An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-612
Filed 4 June 2025
Rowan County, Nos. 21CRS051631, 21CRS051632
STATE OF NORTH CAROLINA
v.
LEIGH ANN HATLEY
Appeal by defendant from judgment entered 6 November 2023 by Judge Joseph
N. Crosswhite in Rowan County Superior Court. Heard in the Court of Appeals 19
March 2025.
Attorney General Jeff Jackson, by Assistant Attorney General Tanisha Folks, for the State.
Law Office of Martin E. Moore, PLLC, by Martin Moore, for the defendant- appellant.
TYSON, Judge.
Leigh Anne Hatley (“Defendant”) appeals from judgment entered upon a jury’s
verdict finding her guilty of Trafficking Opium/Heroin, Possession with Intent to
Sell/Deliver a Schedule 1 controlled substance, and Maintaining a Vehicle/Dwelling
Place for Controlled Substances. We discern no error. STATE V. HATLEY
Opinion of the Court
I. Background
Rowan County Probation Officers Tyler Mabe and Justin Kitt arrived at
Defendant’s home on 28 April 2021 to retrieve an ankle monitor left at her residence.
Defendant invited the officers into her home. Upon entering Defendant’s bedroom,
Officer Mabe observed what he suspected to be controlled substances present on her
bed and nightstand. When questioned, Defendant admitted the substances were
heroin and methamphetamine and both substances belonged to her. Officer Mabe
took photos of the scene and the substances and documented the probation violation.
The probation officers contacted the Rowan County Sheriff’s Department
(“RCSD”) to conduct a more thorough search of the scene. Detective Christopher
Youngo and Master Deputy Miller were dispatched and obtained Defendant’s consent
to conduct a search of her home. The officers photographed and secured other
suspected evidence by properly seizing and logging the evidence to send to the State
Crime Laboratory for testing.
Once the evidence test results were received from the State Crime Laboratory
and the lab reports were compared with the exhibit log, the State discovered some of
the exhibits were not tested, analyzed, nor sent to the State Crime Laboratory.
Because of this omission, the State relied upon Detective Youngo’s testimony
concerning his visual inspection and testimony concerning the placement of the
substances at the scene. He also testified to his past experiences with controlled
substances, but no definitive lab results were presented to conclude all the substances
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were, in fact, controlled substances.
The trial court admitted the lab-tested items, without objection, which had
tested positive for methamphetamine, fentanyl, and cocaine hydrochloride. Lab Item
1(b), a gray plastic bag containing a small amount of pink crystalline material
corresponding to the State’s Exhibit # 17, although untested, was admitted into
evidence over Defendant's objection because it was packaged with tested Item 1(a).
Lab Item 6(b), a plastic Ziploc bag containing a residual amount of tan powder,
corresponding to the State’s Exhibit # 21, although untested, was admitted into
evidence over Defendant's objection, again because it had been packaged with tested
Item 6(a). Lab Item 9, a plastic Ziploc bag containing one capsule of gray powder and
one capsule of tan powder corresponding to the State’s Exhibit # 22, although
untested, was mistakenly published as evidence, contrary to the court’s instruction.
Defendant filed a motion in limine to challenge the untested items under N.C.
Gen. Stat. §§ 15A-951; 52 (2023), and N.C. R. Evid. 401 and 403. N.C. Gen. Stat.§§
8C-1, Rules 401;403 (2023). The trial court conducted a hearing on Defendant’s
motion in limine, wherein counsel had objected to the admissibility and reference to
the untested parts of Exhibit #s 17, 21, and 22 on 6 November 2023.
Defendant’s counsel conceded the admission of these exhibits would not reduce
the amounts of controlled substances to affect the trafficking quantity thresholds
Defendant was charged with possessing. The trial court ultimately decided to allow
the State to offer the officers’ “opinion and belief” to explain why analysis was not
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conducted on these specific items and also to allow the lab analyst’s expert testimony
opinion on the substances based upon visual analysis. Both witnesses were subject
to cross examination before the jury.
