respect to all

expert testimony.”); United States v. Lacascio, 6 F.3d 924 (2d Cir. 1993); United States

v. Johnson, 488 F.3d 690, 697 (6th Cir. 2007). The other circuits that require a formal

Daubert hearing face a nuanced procedural challenge—whether an in limine hearing

is required when there is a material dispute as to the expert’s reliability.        See

Seaboard Lumber Co. v. United States, 308 F.3d 1283, 1302 (Fed. Cir. 2002); see also

Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 418 (3d Cir. 1999). Of the two lines of

cases, the United States Supreme Court generally supports a trial court’s procedural

discretion in conducting a Daubert inquiry. Kumho Tire Co. v. Carmichael, 526 U.S.

137, 152 (1999) (“[W]e conclude that the trial judge must have considerable leeway in



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                                   STATE V. ABRAMS

                               HUNTER, JR., J., concurring



deciding in a particular case how to go about determining whether particular expert

testimony is reliable. That is to say, a trial court should consider the specific factors

identified in Daubert where they are reasonable measures of the reliability of expert

testimony. The trial court must have the same kind of latitude in deciding how to

test an expert's reliability, and to decide whether or when special briefing or other

proceedings are needed to investigate reliability, as it enjoys when it decides whether

or not that expert’s relevant testimony is reliable.”).

      However, parties may wish to build a record to contest specific findings when

an expert is accepted or rejected. In civil trials parties may move to amend a trial

court’s findings of fact pursuant to N.C. R. Civ. P. 52(b), request specific findings on

a witness’s qualifications through an objection pursuant to N.C. R. Civ. P. 46(a)(1), or

provide an offer of proof outside of the presence of the jury when their witness is

excluded as an expert, pursuant to N.C. R. Evid. 103(a)(2). However, this leaves

parties in criminal trials with no procedural mechanism to compel the trial court to

make findings of fact or conclusions of law regarding its acceptance or rejection of an

expert witness. This also creates the possibility of a silent record when parties

stipulate to an expert’s qualifications and/or reliability, and the movant fails to

provide an offer of proof for the record to show its witness meets the Daubert

requirements.




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                                   STATE V. ABRAMS

                               HUNTER, JR., J., concurring



      Given these federal distinctions, one model for procedure is to import the Rule

404(b) procedure in Rule 702. Under Rule 404(b), if a party fails to challenge the

admissibility of evidence through a motion in limine, but does raise the issue at trial,

the trial court holds a voir dire hearing. See, e.g., State v. Beckelheimer, 366 N.C.

127, 131, 726 S.E.2d 156, 160–61 (2012). At this hearing, the trial court conducts a

five part analysis: (1) whether there is sufficient evidence the party committed the

act; (2) whether the evidence serves a proper purpose; (3) whether the evidence is

sufficiently similar to the act in question; (4) whether the evidence and act in question

are temporally proximate; and (5) whether the evidence survives the Rule 403

balancing test. See Id.; see also State v. Oliver, 210 N.C. App. 609, 613, 709 S.E.2d

503, 506 (2011). Then the trial court must make formal findings and note its findings

for the record. See State v. Smith, 152 N.C. App. 514, 528, 568 S.E.2d 289, 298 (2002)

(presumed error when the trial court does not note Rule 403 analysis on the record);

State v. Washington, 141 N.C. App. 354, 540 S.E.2d 388 (2000) (no error when the

trial court demonstrates a Rule 403 analysis in its ruling); State v. Rowland, 89 N.C.

App. 372, 383, 366 S.E.2d 550, 556 (1988) (holding 404(b) evidence is inadmissible

when a trial court fails to make findings of admissibility under Rule 404(b)).

      Accordingly, best practice dictates parties should challenge an expert’s

admissibility through a motion in limine. In the event a trial court delays its ruling

on the matter, or in the event a party fails to raise the challenge until the expert is



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                                    STATE V. ABRAMS

                               HUNTER, JR., J., concurring



called upon at trial, our trial courts should afford parties a voir dire hearing to

examine the witness and submit evidence into the record, which this Court can review

on appeal. Lastly, in ruling on the expert’s admissibility, the trial court should

identify the Daubert factors and make findings of fact and conclusions of law, either

orally or in writing, as to the expert’s admissibility.

      Here, the State provided sufficient evidence to show Agent Baxter met all the

Daubert requirements. I concur in holding the trial court did not commit error.




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