               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA18-1117

                                 Filed: 5 May 2020

Buncombe County, Nos. 17 CRS 80163-64, 17 CRS 80166, 17 CRS 338

STATE OF NORTH CAROLINA

              v.

CHARLES BLAGG, Defendant.


      Appeal by defendant from judgments entered 29 January 2018 by Judge Gary

M. Gavenus in Bumcombe County Superior Court. Heard in the Court of Appeals 9

April 2019.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph
      E. Herrin, for the State.

      Vitrano Law Offices, PLLC, by Sean P. Vitrano, for defendant-appellant.


      BERGER, Judge.


      Charles Blagg (“Defendant”) was convicted of possession with intent to sell and

deliver   methamphetamine,    possession   of   methamphetamine,      possession   of

marijuana, and attaining habitual felon status on January 11, 2018. Defendant was

sentenced on January 29, 2018, and he received concurrent sentences of 128 to 166

months and 50 to 72 months in prison. Defendant appeals, arguing the trial court

erred in denying his motion to dismiss the possession with intent to sell or deliver

methamphetamine charge. We disagree.
                                   STATE V. BLAGG

                                   Opinion of the Court



                         Factual and Procedural Background

      Defendant failed to appear when his cases were called for trial, and he was

tried in absentia.   The evidence at trial tended to show that Buncombe County

Sheriff’s Office Deputies Darrell Maxwell (“Deputy Maxwell”) and Jake Lambert

(“Deputy Lambert”), along with a third deputy, were conducting surveillance of a

home on Flint Hill Road in Weaverville on January 4, 2017.

      Deputy Maxwell had been with the Sheriff’s Office since 1999. At all relevant

times herein, Deputy Maxwell was a member of the Sheriff’s Community

Enforcement Team, which specifically addressed drug crimes and service of high-risk

warrants. He testified that he was familiar with the appearance, packaging, and

distribution of methamphetamine and marijuana.

      Deputy Maxwell was positioned across the street from the residence. Deputy

Maxwell observed a vehicle pull into the driveway of the residence, and a man went

inside “for approximately 10 minutes.” Deputy Maxwell did not see the man re-enter

the vehicle, but he saw the lights on the vehicle illuminate and the vehicle pull out of

the driveway.

      Deputy Maxwell followed the vehicle for approximately one mile. Deputy

Maxwell observed the vehicle cross the double yellow line as it approached a blind

curve, and he initiated a traffic stop. Defendant was driving the vehicle, and Deputy

Maxwell asked Defendant for his driver’s license to conduct a records check. Then,



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                                       STATE V. BLAGG

                                       Opinion of the Court



Deputy Maxwell conducted a pat-down search, which Defendant did not object to.

Deputy Maxwell recovered a pocketknife from Defendant’s person but noted there

was nothing unusual or uncommon about the discovery. Defendant denied having

any drugs or contraband.

       Deputy Maxwell asked Defendant for consent to search the vehicle. Defendant

responded: “[N]ot without a warrant[.]” Deputy Maxwell returned to his patrol unit

“to write [Defendant] a warning ticket for crossing over the double yellow line.” While

Deputy Maxwell was writing the warning citation, Deputy Lambert arrived with K-

9 Officer Jedi.

       Deputy Lambert had worked as a law enforcement officer for 13 years at the

time of this incident. He had worked with the K-9 Jedi for five years. Jedi was a

trained    narcotics     dog,    certified   in    detecting    the    odor    of    marijuana,

methamphetamine, cocaine, and heroin. Deputy Lambert, Jedi’s trained handler,

instructed Jedi to conduct an open-air sniff around Defendant’s vehicle. Jedi alerted

three times in a manner consistent with detection of an odor of narcotics. Deputy

Lambert conducted a partial search of the inside of the vehicle, and he located what

appeared to him to be methamphetamine.1




       1  We use the terms methamphetamine and “crystalline substance” throughout the opinion.
Methamphetamine refers to the substance found in a bag that was analyzed and determined to be 6.51
grams of methamphetamine. “Crystalline substance” refers to the separately packaged, untested
quantities of what Deputy Lambert believed to be methamphetamine that was packaged similarly to
the 6.51 grams of methamphetamine.

                                              -3-
                                   STATE V. BLAGG

                                  Opinion of the Court



      Defendant was arrested and a more thorough search of the vehicle was

conducted. Deputies discovered an off-white crystalline substance in a large bag and

several small bags individually wrapped; several unused syringes; one loaded

syringe; a baggie of cotton balls; and a camouflage “safe” that contained plastic

baggies and other drug paraphernalia. Deputies did not recover cash from Defendant

or from inside the vehicle. No cutting agents, scales, or business ledgers were found.

Deputies acknowledged that there was no evidence discovered on this occasion that

would indicate that Defendant was a high-level actor in the drug trade. However,

Defendant attempted to provide information on an individual wanted for drug

trafficking, and he acknowledged that he was going to meet with this individual.

      Lab analysis showed that the large bag contained 6.51 grams of

methamphetamine.        While the total weight of the methamphetamine and the

crystalline substance recovered from the vehicle was 8.6 grams, the contents of the

remaining baggies containing the crystalline substance were not tested pursuant to

crime lab procedures.

      Defendant was indicted for possession with intent to sell or deliver

methamphetamine, possession of methamphetamine, possession of marijuana,

possession of marijuana paraphernalia, and attaining habitual felon status.

Defendant’s case came on for trial on January 9, 2018. The possession of marijuana

paraphernalia charge was dismissed at the close of the State’s evidence. Defendant



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                                   STATE V. BLAGG

                                  Opinion of the Court



also moved to dismiss the possession with intent to sell or deliver methamphetamine

charge. He argued that the State did not prove Defendant had the intent to sell or

deliver methamphetamine. Defendant specifically argued:

             [T]here was no cash, no guns, no evidence of a hand to hand
             transaction[,] . . . [n]o books, notes, ledgers, money orders,
             financial records, documents, . . . [and] nothing indicating
             that [Defendant] is a dealer as opposed to a possessor or
             user[.]

      Defendant appeals the denial of his motion to dismiss.

                                 Standard of Review

      “We review the trial court’s denial of a motion to dismiss de novo.” State v.

Blakney, 233 N.C. App. 516, 518, 756 S.E.2d 844, 846 (2014) (citation omitted).

             A motion to dismiss for insufficient evidence is properly
             denied if 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. Substantial evidence is such
             relevant evidence as a reasonable mind might accept as
             adequate to support a conclusion. All evidence, both
             competent and incompetent, and any reasonable inferences
             drawn therefrom, must be considered in the light most
             favorable to the State.        Additionally, circumstantial
             evidence may be sufficient to withstand a motion to dismiss
             when a reasonable inference of defendant’s guilt may be
             drawn from the circumstances. If so, it is the jury’s duty to
             determine if the defendant is actually guilty.

Id. 518, 756 S.E.2d at 846 (citation omitted).

      “In making its determination, the trial court must consider all evidence

admitted, whether competent or incompetent, in the light most favorable to the State,


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                                    STATE V. BLAGG

                                   Opinion of the Court



giving the State the benefit of every reasonable inference and resolving any

contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223

(1994) (citation omitted). In addition, “we have held that in borderline or close cases,

our courts have consistently expressed a preference for submitting issues to the jury.”

State v. Coley, ___ N.C. App. ___, ___, 810 S.E.2d 359, 365 (2018) (purgandum).

