                                    NO. COA13-1088

                      NORTH CAROLINA COURT OF APPEALS

                              Filed: 15 April 2014


STATE OF NORTH CAROLINA


    v.                                          Forsyth County
                                                Nos. 11 CRS 51776, 6612, 13553
CHRISTOPHER LEON BLAKNEY,
     Defendant.


    Appeal by defendant from judgment entered 13 February 2013

by Judge William Z. Wood, Jr., in Forsyth County Superior Court.

Heard in the Court of Appeals 19 February 2014.


    Attorney General Roy Cooper, by Special Deputy                      Attorney
    General James M. Stanley, Jr., for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate
    Defender Kathleen M. Joyce, for defendant-appellant.


    BRYANT, Judge.


    Where       the   State    presents     sufficient       evidence   of    each

element of an offense, a motion to dismiss is properly denied.

Where defendant can show no prejudice from irrelevant evidence

admitted    during     an     habitual     felon     proceeding,     any     error

therefrom is harmless.

    On     23   February    2011,    Officer     Neff   of   the   Winston-Salem

Police   Department     observed      a   car    speeding    and   crossing   the
                                        -2-
double-yellow center line while driving on Silas Creek Parkway

around 10:00 p.m.        Officer Neff initiated a traffic stop of the

car    and   noticed    that   the   driver,   defendant       Christopher    Leon

Blakney,     smelled    of   alcohol    and   had   glassy,    bloodshot     eyes.

Officer Neff arrested defendant under suspicion of driving while

impaired and called for assistance; Officer Allen responded.

       While    searching      defendant’s     car,     Officer    Allen     found

marijuana under the center armrest.             A large amount of cash was

found on the car’s front floorboard along with a glass Mason jar

containing marijuana residue.               A digital scale and batteries

were also found underneath the front seats.                    A white shopping

bag containing a box of sandwich baggies and a glass Mason jar

of marijuana was found in the trunk, along with a second bag

containing additional marijuana packaging supplies.                  Four “dime

bags” of marijuana were also found in the trunk.1                    A total of

84.8    grams   (2.99     ounces)      of   marijuana    was    recovered    from

defendant’s car.




1
  When asked to clarify what he meant when he said “dime bag,”
Officer Allen testified that a “dime bag” is “a small plastic
bag often used in the packaging for sale of illegal narcotics.
So those who sell these -- sell narcotics break their product
down to get it -- they get it in large shipments and break it
down into the smaller sellable items, packages for easy
transactions, very small scale and discrete transactions.”
                                              -3-
     On     16    May    2011,     a     Forsyth         County   Grand    Jury     indicted

defendant        for    possession        with      intent        to    sell   or     deliver

marijuana,       possession        of     drug      paraphernalia,         driving      while

impaired, and driving while license revoked.                           Defendant was also

indicted as an habitual felon.

     On     13    February       2013,    a   jury        found    defendant      guilty    of

possession with intent to sell or deliver marijuana, possession

of   drug    paraphernalia,             and   driving          while    license      revoked.

Defendant was found not guilty of driving while impaired.                                   The

jury also found defendant guilty of having attained the status

of an habitual felon.             The trial court sentenced defendant to 88

to 115 months in prison.               Defendant appeals.

                                ____________________________

     On appeal, defendant argues that the trial court erred in:

(I) denying defendant’s motion to dismiss; and (II) admitting

evidence of an additional felony conviction during defendant’s

habitual felon proceeding.

                                                    I.

     Defendant          first    argues       that       the    trial    court      erred   in

denying his motion to dismiss at the close of all the evidence.

We disagree.

                  We review the trial court's denial of a
             motion to dismiss de novo.      A motion to
                                      -4-
              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.

State v. Burton, ___ N.C. App. ___, ___, 735 S.E.2d 400, 404

(2012)   (citations       and   quotations    omitted).       “The      State   is

entitled to every reasonable inference to be drawn from the

evidence.        Contradictions     and    discrepancies     do   not    warrant

dismissal of the case; rather, they are for the jury to resolve.

Defendant's evidence, unless favorable to the State, is not to

be taken into consideration.”             State v. Franklin, 327 N.C. 162,

172, 393 S.E.2d 781, 787 (1990) (citations omitted).

    Defendant argues that the trial court erred in denying his

motion   to     dismiss   because   the     State   failed   to    prove    that

defendant intended to sell or deliver marijuana.                  Specifically,

defendant contends the State failed to prove defendant’s intent
                                           -5-
to sell or deliver marijuana because the amount of marijuana

found in defendant’s car was too small to be the “substantial

amount” required for a possession with intent to sell or deliver

marijuana conviction.

