State v. Osborne
State v. Osborne
Opinion of the Court
**620The issue before the Court in this case is whether the Court of Appeals erroneously determined that the trial court erred by denying defendant Shelley Anne Osborne's motion to dismiss a charge of possession of heroin for insufficiency of the evidence. After careful consideration of the record in light of the applicable law, we reverse the decision of the Court of Appeals and remand this case to the Court of Appeals for consideration of defendant's remaining challenge to the trial court's judgment.
I. Factual Background
A. Substantive Facts
On 17 November 2014, officers of the Archdale Police Department responded to a call emanating from a local Days Inn hotel, in which they found defendant; a second woman; and defendant's two children, who appeared to be approximately four and five years old. According to Officer Jeffrey Harold Allred, the Archdale Days Inn is a place where "it's easier for people that want to do those types of things - prostitution, drugs - to - to get a room" given the hotel's cheap rates. Officer Jeremy Paul Flinchum testified that he had seen heroin, which he described as a grayish-tan or white rock, in the past and that he had responded to eight to ten heroin overdose calls during his law enforcement career.
After arriving at the Days Inn, Officer Flinchum found defendant, who was "unresponsive," "turning blue" around her face and lips, and having difficulty breathing, in a hotel room bathroom. Upon regaining consciousness, defendant "confirm[ed] to [Officer Flinchum] that she had ingested heroin." According to Officer Flinchum, investigating officers found "a syringe that had been thrown over the balcony into the parking lot"; syringes *330in the hotel room's refrigerator; two spoons, which are objects "used in part of the process of making the rock into a fluid substance to introduce to the body," one of which had a "residue"; and **621"some heroin," which took a "rock form," had "a white, grayish color," and reacted positively when field-tested for the presence of heroin. Similarly, Officer Allred testified, without objection, that the substance seized from defendant's hotel room appeared to be heroin and that paraphernalia like that discovered in defendant's hotel room was typically used to ingest heroin. Officer Phillip Patton Love also testified, without objection, that, following his entry into defendant's hotel room, he collected "the rock heroin" that was found at the scene and that syringes and burnt spoons are "normal stuff you see when we ... show up at overdoses that are dealing with heroin." Officer Flinchum conducted a second field test of the substance found in defendant's hotel room in the presence of the jury and testified, without objection, that the test was positive for the presence of heroin.
B. Procedural History
On 14 September 2015, the Randolph County grand jury returned bills of indictment charging defendant with possession of heroin and two counts of misdemeanor child abuse. The charges against defendant came on for trial before the trial court and a jury at the 20 February 2017 criminal session of the Superior Court, Randolph County.
At the close of the State's case, defendant unsuccessfully moved to dismiss the heroin possession charge for insufficiency of the evidence, arguing, in part, that the State was required, in accordance with this Court's decision in State v. Ward ,
On 21 February 2017, the jury returned verdicts finding defendant guilty as charged. Based upon the jury's verdicts, the trial court entered a judgment sentencing defendant to a term of six to seventeen months imprisonment based upon her conviction for possessing heroin and a second judgment sentencing defendant to a consecutive term of sixty days imprisonment based upon her consolidated convictions for misdemeanor child abuse. However, the trial court suspended defendant's sentences for a period of twenty-four months and placed defendant on supervised probation subject to the usual terms and conditions of probation and the special condition that defendant participate in drug treatment. Defendant noted an appeal to the Court of Appeals from the trial court's judgments.
**622In seeking relief from the trial court's judgments before the Court of Appeals, defendant contended, among other things, that the trial court had erred by denying her motion to dismiss the heroin possession charge on the grounds that the State had failed to present sufficient evidence to show that the substance that defendant allegedly possessed was heroin.