                                       Analysis

       “[I]t is unlawful for any person . . . [to] possess with intent to manufacture,

sell or deliver, a controlled substance.” N.C. Gen. Stat. § 90-95(a)(1) (2019). “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.” Blakney, 233 N.C. App. at 519, 756 S.E.2d at 846.

      When direct evidence of a defendant’s intent to sell or deliver contraband is

lacking, 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 (2005) (citation omitted). Other relevant factors may be considered.

See e.g., State v. Thompson, 188 N.C. App. 102, 106, 654 S.E.2d 814, 817 (2008).

Because this inquiry is “fact-specific,” courts must consider the “totality of the

circumstances in each case . . . unless the quantity of drugs found is so substantial




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                                   STATE V. BLAGG

                                  Opinion of the Court



that this factor—by itself—supports an inference of possession with intent to sell or

deliver.” Coley, ___ N.C. App. at ___, 810 S.E.2d at 365.

      When viewed in the light most favorable to the State, the evidence as a whole

supported an inference that Defendant committed the offense of possession with

intent to sell or deliver methamphetamine sufficient to overcome Defendant’s motion

to dismiss.

      The quantity of a controlled substance alone will only “support the inference of

an intent to transfer, sell, or deliver” if it is “substantial”—i.e., more than would

reasonably be carried for personal use. Nettles, 170 N.C. App. at 105, 612 S.E.2d at

176 (citations and quotation marks omitted). Here, the trial court determined that

the State could not argue the 6.51 grams of methamphetamine in Defendant’s

possession was not for personal use. However, this does not negate the quantity

seized by officers, or the inferences that the jury could reasonably draw therefrom.

Defendant possessed at least 6.51 grams of methamphetamine, which is

approximately 23% of the quantity necessary to sustain a conviction for trafficking in

methamphetamine. This is not a small amount. See State v. McNeil, 165 N.C. App.

777, 783, 600 S.E.2d 31, 35 (2004) (finding that 5.5 grams of cocaine, which represents

19.64% of the trafficking amount, along with other relevant circumstances, was

sufficient for a charge of possession with intent to sell or deliver cocaine); State v.

Brennan, 247 N.C. App. 399, 786 S.E.2d 433 (2016) (unpublished) (concluding that



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                                     STATE V. BLAGG

                                     Opinion of the Court



defendant’s possession of 8.75 grams of methamphetamine, which represents 31.25%

of the trafficking amount, along with various drug paraphernalia was sufficient

evidence of the defendant’s intent to sell or deliver methamphetamine).

      In   addition,   the   State     presented     evidence   concerning   the   typical

methamphetamine exchange between seller and consumer. Deputy Maxwell testified

that, based on his training and experience, the typical                 transaction for

methamphetamine was “anywhere from half a gram to one gram.”

      There was no evidence that the amount of methamphetamine in Defendant’s

possession was consistent with personal use. Defendant had more than six times,

and up to 13 times, the amount of methamphetamine typically purchased. While it

is possible that Defendant had 13 hits of methamphetamine solely for personal use,

it is also possible that Defendant possessed that quantity of methamphetamine with

the intent to sell or deliver the same. See Brennan, 247 N.C. App. 399, 786 S.E.2d

433 (2016) (unpublished) (“[I]f a half gram is considered an average user amount, the

8.75 grams of methamphetamine found in defendant’s possession potentially

represented 17.5 user amounts.”). This issue is properly resolved by the jury.

      Moreover, the evidence also tended to show that Defendant had just left a

residence that had been under surveillance multiple times for drug-related

complaints. Defendant also admitted that he had plans to visit an individual charged

with trafficking drugs. While Defendant’s actions may be wholly consistent with an



                                            -8-
                                   STATE V. BLAGG

                                  Opinion of the Court



individual obtaining drugs for personal use, the jury could also reasonably infer that

he had the intent to sell or deliver methamphetamine because of the quantity of

drugs, the other circumstantial evidence, and his admission.

      In addition, the evidence tended to show that Defendant possessed

“paraphernalia or equipment used in drug sales.” Nettles, 170 N.C. App. at 107, 612

S.E.2d at 177 (purgandum).      Officers seized plastic baggies commonly used for

packaging and delivery of controlled substances, cotton balls used to filter liquid

methamphetamine, and syringes used to deliver methamphetamine into the body.

See N.C. Gen. Stat. § 90-113.21(a)(9), (a)(11) (2019). The baggies in Defendant’s

possession are paraphernalia or equipment used in methamphetamine transactions.

The following exchange occurred between the State and Deputy Maxwell concerning

packaging:

             Q.     Deputy Maxwell, based on your approximately five
             years of drug investigations while you were on the
             enforcement team, these plastic bags, based on your
             training and experience, is this consistent with your
             experience as to the dealing and transportation of
             methamphetamine?

             A.    It is.

             Q.   What are the ways            that      you   typically   see
             methamphetamine packaged?

             A.     Usually a seller will individually package             the
             substance. Usually in anywhere from half a gram to            one
             gram, depending on what the buyer is wanting.                 On
             occasion, they will weigh out and re-package it, and          sell


                                         -9-
                                   STATE V. BLAGG

                                   Opinion of the Court



             whatever the buyer is seeking.

      Thus, the evidence presented to the jury tended to show the plastic bags in

Defendant’s possession were typically used in the transportation and distribution of

methamphetamine.      Standing alone, possession of the baggies may be innocent

behavior. However, when viewed as a whole and in the light most favorable to the

State, the jury could reasonably infer that baggies in Defendant’s possession were

used for the packaging and distribution of methamphetamine.

      The question here is not whether evidence that does not exist entitles

Defendant to a favorable ruling on his motion to dismiss. That there may be evidence

in a typical drug transaction that is non-existent in another case is not dispositive on

the issue of intent. Instead, the question is whether the totality of the circumstances,

based on the competent and incompetent evidence presented, when viewed in the

light most favorable to the State, permits a reasonable inference that Defendant

possessed methamphetamine with the intent to sell or deliver.

      In this type of case, where reasonable minds can differ, the weight of the

evidence is more appropriately decided by a jury. Coley, ___ N.C. App. at ___, 810

S.E.2d at 365. Accordingly, the trial court did not err in denying the Defendant’s

motion to dismiss and submitting the case to the jury.

      NO ERROR.

      Chief Judge MCGEE dissents by separate opinion.



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                       STATE V. BLAGG

                       Opinion of the Court



Judge TYSON concurs.




                              -2-
No. COA18-1117 – State v. Blagg


       McGEE, Chief Judge, dissenting.


       The State had the burden of proving possession of methamphetamine with the

intent to sell or deliver it (“PWISD”). I believe the record evidence in this case shows

nothing more than “the normal or general conduct of people” who use

methamphetamine; thus, the evidence, at most, “raises only a suspicion . . . that

[D]efendant had the necessary intent to sell and deliver” methamphetamine. State

v. Turner, 168 N.C. App. 152, 158–59, 607 S.E.2d 19, 24 (2005) (citation omitted). I

therefore respectfully dissent.

       In order to survive a motion to dismiss, the evidence must be substantial—

such that “a reasonable inference of defendant’s guilt may be drawn from the

circumstances[.]” State v. Barnes, 334 N.C. 67, 75–76, 430 S.E.2d 914, 919 (1993).