       Pursuant to North Carolina General Statutes, section 90-95,

the offense of possession with intent to sell or deliver has

three elements: (1) possession; (2) of a controlled substance;

with    (3)    the   intent       to   sell      or    deliver    that      controlled

substance.      N.C. Gen. Stat. § 90-95(a)(1) (2013).                  The State may

demonstrate intent through direct or circumstantial                          evidence.

State v. Jackson, 145 N.C. App. 86, 89—90, 550 S.E.2d 225, 229

(2001).       Although     the    "quantity       of   the   controlled      substance

alone   may    suffice     to    support    the    inference     of    an    intent   to

transfer, sell or deliver," it must be a substantial amount.

State v. Morgan, 329 N.C. 654, 659—60, 406 S.E.2d 833, 835—36

(1991).       "[T]he intent to sell or distribute 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).
                                              -6-
       The State concedes that lab testing was not completed on

the marijuana collected from defendant’s car.                            Defendant argues

that because no testing was done, the total amount of marijuana

collected     (84.8       grams)    is   not        accurate      because     this    weight

included marijuana seeds, stems, and other material that should

have been excluded before weighing.                         Defendant further argues

that   even    if    the    weight       of    the    marijuana         (84.8     grams)    is

accurate, such a small amount is consistent with personal use,

rather than for sale or delivery.                         Defendant cites State v.

Wiggins, 33 N.C. App. 291, 235 S.E.2d 265 (1977), and State v.

Wilkins, 208 N.C. App. 729, 703 S.E.2d 807 (2010), in support of

his argument.

       In Wiggins, the defendant was convicted of possession with

intent to sell or deliver marijuana after a total of 215.5 grams

of marijuana was found growing in and around his home.                                    This

Court found that “this quantity alone, without some additional

evidence,     is    not    sufficient         to    raise    an       inference    that    the

marijuana was for the purpose of distribution.”                                 Wiggins, 33

N.C. App. at 294—95, 235 S.E.2d at 268 (citations omitted).

       In   Wilkins,       the    defendant         was   stopped       and   arrested      on

several     outstanding          warrants.           During       a     pat-down     of    the

defendant, officers found three small bags of marijuana weighing
                                   -7-
a total of 1.89 grams and $1264.00 cash in small denominations.

The defendant was convicted of possession with intent to sell or

deliver marijuana and manufacturing marijuana.        On appeal, this

Court reversed the defendant’s conviction for possession with

intent to sell or deliver marijuana, noting that “[t]he evidence

in this case, viewed in the light most favorable to the State,

indicates that defendant was a drug user, not a drug seller.”

Wilkins, 208 N.C. App. at 733, 703 S.E.2d at 811.

    We find Wiggins and Wilkins to be inapposite to the instant

case.    The   State   presented    evidence   that   defendant’s   car

contained a total of 84.8 grams of marijuana found in the body

and trunk of the car, and the marijuana was found in multiple

containers including two “previously vacuum sealed bags,” two

sandwich bags, four “dime bags,” and five other types of bags.

Marijuana was also found in two glass Mason jars.            A box of

sandwich bags was found in the trunk, and digital scales were

found underneath the front seats of the car.            This evidence

showed not only a significant quantity of marijuana, but the

manner in which the marijuana was packaged (such as four “dime

bags”) raised more than an inference that defendant intended to

sell or deliver the marijuana.       Further, the presence of items

commonly used in packaging and weighing drugs for sale — a box
                                              -8-
of    sandwich       bags       and    digital      scales      —    along     with     a   large

quantity      of   cash     in        small   denominations           provided       additional

evidence that defendant intended to sell or deliver marijuana,

as opposed to merely possessing it for his own personal use as

was     determined         to     be    the      case      in   Wiggins        and     Wilkins.

Therefore, taking the evidence in the light most favorable to

the State, sufficient evidence of possession with intent to sell

or deliver marijuana was presented to survive defendant’s motion

to dismiss.        See State v. Baxter, 285 N.C. 735, 738, 208 S.E.2d

696, 698 (1974) (“The jury could reasonably infer an intent to

distribute from the amount of the substance found, the manner in

which    it    was    packaged          and   the    presence         of     other    packaging

materials.”), overruled in part on other grounds by State v.

Childers, 41 N.C. App. 729, 255 S.E.2d 654 (1979).                                   Defendant’s

argument is overruled.

                                                    II.

       Defendant       next       argues      that        the   trial        court    erred    in

admitting      evidence          of     an    additional            felony    conviction       at

defendant’s habitual felon proceeding.                          Specifically, defendant

contends      that    by    not       redacting      a    second      consolidated          felony

offense contained within a judgment offered into evidence by the
                                  -9-
State, the trial court committed error pursuant to Rules 401,

403, 404(b), and 609.    We disagree.