II. Substantive Legal Analysis
In seeking to persuade us to reverse the Court of Appeals' decision, the State argues that, had the Court of Appeals viewed the admitted evidence in the light most favorable to the State, as decisions such as State v. Mann ,
In addition, the State contends that, even if the field tests did not, standing alone, suffice to identify the substance that defendant allegedly possessed, the evidence, when viewed in its entirety, "was nevertheless **624sufficient to establish the substance's identity as heroin." In support of this assertion, the State notes that Ward addressed the issue of the admissibility of evidence concerning the *332identity of a controlled substance rather than the sufficiency of the evidence to support a conviction and is not, for that reason, relevant to the issue that is before the Court in this case. On the contrary, the State asserts that the sufficiency of the evidence to establish the identity of the substance that defendant allegedly possessed should be decided based upon our decision in Nabors , 365 N.C. at 313,
In seeking to persuade us to affirm the Court of Appeals' decision, defendant argues that, in order to convict a person of possessing a controlled substance, the State must prove the identity of the substance in question by adducing evidence of a scientifically valid chemical analysis performed by a person with expertise in interpreting the results of such an analysis. In support of this argument, defendant relies upon the fact that heroin is defined in N.C.G.S. § 90-89(2)(j) "in terms of its chemical composition." In defendant's view, the use of a definition like that set out in N.C.G.S. § 90-89(2)(j) implies, given the logic utilized in Ward ,
In addition, defendant directs our attention to State v. McKinney ,
In defendant's view, the field tests performed by Officer Flinchum do not constitute acceptable methods for proving the identity of a controlled substance. In advancing this argument, defendant deduces that the tests in question were "color test reagents for the preliminary identification of drugs" and directs our attention to a law review article and news reports stating that "[s]uch drug tests are subject to no regulation by a central agency" and "routinely produce false positives." In addition, defendant notes that the General Assembly has determined that evidence concerning the "actual alcohol concentration result" derived from the performance of a portable breath test cannot be utilized in determining whether reasonable grounds exist for believing that an implied consent offense *333had been committed and argues that the enactment of the relevant statutory provision indicates that the field tests utilized in this case should not be deemed sufficient to support the denial of a motion to dismiss for insufficiency of the evidence.
Finally, defendant argues that the other evidence upon which the State relied in order to identify the substance that defendant allegedly possessed as heroin, such as the testimony of Officers Flinchum, Allred, and Love that, in their opinion, the substance in question appeared to them to be heroin on the basis of a visual examination and defendant's admission that she "had ingested heroin," should not suffice to identify the substance that defendant was charged with possessing as heroin given that the testimony of the investigating officers did not rest upon scientifically reliable chemical tests admitted using expert testimony and that, unlike the situations at issue in Nabors and Williams , witnesses presented by defendant did not identify the substance that was **626located in the hotel room and that formed the basis of the drug possession charge as heroin. As a result, defendant urges us to affirm the Court of Appeals' decision to overturn her heroin possession conviction.
"Felonious possession of a controlled substance has two essential elements. The substance must be possessed and the substance must be knowingly possessed." State v. Galaviz-Torres ,
"In ruling on a motion to dismiss, the trial court need determine only whether there is substantial evidence of each essential element of the crime and that the defendant is the perpetrator." State v. Winkler ,
In determining whether the evidence presented for the jury's consideration was sufficient to identify the substance located in defendant's hotel room as heroin, the Court of Appeals stated that "the question is not whether the State's evidence was strong, but whether that evidence 'establish[ed] the identity of the controlled substance beyond a reasonable doubt,' " Osborne ,
**627(quoting Ward ,
The sole issue addressed in Ward was "whether the trial court abused its discretion by permitting [an analyst] to give expert opinion testimony identifying certain pills based solely on a visual inspection methodology."
We recognize that, even though Ward did not address the sufficiency of the challenged evidence to establish the identity of the substances **629at issue in that case, the opinion in Ward has been deemed to be relevant to such inquiry in a number of decisions, including the Court of Appeals' decision in this case. See, e.g., Bridges ,
We acknowledge that controlled substances come in many forms and that we are unable to foresee every possible scenario that may arise during a criminal prosecution. Nevertheless, the burden is on the State to establish the identity of any alleged controlled substance that is the basis of the prosecution. 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. This holding is limited to North Carolina Rule of Evidence 702.
Ward ,
Additional confusion about the relevance of the principles enunciated in Ward to sufficiency of the evidence issues may stem from our decision in Llamas-Hernandez , 363 N.C. at 8,
In view of the fact that the absence of an admissible chemical analysis of the substance that defendant allegedly possessed does not necessitate a determination that the record evidence failed to support the jury's decision to convict defendant of possessing heroin, the only thing that remains for us to do in order to decide this case is to determine whether, when analyzed in accordance with the applicable legal standard, the evidence adduced at defendant's trial sufficed to support her conviction. A careful review of the evidence admitted at defendant's trial establishes that defendant told an investigating officer that she had ingested heroin, that several investigating officers identified the substance seized in the defendant's hotel room as heroin, and that the substance that defendant was charged with possessing field-tested *337positive for heroin on two different occasions. Assuming, without in any way deciding, that some of this evidence might have been subject to exclusion if defendant had objected to its admission, no such objection was lodged. Thus, the record, when considered in its entirety and without regard to whether specific items of evidence found in the record were or were not admissible, contains ample evidence tending to show that the substance that defendant allegedly possessed was heroin.
III. Conclusion
Thus, for the reasons set forth above, we hold that the Court of Appeals erred by determining that the trial court had erroneously denied defendant's motion to dismiss the possession of heroin charge that had been lodged against her for insufficiency of the evidence. As a result, the Court of Appeals' decision in this case is reversed and this case is remanded to the Court of Appeals for consideration of defendant's remaining challenge to the trial court's judgment.