“[V]iew[ing] the evidence in the light most favorable to the State, [and] making all

reasonable inferences from the evidence in favor of the State[,]” State v. Kemmerlin,

356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002) (citation omitted), the record evidence

in this case, as I discuss in detail later in my dissent, was only sufficient to allow a

reasonable inference of two relevant facts. First, a single bag containing 6.51 grams

of methamphetamine was found in the vehicle (the “vehicle”) Defendant was driving,

but the 6.51 grams of methamphetamine was “not sufficient to raise an inference that

[possession of] the [drug] was for the purpose of [sale or delivery].”2 State v. Wiggins,



       2  We cannot consider “evidence” that was not admitted at trial and, as the trial court firmly
warned the State, the State had not introduced any evidence that 6.51 grams was indicative of an
intent to sell, or more than a simple drug user might reasonably possess for solely personal use. The
trial court expressly forbade the State from making any inferences to the contrary at trial.
                                   STATE V. BLAGG

                                 McGee, C.J., dissenting



33 N.C. App. 291, 294–95, 235 S.E.2d 265, 268 (1977) (citation omitted). Second, an

undetermined number of clear plastic bags were found in the lockbox recovered from

the rear right floorboard of the vehicle. Due to the lack of record evidence concerning

the number of empty plastic bags recovered from the vehicle, or introduced at trial,

this Court cannot presume the existence of more than the smallest reasonable

number of empty bags—the testimony only indicated plural, or more than one bag.

Although the record evidence only indicates that more than one empty bag was

recovered—therefore a minimum of two—I will assume, arguendo, the record

evidence supported a reasonable inference that deputies recovered “a couple” or “a

few” empty plastic bags from the vehicle. State v. Mitchell, 336 N.C. 22, 28-29, 442

S.E.2d 24, 27-28 (1994), abrogated on other grounds as noted in State v. Rogers, 371

N.C. 397, 817 S.E.2d 150 (2018) (emphasis added) (“The trial court found that the

quantity of marijuana was sufficient to permit the jury reasonably to infer that it

weighed more than one and one-half ounces; but there is nothing in the record before

us to support that finding. The marijuana was not brought forward on appeal, and

we have not been able to see it for ourselves.”); see also Kemmerlin, 356 N.C. at 473,

573 S.E.2d at 889 (citation omitted) (“‘We have defined substantial evidence as that

amount of relevant evidence necessary to persuade a rational juror to accept a

conclusion.’”). Based on the facts before us, any inference that more than a “few”

empty plastic bags were found in the lockbox “would be based on mere speculation.”



                                          -2-
                                    STATE V. BLAGG

                                  McGee, C.J., dissenting



State v. Robbins, 319 N.C. 465, 487, 356 S.E.2d 279, 292 (1987). I believe the trial

court erred in denying Defendant’s motion to dismiss when the record evidence

demonstrated nothing more than possession of an amount of methamphetamine

consistent with personal use, packaged in a single bag, and a few empty plastic bags

recovered from the lockbox, which also contained personal items and paraphernalia

only indicating drug use—including a “loaded” syringe.

                                       I. Analysis

                                  A. Appellate Review

      The majority opinion argues that “[t]he question here is not whether evidence

that does not exist entitles Defendant to a favorable ruling on his motion to dismiss.

That there may be evidence in a typical drug transaction that is non-existent in

another case is not dispositive on the issue of intent.” While the absence of evidence

typically found in the possession of drug dealers is not necessarily “dispositive,”

decades of precedent establish that, in many cases, the lack of such evidence is

dispositive, and I believe that is the case in the matter before us. It is the State’s

burden to present substantial evidence supporting Defendant’s intent to sell, and

when the State fails to present sufficient evidence of an intent to sell, this Court must

remand for entry of an order dismissing that charge:

             There was no testimony that the drugs were packaged,
             stored, or labeled in a manner consistent with the sale of
             drugs. Defendant’s actions were not similar to the actions
             of a drug dealer. . . . . A large amount of cash was not


                                           -3-
                                   STATE V. BLAGG

                                 McGee, C.J., dissenting



             found. The police officers found four hundred and eleven
             dollars on defendant’s person, which defendant stated was
             part of the money he received from his five hundred and
             forty-seven dollar social security check. . . . . Also, the
             officers did not discover any other money on the premises.
             The officers found four to five crack rocks in the parked car.
             Although the 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. See State v. Rich, 87
             N.C. App. 380, 361 S.E.2d 321 (1987) (indicating an intent
             to sell or deliver drugs was established where twenty
             grams of cocaine was found along with a chemical used for
             diluting cocaine and one hundred small plastic bags in
             close proximity to the cocaine). Viewed in the light most
             favorable to the State, the evidence tends to indicate
             defendant was a drug user, not a drug seller.

State v. Nettles, 170 N.C. App. 100, 107, 612 S.E.2d 172, 176–77 (2005). The Nettles

Court relied in part on State v. Turner, in which this Court reasoned:

             The State points to no other evidence or circumstances
             [than an officer’s opinion that the defendant was carrying
             more crack cocaine than a normal drug user would possess]
             that in any way suggest that defendant had an intent to
             sell or deliver the crack cocaine contained in the tube lying
             on the loveseat between defendant and Ishmar Smith.

             The State, for example, presented no evidence of
             statements by defendant relating to his intent, of any sums
             of money found on defendant, of any drug transactions at
             that location or elsewhere, of any paraphernalia or
             equipment used in drug sales, of any drug packaging
             indicative of an intent to sell the cocaine, or of any other
             behavior or circumstances associated with drug
             transactions. The State’s entire case rests only on a
             deputy’s opinion testimony about what people “normally”
             and “generally” do. The State has cited no authority and
             we have found none in which such testimony—without any


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                                    STATE V. BLAGG

                                  McGee, C.J., dissenting



             other circumstantial evidence of a defendant’s intent—was
             found sufficient to submit the issue of intent to sell and
             deliver to the jury.

State v. Turner, 168 N.C. App. 152, 158, 607 S.E.2d 19, 24 (2005) (citation omitted).

Further:

             In State v. Wiggins, 33 N.C. App. 291, 235 S.E.2d 265
             (1977), defendant was found with less than one-half pound
             of marijuana in his possession. No weighing scales, rolling
             papers or other paraphernalia were found. The Court held
             that this small quantity of marijuana alone, without
             additional evidence, was insufficient to raise the inference
             that defendant intended to sell the substance.

State v. King, 42 N.C. App. 210, 213, 256 S.E.2d 247, 249 (1979); see also State v.

Battle, 167 N.C. App. 730, 733, 606 S.E.2d 418, 421 (2005) (citation omitted) (“A

relatively small drug quantity alone, ‘without some additional evidence, is not

sufficient to raise an inference’” that the drug was possessed for any reason other

than “only for personal use[.]”). As in Battle, in this case the State did not introduce

evidence that the amount of the drug found in the vehicle was more than an amount

“only for personal use[.]” Id. In Battle:

             [T]he State presented little evidence supporting
             Defendant’s alleged intent to sell cocaine. Only 1.9 grams
             of compressed powder cocaine—little enough, according to
             the State’s own chemist, to have been only for personal
             use—was found. The investigators found no implement
             with which to cut the cocaine, no scales to weigh cocaine
             doses, no containers for selling cocaine doses.         The
             investigators further searched Defendant’s car and found
             neither drugs nor paraphernalia. The State’s meager
             evidence of intent to sell cannot be considered “substantial


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                                         STATE V. BLAGG

                                      McGee, C.J., dissenting



               evidence” supporting the charge of possession of cocaine
               with intent to sell.