    On appeal, in reviewing a trial court’s rulings under Rule

401 and 403, this Court has held that:

           Although   the  trial  court's   rulings  on
           relevancy technically are not discretionary
           and therefore are not reviewed under the
           abuse of discretion standard applicable to
           Rule 403, such rulings are given great
           deference on appeal. Because the trial court
           is better situated to evaluate whether a
           particular piece of evidence tends to make
           the existence of a fact of consequence more
           or less probable, the appropriate standard
           of review for a trial court's ruling on
           relevancy pursuant to Rule 401 is not as
           deferential as the 'abuse of discretion'
           standard which applies to rulings made
           pursuant to Rule 403.

State v. Tadeja, 191 N.C. App. 439, 444, 664 S.E.2d 402, 407

(2008) (citation omitted).      Evidence is relevant if it has "any

tendency   to   make   the   existence    of   any   fact   that   is   of

consequence to the determination of the action more probable or

less probable than it would be without the evidence."          N.C. Gen.

Stat. § 8C-1, Rule 401 (2013).          "[E]vidence is relevant if it

has any logical tendency, however slight, to prove a fact in

issue in the case." State v. Hannah, 312 N.C. 286, 294, 322

S.E.2d 148, 154 (1984) (citation omitted).           "Although relevant,

evidence may be excluded if its probative value is substantially
                                        -10-
outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative

evidence."     N.C. Gen. Stat. § 8C-1, Rule 403 (2013).

       North   Carolina      General    Statutes,          section      14-7.1,   states

that a person may be charged as an habitual felon if he “has

been convicted of or pled guilty to three felony offenses.”

N.C. Gen. Stat. § 14-7.1 (2013).                 For an habitual felon charge,

the prior felony convictions of a defendant may be proven by

“stipulation of the parties or by the original or a certified

copy    of   the   court     record    of     the       prior    [felony]      conviction

[pursuant to] N.C. Gen. Stat. § 14-7.4.”                         State v. Gant, 153

N.C.    App.   136,   143,     568     S.E.2d       909,       913   (2002).       "[T]he

preferred method for proving a prior conviction includes the

introduction of the judgment itself into evidence."                             State v.

Maynard, 311 N.C. 1, 26, 316 S.E.2d 197, 211 (1984) (citation

omitted).

       The State, in prosecuting the habitual felon charge against

defendant, introduced into evidence certified copies of three

prior    judgments:        judgment     for      possession          with   intent    to

sell/deliver       cocaine    entered       on      8    May    1997;    judgment    for

possession with intent to manufacture, sell and deliver cocaine
                                          -11-
entered on 8           October 1998; and judgment for possession with

intent to sell or deliver marijuana entered on 8 May 2003.                          Each

judgment included a copy of the corresponding plea transcript.

The judgment which defendant challenges, entered 8 May 1997,

involved two felony convictions, each for possession with intent

to sell or deliver cocaine, which had been consolidated into one

judgment.        Defendant argues that the trial court’s refusal to

redact     one    of   the    two     felony     convictions       attached    to    the

judgment was highly prejudicial to him.                   We disagree.      While the

additional       felony      conviction    was     irrelevant       in     determining

whether     defendant     was    an    habitual     felon,     defendant      has   not

demonstrated how this evidence prejudiced him.

             Defendant bears the burden of proving the
             testimony was erroneously admitted and he
             was prejudiced by the erroneous admission.
             The   admission   of    evidence  which   is
             technically inadmissible will be treated as
             harmless unless prejudice is shown such that
             a different result likely would have ensued
             had the evidence been excluded.

State v. Moses, 350 N.C. 741, 762, 517 S.E.2d 853, 867 (1999)

(citations and quotation omitted).

      In admitting the judgments into evidence, the trial court

denied     defendant’s       redaction     request    as    to     the   consolidated

judgment, noting that “[defendant] pled to whatever he pled to.

It   was   just    consolidated.”          The    trial    court    then    gave    jury
                                      -12-
instructions as to the habitual felon charge which directed and

limited   the    jury’s     consideration    of   the        evidence   to       three

specific felony convictions only.            As such, the record reflects

nothing     to   indicate     that   defendant    was    prejudiced         by    the

inclusion of the additional conviction.            Moreover, defendant has

not challenged the validity of the prior convictions, the plea

transcripts,      or    the     resulting     judgments.            “Given         the

overwhelming     and   uncontradicted    evidence       of    the   three    felony

convictions, there is essentially no likelihood that a different

result . . . would have ensued if the trial court had redacted

[the additional conviction].”         State v. Ross, 207 N.C. App. 379,

400, 700 S.E.2d 412, 426 (2010) (citation, quotation and bracket

omitted).    Accordingly, defendant’s argument is overruled.

    No error.

    Judges STEPHENS and DILLON concur.