REVERSED AND REMANDED.
In addition, defendant argued that the trial court had plainly erred by admitting certain evidence identifying the substance located in the hotel room as heroin. As a result of its decision to vacate defendant's conviction on sufficiency of the evidence grounds, the Court of Appeals did not reach defendant's evidentiary claim.
The Court of Appeals noted that "this issue is unsettled and may merit further review in our Supreme Court." Osborne ,
The statement from the Court of Appeals' decision quoted in the text can be read as suggesting, perhaps inadvertently, that an appellate court reviewing a sufficiency of the evidence claim is required to determine both that the record contains evidence tending to show the existence of each element of the charged offense and that the jury could reasonably find the existence of each element of the offense charged beyond a reasonable doubt based upon the evidence in question. Our sufficiency of the evidence jurisprudence does not call for such a two-step inquiry, which tends to suggest the appropriateness of some sort of appellate credibility determination rather than leaving all such credibility determinations to the jury. See, e.g., State v. Hyatt ,
To be absolutely clear, the appropriate remedy for prejudicial error resulting from the admission of evidence that should not have been admitted has traditionally been for the defendant to receive a new trial rather than for the charges that had been lodged against that defendant to be dismissed for insufficiency of the evidence. See, e.g., State v. Craven ,
The Court of Appeals and defendant have both emphasized that in this case, unlike Nabors , Williams , and Ortiz-Zape , the evidence upon which the State relied in arguing that the record contained adequate support for the jury's finding of defendant's guilt did not consist of either an admission by defendant or testimony elicited by defendant. However, that fact has no bearing upon the proper resolution of the sufficiency of the evidence issue in this case. Although an admission by defendant or one of her witnesses might be given greater weight than other evidence during the course of a jury's deliberations, the source from which a particular item of evidence originates is irrelevant to a proper sufficiency of the evidence determination, which focuses upon whether there is any evidence of any kind tending to support a finding of a defendant's guilt rather than upon the form that the evidence takes. See, e.g. , State v. Lowery ,
Concurring Opinion
I concur with the analysis in the majority opinion, but write separately to note a threshold matter of immunity and jurisdiction which I would have considered sua sponte. On 9 April 2013 Governor Pat McCrory signed into law Session Law 2013-23, titled, in part, "An Act to Provide Limited Immunity From Prosecution for (1) Certain Drug-Related Offenses Committed by an Individual Who Seeks Medical Assistance for a Person Experiencing a Drug-Related Overdose and (2) Certain Drug-Related Offenses Committed by an Individual Experiencing a Drug-Related Overdose and In Need of Medical Assistance."
In Section 1, the law amended Article 5 of Chapter 90 of the General Statutes to add a new section titled "Drug-related overdose treatment; limited immunity." S.L. 2013-23, § 1, 2013 N.C. Sess. Laws at 72. The statute provided that:
A person who experiences a drug-related overdose and is in need of medical assistance shall not be prosecuted for ... (iii) a felony violation of G.S. 90-95(a)(3) possession of less than one gram of heroin ... if the evidence for prosecution under those sections was obtained as a result of the drug-related overdose and need for medical assistance.
Id.
This law was in effect on 17 November 2014 when police received a 911 call that there was an overdose at a Days Inn in *338Archdale. Under the terms of that statute,
North Carolina's Good Samaritan/Naloxone Access Law was passed at a time when state public health officials had reported a 300 percent increase in the number of overdose deaths in North Carolina in just over a decade, from 297 in 1999 to 1,140 in 2011. See Injury and **634Violence Prevention Branch, North Carolina Division of Public Health, Prescription & Drug Overdoses , (2013), http://injuryfreenc.ncdhhs.gov/About/PoisoningOverdoseFactSheet2013.pdf. The General Assembly made the decision that encouraging individuals suffering from an overdose, and those Good Samaritans who might be with them, to seek medical help to save lives was more important than prosecuting those individuals for possession of less than one gram of heroin.
Ultimately, the question I would start with in deciding this case is whether the Good Samaritan/Naloxone Access Law's immunity is waived if not affirmatively asserted, or whether, like subject matter jurisdiction, it can be raised at any time. Cf. State v. Sturdivant ,
Jurisdiction is "[t]he legal power and authority of a court to make a decision that binds the parties to any matter properly brought before it." The court must have personal jurisdiction and, relevant here, subject matter jurisdiction "or '[j]urisdiction over the nature of the case and the type of relief sought,' in order to decide a case." "The legislature, within constitutional limitations, can fix and circumscribe the jurisdiction of the courts of this State." "Where jurisdiction is statutory and the Legislature requires the Court to exercise its jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects the Court to certain limitations, an act of the Court beyond these limits is in excess of its jurisdiction."