Id. (citation omitted). Because the amount of methamphetamine in this case must be

considered relatively minimal—as an amount regularly possessed by simple drug

users, the State was required to introduce substantial additional evidence sufficient

to allow a reasonable inference that Defendant intended to sell the drug—i.e., items

generally associated with drug dealing, testimony about Defendant’s activities

suggesting drug selling, and expert testimony making the connection between the

evidence presented and drug dealing, when such a connection was outside the

common knowledge of a typical juror.3 The other “items” usually associated with drug

dealing rather than drug use are those discussed in Nettles and its progeny, such as

large amounts of cash, mostly in smaller denominations; scales to weigh and divide

the drug into usual sales amounts; tools for “safely” dividing and packaging the drug

with minimal loss of product; a cutting agent to mix in with the drug in order to dilute

it and allow the dealer to sell more units; numerous bags or other containers to contain

the weighed and divided drug, and promote efficient and discreet delivery; numerous

individual units of the drug already packaged in amounts typical for dealing, and

ready to sell. The State would also have to present expert testimony explaining this




       3  An obvious example of behavior suggestive of drug dealing would be if Defendant was
observed in an area known for drug sales activity, remained in the same location for a long period of
time, during which Defendant had multiple brief interactions with different people in which Defendant
was observed exchanging small packages for cash

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                                   STATE V. BLAGG

                                 McGee, C.J., dissenting



evidence and why it was indicative of drug sales and not just drug use. Nettles, 170

N.C. App. at 107, 612 S.E.2d at 176; see also Turner, 168 N.C. App. at 158, 607 S.E.2d

at 24; Battle, 167 N.C. App. at 733, 606 S.E.2d at 421; King, 42 N.C. App. at 213, 256

S.E.2d at 249. I would hold the State failed to meet its burden in this case.

                               B. The Lack of Evidence

      In this case, the State’s additional evidence consisted of a few empty plastic

bags. The State presented no expert, or even lay, testimony linking these empty bags

to an intent to sell, rather than use, the methamphetamine. “Viewed in the light

most favorable to the State, the evidence tends to indicate defendant was a drug user,

not a drug seller.” Nettles, 170 N.C. App. at 107, 612 S.E.2d at 176–77. There was

also no testimony that any of Defendant’s actions after the stop, during the search,

or during and after Defendant’s arrest, were indicative of an intent to sell the

methamphetamine recovered from the vehicle. The State contends in the fact section

of its brief that Defendant “voluntarily told [the deputies] during the stop that ‘he

would give [them] Haywood’s most wanted’ in reference to ‘a female who was wanted

for trafficking heroin or something of that nature.’” While this is factually correct,

Defendant’s statements carry very little relevance, as is indicated by the State’s

decision not to reference them in the argument section of its brief. Deputy Maxwell

testified: Defendant “advised me that he was supposed to meet her.          He didn’t

elaborate on the reason to meet her[.] I can’t remember the exact conversation at



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                                   STATE V. BLAGG

                                 McGee, C.J., dissenting



that point.” Deputy Maxwell testified concerning Defendant’s claim that he could

provide information about an alleged drug dealer that it “was not unusual. I mean

it’s pretty common once you arrest somebody for possession of some sort of drugs,

they want to try to help themselves.” Deputy Maxwell had never heard of the woman

Defendant was calling “Haywood’s most wanted.” He did not remember the specifics

of Defendant’s “offer” to help, and nothing in the record suggests Deputy Maxwell or

anyone else thought Defendant’s statements warranted any follow-up.         Deputy

Lambert testified that Defendant “was reaching out trying to figure out how he could

assist himself with his bond or his charges that he may incur.”      There was no

testimony that Defendant’s attempt to get help “with his bond” “or [the] charges he

may incur” in this manner was at all suggestive that Defendant was a drug dealer

instead of someone “arrest[ed] [] for possession of … drugs[.]”

      Assuming, arguendo, that any empty plastic bags were properly introduced

into evidence, based upon the record evidence, it was impermissible for either the

trial court or the jury to infer that more than “a few” empty plastic bags were

recovered, or that possession of any number of empty bags constituted evidence from

which it could be inferred that Defendant was a drug dealer instead of a simple drug

user. There is absolutely no record evidence from which we can infer that the jury,

or the trial court, had any idea how many empty bags were found in the vehicle. We

cannot assume the existence of facts not supported by the record, nor assume the



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                                    STATE V. BLAGG

                                  McGee, C.J., dissenting



State met its burden on an issue if the record does not support such a determination.

Mitchell, 336 N.C. at 28-29, 442 S.E.2d at 27-28.

      When, as in this case, direct evidence of a defendant’s intent to sell or deliver

a controlled substance is lacking, 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.” Nettles, 170 N.C.

App. at 106, 612 S.E.2d at 176 (citation omitted). Other relevant factors may be

considered as well, see, e.g. State v. Thompson, 188 N.C. App. 102, 106, 654 S.E.2d

814, 817 (2008), but “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.” State v. Coley,

257 N.C. App. 780, 788, 810 S.E.2d 359, 365 (2018) (emphasis added); see also Nettles,

170 N.C. App. at 107, 612 S.E.2d at 176; Turner, 168 N.C. App. at 158, 607 S.E.2d at

24; Battle, 167 N.C. App. at 733, 606 S.E.2d at 421; King, 42 N.C. App. at 213, 256

S.E.2d at 249.

      The only testimony concerning packaging of the drug was the following

testimony by Deputy Maxwell given immediately after he had testified about the

photographs entered into evidence showing the plastic bags with unknown

substance(s) on the scale:



                                           -9-
                                   STATE V. BLAGG

                                 McGee, C.J., dissenting



             Q. Deputy Maxwell, based on your approximately five
             years of drug investigations while you were on the
             enforcement team, these plastic bags, based on your
             training and experience, is this consistent with your
             experience as to the dealing … of methamphetamine?

             A. It is.

             Q. What are the ways that                 you   typically   see
             methamphetamine packaged?

             A. Usually a seller will individually package the substance.
             Usually in anywhere from half a gram to one gram,
             depending on what the buyer is wanting. On occasion, they
             will weigh out and re-package it, and sell whatever the
             buyer is seeking.

First, Deputy Maxwell’s opinion testimony that the “plastic bags” he had just seen in

photographs—the three plastic bags containing crystalline substance(s) being

weighed—were “consistent with … the dealing … of methamphetamine[,]” was based

on the improper assumption that all three bags contained methamphetamine. This

constituted “only on a deputy’s opinion testimony about what people ‘normally’ and

‘generally’ do”—the kind of testimony found insufficient, standing alone, “to submit

the issue of intent to sell and deliver to the jury.” Turner, 168 N.C. App. at 158, 607

S.E.2d at 24 (citation omitted). Second, the methamphetamine in this case was

packaged in a single bag, in a quantity at least six times more than the one-half-ounce

to one-ounce amounts Deputy Maxwell testified were standard amounts of

methamphetamine when packaged for sale; the deputies recovered no one-half to one

gram amounts of methamphetamine—packaged in a manner facilitating concealment


                                         - 10 -
                                          STATE V. BLAGG

                                       McGee, C.J., dissenting



and quick sale—whether in small plastic bags or any other type of container.

According to the record evidence, the methamphetamine in this case was not

packaged in a manner normally associated with an intent to sell the drug. Nettles,

170 N.C. App. at 107, 612 S.E.2d at 176 (“There was no testimony that the drugs were

packaged, stored, or labeled in a manner consistent with the sale of drugs.”).

       “Defendant’s actions were not similar to the actions of a drug dealer.” Id. at

107, 612 S.E.2d at 176. Deputy Maxwell testified that he did not observe Defendant

doing anything out of the ordinary prior to stopping him—no hand-to-hand

transactions with another person, for example. “I did not witness any transaction.”