The State introduced testimony of the law enforcement officer to admit the
tested and untested lab items into evidence. Defendant’s counsel again challenged
the admission of the untested items as evidence, and ultimately the court modified
its ruling to allow the State’s items 1-10; but reserved judgment on admitting Lab
Items 11 and beyond.
The State called a State Crime Laboratory analyst to qualify as an expert
witness and to confirm she did not perform any testing or come to any conclusions
about several of the items, specifically the items offered as Exhibits # 17, # 21, and #
22. The Court did permit the lab analyst to testify to the relationship between the
tested and untested parts of Exhibits #17 and #21 and to her visual inspection of the
exhibits. The lab analyst confirmed she did not perform any lab testing or form any
conclusions based on visual analysis alone of Exhibit # 22. Counsel for Defendant
renewed objections to the evidence under Rule 403.
The jury convicted Defendant of Trafficking Opium and Heroin, Possession
with Intent to Sell/ Deliver a Schedule 1 Controlled Substance, and of Maintaining a
Vehicle/Dwelling Place for Controlled Substances. Defendant was sentenced as a
prior record level three, with eight prior record level points, to an active term of 70-
93 months’ imprisonment and ordered to pay a $50,000 fine. Defendant appeals.
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II. Jurisdiction
Jurisdiction lies in this court pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-
1444(a) (2023).
III. Issues
Defendant argues the trial court erred in admitting Exhibits # 17 and 21 over
objections and committed plain error by admitting the testimony of the State Crime
Laboratory analyst.
IV. Prejudice of Admitting Untested Substances
Defendant argues the State’s introduction of untested evidence, that were not
the subject of the indictments, violated Rule of Evidence 403. “Although relevant,
evidence may be excluded if its probative value is substantially 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 (2023).
A. Standard of Review
“The admissibility of evidence is governed by a threshold inquiry into its
relevance. In order to be relevant, the evidence must have a logical tendency to prove
any fact that is of consequence in the case being litigated.” State v. Griffin, 136 N.C.
App. 531, 550, 525 S.E.2d 793, 806 (citation and quotation marks omitted), appeal
dismissed and disc. review denied, 351 N.C. 644, 543 S.E.2d 877 (2000); see N.C. Gen.
Stat.§ 8C-1, Rule 401 (2023). “We review a trial court’s decision to exclude evidence
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under Rule 403 for abuse of discretion.” State v. Whaley, 362 N.C. 156, 160, 655
S.E.2d 388, 390 (2008).
B. Analysis
1. Exhibits # 17, 21, and 22
Defendant contends Exhibits # 17, 21, and 22 were proffered and admitted for
the purpose of suggesting the untested substances may be controlled substances,
when no analysis was performed on parts of these exhibits to support that conclusion.
Prior to the lab analyst’s testimony, Officer Mabe and Detective Youngo had testified
to the existence of the substances, what they understood the substances to be after
discussing them with Defendant, and to taking photographs and seizing and logging
the substances taken from Defendant’s residence.
The State’s lab analyst expert witness admitted for at least one piece of
evidence in Exhibit # 22, she did not form an opinion on the content of the substance,
yet the Court permitted its introduction as evidence. Defendant asserts when a
witness expressly states he did not test nor form an opinion on an exhibit subject to
chemical analysis, it is clearly prejudicial to introduce the unknown substance.
Robinson v. Trantham, 195 N.C. App. 687, 673 S.E.2d 771 (2009). She argues by
introducing this kind of evidence, especially thought testimony of an expert witness,
she was unfairly prejudiced and deserves a new trial. We disagree.
The facts in Robinson are distinguishable as they concern a negligence claim
brought against the defendant, wherein the plaintiff attempted to admit untested
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substances into evidence when the defendant’s blood test had already shown the
defendant was not under the influence at the time the negligent act, making any
inference drugs were present at the scene unfairly prejudicial. Id. at 693-94, 673
S.E.2d at 776. In contrast, the State argues Defendant’s charges hinge upon illegal
drug possession already proven through the lab-tested items, making the admission
of other minimal amounts of untested substances not prejudicial to sway the jury’s
verdict, and asserts the material is relevant in proving the facts of consequence in
this case.