370 N.C. at 88,
the defendant is contesting the very power of this State to try him. We are of the view that a question as basic as jurisdiction is not an "independent, distinct, substantive matter of exemption, immunity or defense" and ought not to be regarded as an affirmative defense on which the defendant must bear the burden of proof. Rather, jurisdiction is a matter which, when contested , should be proven by the prosecution as a prerequisite to the authority of the court to enter judgment.
State v. Batdorf ,
**636Thus, it is appropriate for the Court of Appeals on remand to address whether the Good Samaritan/Naloxone Law is a limit on the court's jurisdiction to prosecute defendant in this case, by directing that a person who experiences a drug-related overdose and is in need of medical assistance "shall not be prosecuted" for possession of less than one gram of cocaine, or, more generally, if not purely jurisdictional, whether it is an issue that can be waived.
Certainly the first place to begin is the language of the statute itself. If unambiguous, "there is no room for judicial construction." Lee v. Gore ,
It is also instructive that the statute does not say "it shall be a defense to the crime of possession of less than one gram of heroin that ...." The legislature is aware of the various defenses available in criminal law, and, indeed, has passed statutes requiring a defendant to give notice before trial if they intend to assert certain defenses. See N.C.G.S. § 15A-905(c) ; see also *340State v. Rankin ,
The goal of statutory construction is to ensure that the purpose of the legislature is accomplished. State ex rel. Hunt v. N.C. Reinsurance Facil. ,
As a Pennsylvania intermediate appellate court addressing that state's version of an overdose immunity statute noted:
Moreover, the Legislature intended for prosecutors and police to refrain from filing charges when sorting through the aftermath of the unfortunately all-too-common overdose. The statute discourages the authorities from commencing the criminal justice process, i.e. by placing a limitation upon the charging power, to provide more incentive for reporters to call. ... It would significantly undercut the statute's goal to conclude, as the Commonwealth urges, that the Act merely provides a defense, thereby requiring an overdose victim or a reporter to litigate the issue of immunity. We find that the statute clearly contemplates that a large number of these cases will never reach the courtroom halls; hence, the prohibition against charging a person.
Commonwealth v. Markun ,
Beyond the question of whether the limited immunity conferred by this statute is intended to be immunity from prosecution or a defense to a prosecution, there further remains the question of whether the law actually applies to Ms. Osborne. There is no dispute in the record that law enforcement personnel were called to provide aid to an overdose victim. Arriving first, Officer Flinchem found defendant unconscious, unresponsive, and turning blue, apparently from a heroin overdose. After Officer Flinchem insured that it was safe for EMS to enter, EMS entered the room and was able to revive defendant, who confirmed that she had ingested heroin. Officer Flinchem and two other officers who also responded to the *341call found drug paraphernalia and a "little piece of heroin."
The evidence for prosecution was obtained as a result of the need for medical assistance. Defendant was indicted, tried and convicted of a felony violation of N.C.G.S. § 90-95(a)(3), one of the statutes referenced in the Good Samaritan/Naloxone Access Law. What arguably is unclear is whether the amount of heroin at issue was less than one gram, as the only evidence in the record concerning the amount is that it was a "little piece of heroin." Given the language and intent behind N.C.G.S. § 90-96.2(c), the State in these circumstances bears the burden of establishing that the amount was one gram or more. Although the weight of the substance is not an element of the offense of possession, the immunity statute means that the weight of the substance needs to be known where all the other elements of immunity are present. That is the only way to effectuate the intent of the legislature that people who call police or medical personnel for treatment because they are experiencing a drug-related overdose shall not be prosecuted for possessing less than one gram of the drug.
N.C.G.S. § 90-96.2 was further amended in 2015; the new version applies to offenses committed on or after 1 August 2015. Act of June 10, 2015, S.L. 2015-94, §§ 1, 4,
The original statute also provided that "[n]othing in this section shall be construed to bar the admissibility of any evidence obtained in connection with the investigation and prosecution of other crimes committed by a person who otherwise qualified for limited immunity under this section." S.L. 2013-23, § 1 (d), 2013 N.C. Sess. Laws at 72. In this case, defendant was also convicted of two counts of misdemeanor child abuse based on the fact that her two children under the age of sixteen were in the hotel room at the time she overdosed. The statute does not provide immunity from prosecution for those offenses and they are not at issue here.
Reference
- Full Case Name
- STATE of North Carolina v. Shelley Anne OSBORNE
- Cited By
- 20 cases
- Status
- Published
- Syllabus
- Whether the State presented sufficient evidence that a rock-like substance found in defendant's hotel room was heroin even though the State did not conduct a scientifically valid chemical analysis of the substance.