In fact, Defendant was not observed interacting with anyone. The only reason Deputy

Maxwell’s suspicions were raised is because the residence was under surveillance,

Defendant drove there and spent approximately ten minutes inside, then drove

away.4 Deputy Maxwell testified he had never seen Defendant or his vehicle visit

this residence before, and no evidence was produced that anyone who lived in the

residence, or anyone other than Defendant who had visited the residence, was ever

involved in drug sales; but, most relevantly, prior to Defendant’s arrest. As noted

above, the amount of the drug in this case must be treated as an amount consistent

with personal use, because, as the trial court clearly ruled, the State offered no


       4 There is no record evidence that the residence was under surveillance due to suspected illegal
drug activity. The trial court sustained Defendant’s objection to Deputy Maxwell’s testimony that he
was watching the residence due to “complaints” concerning “suspected drug activity[,]” and there was
no other testimony in evidence to that effect.

                                                - 11 -
                                    STATE V. BLAGG

                                  McGee, C.J., dissenting



evidence that would allow the jury to infer otherwise. Id. at 106, 612 S.E.2d at 176

(“it cannot be inferred that defendant had an intent to sell or distribute from such

a[n] . . . amount alone”).

       No cash was found on Defendant or in the vehicle. See Id. at 107, 612 S.E.2d

at 176-77 (Evidence was insufficient where: “A large amount of cash was not found.

The police officers found four hundred and eleven dollars on defendant’s person,

which defendant stated was part of the money he received from his five hundred and

forty-seven dollar social security check.” “Also, the officers did not discover any other

money on the premises.”); see also Wilkins, 208 N.C. App. at 732, 703 S.E.2d at 810

(citation omitted) (the Court considered “the fact that defendant was carrying

$1,264.00 in cash” in denominations of between $1.00 and $20.00 bills, but

determined this evidence, considered with the State’s other evidence, was not

sufficient to support an intent to sell or deliver). Deputy Maxwell agreed, “based on

[his] training and experience,” that “drug dealers maintain on hand large amounts of

U.S. currency” “so that they can maintain and finance their operation[.]” When asked

to confirm that he “found zero money on” Defendant, Deputy Maxwell testified “I did

not confiscate any currency from [Defendant].” Deputy Maxwell testified it was

“common” for drug dealers to keep “ledgers” that “[u]sually [contain] names—and

maybe not full names, but names, maybe money owed or—that’s been my experience.”




                                          - 12 -
                                   STATE V. BLAGG

                                 McGee, C.J., dissenting



He also testified “that drug dealers often maintain books . . . about their drug

dealing[.]” However, no such books or ledgers were found in the vehicle.

      Deputy Maxwell testified that methamphetamine is often packaged in plastic

bags for sale—therefore plastic bags can be considered paraphernalia depending on

the facts introduced at trial. In this case, although the State appears to believe it

introduced testimony that possession of empty plastic bags was an indication of an

intent to sell, there is no testimony to that effect in the record. Nor was there any

testimony that it was unusual to find a few empty plastic bags—or a large number of

empty plastic bags—in the vehicle of a simple drug user.          Further, there was

absolutely no evidence at trial that any of the other paraphernalia found in the

vehicle—an unknown number of commonly available syringes in the original small,

unopened store packaging; one “loaded” syringe; cotton balls; and one rubber band—

was indicative of an intent to sell methamphetamine. This is likely because these

items suggest methamphetamine use, not an intent to sell the drug.            Without

appropriate testimony concerning these paraphernalia items, there was no evidence

from which an intent to sell, rather than use, could be properly inferred from their

presence in the vehicle. Id. at 107, 612 S.E.2d at 177 (citation omitted) (there was no

“drug paraphernalia typically used in the sale of drugs found [on the defendant or]

on the premises”).




                                         - 13 -
                                  STATE V. BLAGG

                                McGee, C.J., dissenting



      There was no evidence of other behaviors or items normally associated with

drug sales. There was no diluting or “cutting” agent found, id.; Deputy Maxwell

testified: “Drug dealers use [cutting agents] so when they get product, they can

minimize it with rock salt and sell more”; and no scales to weigh and divide the drug

into usual sales amounts were found, King, 42 N.C. App. at 213, 256 S.E.2d at 249.

Deputy Maxwell testified that “in [his] training and experience, most drug dealers,

they have scales so they know what they’re selling;” and scales are “very important

for a drug dealer so they don’t get ripped off” but “[t]here were no scales in th[e]

vehicle.” There was no testimony that Defendant had tools for “safely” dividing and

packaging the drug with minimal loss, Battle, 167 N.C. App. at 733, 606 S.E.2d at

421; that he had numerous bags or other containers to contain the weighed and

divided drug and promote efficient and discreet delivery, Nettles, 170 N.C. App. at

106, 612 S.E.2d at 176; nor that he possessed numerous individual units of the drug

already packaged in amounts typical for dealing, and ready to sell.

      There was testimony that drug dealers often have multiple cell phones on

which they conduct their business. A single cell phone was recovered from Defendant,

taken into evidence, and forensically examined. No evidence supporting Defendant’s

involvement in the sale of drugs was recovered from Defendant’s single cell phone.

The State would also have to present expert testimony explaining this evidence and

why it was indicative of drug sales and not just drug use. Mitchell, 336 N.C. at 29,



                                        - 14 -
                                    STATE V. BLAGG

                                  McGee, C.J., dissenting



442 S.E.2d at 28 (“The jury may not find the existence of a fact based solely on its in-

court observations where the jury does not possess the requisite knowledge or

expertise necessary to infer the fact from the evidence as reflected in the record.”);

Nettles, 170 N.C. App. at 108, 612 S.E.2d at 177 (“the police officer did not testify that

defendant possessed an amount that was more than a drug user normally would

possess for personal use”); Turner, 168 N.C. App. at 158, 607 S.E.2d at 24 (“The

State’s entire case rests only on a deputy’s opinion testimony about what people

“normally” and “generally” do. The State has cited no authority and we have found

none in which such testimony—without any other circumstantial evidence of a

defendant’s intent—was found sufficient to submit the issue of intent to sell and

deliver to the jury.”).

                               C. The State’s Arguments

                                1. Arguments on Appeal


       “‘When the evidence is . . . sufficient only to raise a suspicion or conjecture as

to . . . the commission of the offense . . ., the motion to dismiss must be allowed.’” Id.

I assume, arguendo, the State is correct that Defendant possessed a few empty plastic

bags “which can be used in order to divide drugs into smaller quantities for sale.”

However, the State is incorrect in its assertion that the record evidence shows that

the empty bags were “numerous.” The State introduced the plastic bags into evidence

only generally—as part of the contents of the lockbox. There was no testimony


                                          - 15 -
                                   STATE V. BLAGG

                                 McGee, C.J., dissenting



concerning the number of empty bags, the size of the empty bags, a description of the

empty bags, any potential relevance of the empty bags or, more specifically, how the

presence of empty bags constituted evidence of methamphetamine dealing rather

than use.

      The remainder of the State’s arguments are also either based on evidence not

introduced at trial, or are not supported by any law, and should be summarily

dismissed. No evidence supports the State’s characterization of “[t]he amount of the

drugs” recovered as “substantial[.]” There was no testimony that 6.51 grams of

methamphetamine was a “substantial” amount, and the jury was not permitted to

make that determination without expert testimony to that effect. There was no

testimony comparing the 6.51 ounces of methamphetamine recovered to the amount

required for a trafficking charge, 28 grams, nor any testimony explaining the

relevance of any such comparison. The trial court properly prohibited the State from

characterizing 6.51 grams of the drug as more than was consistent with personal use.

             When determining whether an element exists, the jury
             may rely on its common sense and the knowledge it has
             acquired through everyday experiences. Thus, the jury
             may, based on its observations of the defendant, assess
             whether the defendant is older than twelve. The jury’s
             ability to determine the existence of a fact in issue based
             on its in-court observations, however, is not without
             limitation. The jury may not find the existence of a fact
             based solely on its in-court observations where the jury
             does not possess the requisite knowledge or expertise
             necessary to infer the fact from the evidence as reflected in
             the record.


                                         - 16 -
                                     STATE V. BLAGG

                                  McGee, C.J., dissenting




Mitchell, 336 N.C. at 29, 442 S.E.2d at 28. The average juror does not have any

personal familiarity with methamphetamine, its packaging, the usual tools used to

portion and package methamphetamine, or what amount of the drug would constitute

a “substantial” amount. Id. at 30, 442 S.E.2d at 28 (“Unlike age, the weight of a given

quantity of marijuana is not a matter of general knowledge and experience. ….

Human characteristics associated with various ages are matters of common

knowledge. The same cannot be said regarding the weight of various quantities of

marijuana. This is a matter familiar only to those who regularly use or deal in the

substance, who are engaged in enforcing the laws against it, or who have developed

an acute ability to assess the weight of objects down to the ounce. The average juror

does not fall into any of these categories.”).

      The State also makes an incorrect statement of fact and law where it asserts:

“Defendant was in possession of a controlled substance, that was visually identified

by law enforcement as methamphetamine. This was confirmed as methamphetamine

by the testimony of [] Cha[]ncey[,] who performed scientific testing on the substances

presented and confirmed that the substances were methamphetamine, as testified to

by Detective Maxwell.” As the trial court properly understood, a law enforcement

officer’s visual inspection of a crystalline substance is not sufficient to identify that

substance as methamphetamine. “The North Carolina Supreme Court held in Ward

that ‘[u]nless the State establishes before the trial court that another method of


                                          - 17 -
                                    STATE V. BLAGG

                                  McGee, C.J., dissenting



identification is sufficient to establish the identity of the controlled substance beyond

a reasonable doubt, some form of scientifically valid chemical analysis is required.’”

State v. Carter, 255 N.C. App. 104, 106–07, 803 S.E.2d 464, 466 (2017) (citations

omitted). For this reason, whenever the State’s case included either deputy’s opinion

that the crystalline substance(s) were methamphetamine, the trial court instructed

the jury to discount that testimony, and not consider it in any manner during their

deliberations.

      Further, Chancey did not perform “scientific testing on the substances” and

“confirm[] that the substances were methamphetamine, as testified to by Deputy

Maxwell.” Only one bag, and thus only one “substance,” was tested. Chancey did not

confirm the deputies’ opinions, which were not evidence, she conducted testing on a

single bag containing a crystalline substance and determined, scientifically, that the

single bag contained 6.51 grams of methamphetamine—with a trace amount of an

unidentified substance.    The additional crystalline substance(s) contained in the

plastic bags recovered from the vehicle were never tested, and the trial court clearly

instructed the State and the jury that no inferences concerning the contents of the

additional substance-containing bags could be made: “Three of those bags there is no

evidence that they are methamphetamine. You understand that?” Further, the State

incorrectly argues that Chancey “did not test the other items presented as the weight

of [the bag containing 6.51 grams of methamphetamine] in and of itself met the



                                          - 18 -
                                    STATE V. BLAGG

                                  McGee, C.J., dissenting



statutory weight requirements for the charges presented.”           This statement is

erroneous because there is no “statutory weight requirement” for the charge of

PWISD. Therefore, there could not have been a decision by the trial court or the jury

that 6.51 grams met any “statutory requirement.”

         The State further argues, “[m]ore importantly the other items found within []

Defendant’s vehicle infer the intent to sell[.]” The State only mentions two “other

items”: “[N]umerous syringes which can be used to deliver drugs in the system of a

purchaser. More importantly, there were numerous baggies, which can be used in

order to divide drugs into smaller quantities for sale.” As noted, the syringes could

not serve as evidence of Defendant’s intent to sell because there was no testimony or

other evidence introduced at trial allowing such an inference. There is no evidence

concerning the number of syringes found in the vehicle, so there is nothing from which

one could determine the presence of “numerous” syringes. The State’s argument on

appeal does not demonstrate more than that Defendant was in possession of an

amount of methamphetamine small enough “to have been only for personal use[,]”

Battle, 167 N.C. App. at 733, 606 S.E.2d at 421, and a few empty plastic bags, the

significance of which was not established at trial. Mitchell, 336 N.C. at 29, 442 S.E.2d

at 28.

                                 2. Arguments at Trial




                                          - 19 -
                                   STATE V. BLAGG

                                 McGee, C.J., dissenting



      The State’s arguments at trial, made after the close of all the evidence, also

mainly focused on the empty bags. As noted above, the only testimony concerning

packaging of the drug was the opinion testimony of Deputy Maxwell, which only

undercut the State’s case by introducing evidence that the usual packaging of

methamphetamine for sale was in separate one-half-ounce to one-ounce amounts—

not a single bag containing 6.51 ounces. Further, no empty plastic bags had been

introduced into evidence at this time, so Deputy Maxwell’s testimony was limited to

the several plastic bags containing crystalline substance(s) that were depicted in the

photographs he had just been shown.

      Deputy Maxwell’s answer was sufficient to permit an inference that

methamphetamine packaged for sale is “usually” “individually package[d]” “in

anywhere from half a gram to one gram, depending on what the buyer is wanting.”

In this case, the deputies recovered a single bag containing 6.51 grams of

methamphetamine—i.e., an amount and method of packaging methamphetamine

that was not, according to the testimony, “usual” if the intent was to sell. Deputy

Maxwell also testified there was a second, not “usual” packaging method, stating: “On

occasion, they will weigh out and re-package it, and sell whatever the buyer is

seeking.”   Taken together, this testimony is some evidence that occasionally

methamphetamine dealers carry larger quantities of the drug in a single container

and re-package it for sale only after the buyer specifies an amount, but the “usual”



                                         - 20 -
                                          STATE V. BLAGG

                                       McGee, C.J., dissenting



method is to prepackage one-half gram to one gram amounts and carry those for sale.

Therefore, the single bag containing 6.51 grams of methamphetamine was not

packaged the way a dealer would “usually” package the drug for sale, and the lack of

common tools for dividing, weighing, and repackaging for sale suggests use, not

dealing. The bags containing untested substance(s) could not be considered by the

trial court or the jury as evidence of the Nettles factor of “packaging.”5

       There was no testimony that the “few” empty plastic bags found in the lockbox

with the “loaded” syringe, used “blunts,” Chapstick, a personal letter, a single rubber

band, and cotton balls, were at all suggestive of an intent to sell any of the

methamphetamine—which was recovered from the console. There was no testimony

that it was uncommon for a drug user to have a “few” empty bags in his vehicle for

personal use, whether related to methamphetamine or anything else.

       The syringes cannot constitute evidence in this case supporting an intent to

sell because there was no testimony, expert or otherwise, that could have possibly

linked the syringes to any intent to sell. Neither the trial court nor the jury could

infer such a connection without expert testimony because whether or not drug dealers

also typically possess “loaded” or new syringes is not a fact of common knowledge.




       5  The State asserts in its brief that “Chauncey [sic] … performed scientific testing on the
substances … and confirmed that the substances were methamphetamine, as testified to by Detective
[sic] Maxwell.” This is simply incorrect. A single substance was tested from a single bag. As the trial
court told the State: “Three of those bags there is no evidence that they are methamphetamine. You
understand that?”

                                                - 21 -
                                   STATE V. BLAGG

                                 McGee, C.J., dissenting



Mitchell, 336 N.C. at 29, 442 S.E.2d at 28 (“The jury may not find the existence of a

fact based solely on its in-court observations where the jury does not possess the

requisite knowledge or expertise necessary to infer the fact from the evidence as

reflected in the record.”). To a lay person, an unknown but small number of syringes

would be at least as likely, if not more likely, to indicate drug use than an intent to

sell. “Viewed in the light most favorable to the State, the evidence tends to indicate

defendant was a drug user, not a drug seller.” Nettles, 170 N.C. App. at 107, 612

S.E.2d at 176–77. As noted above, the forensic examination of Defendant’s single cell

phone turned up no evidence that Defendant was involved in the sale of

methamphetamine or any other drug. Other than the “few” plastic bags, there was

no paraphernalia found that was even arguably indicative of an intent to sell the

methamphetamine.

      In response to this lack of evidence, Defendant argued the PWISD charge

should be dismissed because “there was no cash, no guns, no evidence of a hand to

hand transaction. No evidence of people. No books, notes, ledgers, money orders,

financial records, documents, guns. Nothing indicating that [Defendant] is a dealer

as opposed to a possessor or user[.]” “They have to do something other than just say,

hey, you had this. There has to be some testimony about something else, and we don’t

have any of that. No evidence of confederates, no evidence of conspiracy, no evidence

of—again, a sale, hand to hand transaction. Nothing else in the car. Nothing.”



                                         - 22 -
                                    STATE V. BLAGG

                                  McGee, C.J., dissenting



         Contrary to the State’s argument to the trial court, there was no record

evidence of the number of empty bags because the State did not have Detective

Maxwell count any empty plastic bags during his testimony; instead, the State

counted the bags itself while the jury was in the jury room awaiting closing

arguments. If the trial court considered any of this non-evidence, it would constitute

error.

         The majority opinion generally appears to consider the empty plastic bags as

the most important factor in support of the trial court’s denial of Defendant’s motion

to dismiss, but it also discusses additional issues or alleged facts that it seems to find

relevant. The majority notes that Deputy Maxwell “estimated that this was the fifth

time he had participated in a stake out of [the] residence[,]” and surmises “the

evidence … tend[s] to show that Defendant had just left a residence that had been

under surveillance multiple times for drug-related complaints.” As noted, the trial

court sustained Defendant’s objection to Deputy Maxwell’s testimony that he was

watching the residence due to “complaints” concerning “suspected drug activity”; here

was no evidence presented at trial that the “residence” was “under surveillance

multiple times for drug-related complaints.” Deputy Maxwell also testified that he

had never seen Defendant or the car Defendant was driving at the residence prior to

the evening of 4 January 2017.




                                          - 23 -
                                   STATE V. BLAGG

                                 McGee, C.J., dissenting



      The majority opinion also states that “Deputy Lambert conducted a partial

search of the inside of the vehicle, and he located what appeared to him to be

methamphetamine.” It further states that the untested “[c]rystalline substance”

recovered from the vehicle and packaged separately from the tested bag containing

6.51 grams of methamphetamine was “what Deputy Lambert believed to be

methamphetamine.” P.3 n.1       Deputy Lambert did not testify at trial that the

crystalline substance “appeared to be methamphetamine” but testified that he

located “the black container that had the white crystal substance in it.” While on the

scene, Deputy Lambert did tell Deputy Maxwell that he had found what he believed

to be methamphetamine in the vehicle, and this statement was captured by both

deputies’ body cams. When this comment came up on the body cam footage, the trial

court requested the video be paused and instructed the jury: “Now Ladies and

Gentlemen,    you   will   disregard   that    statement   that   it   appears   to   be

methamphetamine. You will not consider that for any purpose in this trial. Each

of you understand that?” There was no evidence admitted at trial that either deputy

believed any of the crystalline substance(s) were methamphetamine, and the fact that

Deputy Lambert made such a statement to Deputy Maxwell during the course of the

search of the vehicle is irrelevant to our review. The only evidence establishing the

presence of methamphetamine in the vehicle was the testimony of Chancey, who




                                         - 24 -
                                    STATE V. BLAGG

                                  McGee, C.J., dissenting



testified that a single plastic bag recovered from the vehicle contained 6.51 grams of

methamphetamine.

      There is no record evidence of the “total weight” of the methamphetamine

combined with the other crystalline substance(s) recovered from the vehicle.

Although Chancey testified that she determined the “gross” weight of the non-tested

substance(s), she did not provide those numbers at trial. The trial court cautioned

the State that it could not use the untested bags as evidence of “the quantity of the

substance [i.e. the methamphetamine].”

      Any inference that the untested crystalline substance(s) were also

methamphetamine, or any guess as to the weight of those substance(s), would not be

based upon any evidence admitted at trial and, therefore, would be improper. On

direct examination Deputy Maxwell testified concerning one of the State’s exhibits:

“That is a large bag of white crystal substance, what I believed to be

methamphetamine.” Defendant objected, and the trial court responded: “Sustained

as to what he believes it to be. Ladies and Gentlemen, you’ll disregard that. You will

not consider it for any purpose in this trial.” The trial court cautioned the State at

trial: “What you’re asking [the jury] to do is find [the untested substances in the other

plastic bags are also] methamphetamine. The State cannot do it under the evidence

in this case. Now if you want me to give an instruction to this jury that this Court

instructs this jury that based upon the evidence they cannot find the items in [the



                                          - 25 -
                                        STATE V. BLAGG

                                     McGee, C.J., dissenting



additional bags] are methamphetamine, then I’ll do that[.] But they can’t make that

finding. There’s no evidence.” (Emphasis added). The trial court later stated: “I’m

going to instruct the State that they are not to tell this jury that the jury can look at

those four packages and make a determination by the jury that the other three that

were not tested are—is methamphetamine.”6 The untested substance(s) are not

relevant.

       No evidence was introduced that 6.51 grams of methamphetamine “is not a

small amount[,]” and without testimony to that effect, it would have been an improper

inference for the trial court or the jury to draw in this case. We are limited to the

evidence of record, which is that Defendant possessed exactly 6.51 grams of

methamphetamine. As the trial court noted, the State only presented evidence of

6.51 grams of methamphetamine recovered from the vehicle. We cannot infer the

possibility that there was more than 6.51 grams of methamphetamine recovered

when there is no record evidence that would allow such an assumption. The trial

court cautioned the State it could not argue 6.51 grams of methamphetamine was an

amount greater than one would normally carry for personal use. “Neither will you[,

the State,] be able to argue to this jury that [the 6.51 grams] was more than [an

amount normally carried for] personal use, because there’s no evidence of that.”



       6  It is not clear what the “fourth” package is in reference to. Only three bags containing
crystalline substance(s) were introduced by Deputy Maxwell through the photographs contained in
the record. However, a fourth bag of untested substance would add nothing to the State’s case.

                                              - 26 -
                                    STATE V. BLAGG

                                  McGee, C.J., dissenting



(Emphasis added). See Nettles, 170 N.C. App. at 108, 612 S.E.2d at 177 (“[T]he police

officer did not testify that defendant possessed an amount that was more than a drug

user normally would possess for personal use.”). In other words, the State could not

argue the weight of the methamphetamine as a factor indicating Defendant had the

intent to sell or deliver the drugs instead of the intent to consume all 6.51 grams

himself. This meant the 6.51 grams of methamphetamine was sufficient to support

the possession charge, but the State would have to rely almost entirely on additional

evidence to meet its burden of proving the element of Defendant’s intent to sell or

deliver for the PWISD charge.

      “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.”

Ward, 364 N.C. at 147, 694 S.E.2d at 747. “[T]he expert witness testimony required

to establish that the substances introduced here are in fact controlled substances

must be based on a scientifically valid chemical analysis and not mere visual

inspection.” Id. at 142, 694 S.E.2d at 744.

      There was no testimony concerning the amount of methamphetamine drug

users typically “purchase.” There was no evidence from which it could be inferred

that a drug user was unlikely to possess 6.51 grams of methamphetamine for personal

use. There was no testimony concerning the amounts of methamphetamine generally



                                          - 27 -
                                   STATE V. BLAGG

                                 McGee, C.J., dissenting



purchased for personal use, so any attempt to make that determination is

speculation. I do agree with the general concept that “[w]hile it is possible that

[someone could possess 6.51 grams of] methamphetamine solely for personal use, it

is also possible that [person] possessed that quantity of methamphetamine with the

intent to sell or deliver the same.” Both of these things are possible and deciding

which one is correct requires speculation. Robbins, 319 N.C. at 487, 356 S.E.2d at

292.    It is possible that a defendant in possession of any amount of

methamphetamine, no matter how small, intends to sell it—that is why the law in

this case required the State to prove sufficient evidence beyond mere possession to

prove PWISD. Further, because there was no testimony attempting to estimate the

number of “hits” 6.51 grams would constitute or how many “hits” would be considered

excessive for personal use, and that is the type of determination a jury cannot make

absent expert testimony. The estimated number of “hits” would have been improper

for the trial court to consider, and it constitutes an improper consideration of “facts”

not in evidence. Unlike in Nettles, there was no testimony as to the amount of

methamphetamine normally consumed in a single dose, nor the monetary value of

6.51 grams of methamphetamine. Deputy Maxwell simply testified that generally “a

seller will individually package the substance. Usually in anywhere from half a gram

to one gram, depending on what the buyer is wanting.”




                                         - 28 -
                                     STATE V. BLAGG

                                 McGee, C.J., dissenting



       State v. Brennan, cited by the majority opinion, is unpublished and I do not

believe this Court should adopt its reasoning that evidence not presented at trial may

be considered by this Court and used to affirm the trial court’s denial of a motion to

dismiss. See State v. Brennan, 247 N.C. App. 399, 786 S.E.2d 433, 2016 WL 1745101,

*4 (2016) (“Detective Phillips testified that in Haywood County, methamphetamine

is usually priced and sold in half grams at $50 and whole grams at $100. Thus, if a

half   gram   is   considered   an   average      user   amount,   the   8.75   grams   of

methamphetamine found in defendant’s possession potentially represented 17.5 user

amounts.”).   In addition, there was substantially more incriminating evidence

introduced at trial in Brennan than in this case. Id. at *3

       The majority opinion contends that Defendant possessed “paraphernalia”

indicative of an intent to sell the methamphetamine in addition to the empty plastic

bags, namely cotton balls and syringes. The majority opinion does not indicate how

the cotton balls or syringes are indicative of an intent to sell and not simply the

necessary tools of a user whose method of ingesting methamphetamine is injection,

and there was no record evidence to support any alternate inference. At trial, the

State argued State v. Carter, 254 N.C. App. 611, 802 S.E.2d 917, 2017 WL 3027550

(2017) (unpublished). Carter hurts the State’s case, as in Carter this Court held that

“paraphernalia” is relevant to prove PWISD methamphetamine when it is “consistent

with an intent to sell methamphetamine such as weighing scales, chemicals, or empty



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                                       McGee, C.J., dissenting



plastic baggies.” Id. at *3 ⚂ (citation omitted). This Court determined: “[T]he syringe

found on [the d]efendant, like the safety pin in Nettles, indicates [the d]efendant

possessed the methamphetamine for personal use” and not with an intent to sell. Id.

(citation omitted). In this case, the cotton balls are certainly no more indicative of an

intent to sell than the syringes. There was no expert or other testimony that cotton

balls and syringes are commonly associated with drug dealers, so we cannot consider

them as such in our de novo review. However, Deputy Maxwell testified that these

items are used to prepare and inject methamphetamine by drug users, therefore, this

Court, the trial court, and the jury could rely on their common sense to conclude these

items are necessary for drug users to inject methamphetamine, and would naturally

be found in the possession of drug users.

       Further, Chancey testified that she only obtained the “gross” weights of the

bags that were not tested,7 but that she would have obtained exact weights, and

tested each of the bags, if there had been enough of the crystalline substance(s) for

the State to bring a trafficking charge against Defendant; explaining that because

the total weight of the crystalline substance(s) wasn’t close to the amount required

for trafficking, “the charge would be the same regardless of how many items I tested[.]”

(Emphasis added). The majority opinion mentions that the State did not test the



       7“I weighed with the packaging, so I gave a gross weight, but I did not get a net weight of the
substance itself.” Further, not even the gross weight of the additional bags is included in Chancey’s
report.

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                                         STATE V. BLAGG

                                      McGee, C.J., dissenting



additional crystalline substance(s) because it was the State “crime lab procedure[]”

not to do so in cases like this one. This “procedure” is not justified because, although

the amount of crystalline substance recovered from Defendant’s vehicle was

substantially less than the 28 grams required for a trafficking charge, Defendant was

not only charged with the Class I felony of possession, he was also charged with the

Class H felony of PWISD, and one of the factors considered for proof of the essential

element of intent to sell is the amount of the controlled substance involved. If the

State wanted to use the total amount of the crystalline substance recovered against

Defendant it could, and should, have tested it.8

       PWISD might not carry sentences as severe as trafficking, but a conviction for

PWISD carries a substantially greater punishment than a conviction for possession—

even felony possession. In this case, based upon Defendant’s prior record level and

his habitual felon status, Defendant was sentenced to fifty to seventy-two months for

his possession of methamphetamine conviction.                    For the PWISD conviction,

Defendant was sentenced to 128 to 166 months imprisonment.                         The difference

between the maximum ranges of Defendant’s possession and PWISD convictions is

ninety-four months, or 7.82 years. Defendant’s conviction is based on speculation as

to whether someone possessing an amount of methamphetamine consistent with



       8  Because Defendant did not move to suppress the untested crystalline substance(s), or object
to its introduction at trial, it was in evidence. However, even if the bags in which the untested
substance(s) were contained had some minimal relevance, the untested substance(s) itself had none.

                                               - 31 -
                                   STATE V. BLAGG

                                 McGee, C.J., dissenting



personal use, who was also in possession of a few empty plastic bags, had the intent

to sell any of that methamphetamine. There was no way to make that determination

without simply guessing or relying on impermissible inferences from the trial and

from the State’s arguments, which are not evidence. It simply was not possible for

the State to meet its burden of proof based upon the record evidence, and I would hold

“that [D]efendant’s conviction be reversed for [PWISD] and remanded for

resentencing, on the lesser included … offense of possession[.]” Nettles, 170 N.C. App.

at 108, 612 S.E.2d at 177 (citation omitted).          Otherwise, Defendant could be

imprisoned an additional 7.82 years because a few empty plastic bags were found in

the vehicle along with an amount of methamphetamine consistent with personal use.




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