2. N.C. Gen. Stat. §§ 8C-1, Rules 401; 403
“‘Relevant evidence’ means evidence having 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 (2023). “Although relevant, evidence may be excluded if its probative
value is substantially 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
(2023).
The standard to determine whether untested evidence may be used to support
a finding of drug possession and distribution is a relatively low threshold. In order
to secure a conviction for controlled substance violations, the State need only prove
there was a measurable amount of the controlled substance in question. Even a small
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amount of contraband may combine with circumstantial evidence to support the
finding of intent to distribute required for a conviction of possession with intent to
distribute. State v. James, 240 N.C. App. 456, 770 S.E.2d 736 (2015).
In James, only two recovered pills were chemically analyzed by a forensic
chemist. Id. at 457, 770 S.E.2d at 737. The two pills were physically consistent with
the other pills; were chosen at random from an exhibit; and, they had tested positive
for opium. Id. The chemist was allowed to testify she had visually inspected the
remaining, untested pills and concluded after reviewing the color, shape, and imprint
code, they were consistent with those pills testing positive for opium, with the total
weight of all pills being 31.79 grams. Id. at 459, 770 S.E.2d 738–39. This Court
concluded the State had presented sufficient evidence for the jury to conclude
defendant had possessed and transported 28 grams or more of a Schedule II
controlled substance. Id. at 459, 770 S.E.2d at 739.
In the case of State v. Anderson, the State offered sufficient evidence to permit
the jury to find fourteen packets, obtained from the defendant, contained heroin and
the jury found the defendant was guilty of trafficking by selling and delivering in
excess of four grams of a mixture containing heroin. State v. Anderson, 76 N.C. App.
434, 437, 333 S.E.2d 762, 764 (1985). The evidence tended to show the contents of
three of the packets were analyzed by an SBI forensic chemist and were found to
contain heroin. Id. The chemist testified to visual analysis all of the packets and
testified in his opinion the packets all contained similar material, and the total weight
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of the 16 packets exceeded six grams. Id.
The circumstances of the evidence offered in Defendant’s case are analogous to
facts presented in James and Anderson. Id. While the evidence in Exhibits # 17,
# 21, and # 22 were not subjected to chemical analysis at the state crime lab, their
source, chain of custody, and relation to the tested items, together with testimony
from law enforcement officers and the expert witness of their appearance as compared
to their tested counterparts, are sufficient to conclude their admission.
Even if erroneous, the admission was not prejudicial to award a new trial.
Defendant has failed to prove there is a reasonable possibility of a different verdict if
this testimony and these exhibits had not been admitted into evidence. See State v.
Jacobs, 363 N.C. 815, 825, 689 S.E.2d 859, 865-66 (2010). The admission of two items
containing insignificant amounts of untested material, along with a significant
quantity of tested controlled substances found among the analyzed lab items to meet
the statutory threshold is not shown to have unfairly prejudiced Defendant. See State
v. De La Sancha Cobos, 211 N.C. App. 536, 543, 711 S.E.2d 464, 469 (2011) (defendant
failed to establish prejudice in the admission of an untested small bag of white powder
found on his person where “[a]nother bag of cocaine that was found in [his] vehicle,
weighing eighty-three grams, was properly admitted into evidence”).
Defendant has failed to show prejudicial error in the admission of this
evidence. Defendant’s argument is overruled.
V. Expert Witness Testimony of Untested Substances
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Defendant argues the State Crime Laboratory analyst expert witnesses’
opinion testimony was not admissible under Rule 702 because the testimony was not
based on sufficient facts or data, and the State failed to establish she had applied
principles and methods reliably to the facts of the case.
“[T]he trial judge is afforded wide latitude of discretion when making a
determination about the admissibility of expert testimony.” State v. Bullard, 312
N.C. 129, 140, 322 S.E.2d 370, 376 (1984). “The trial court’s decision regarding what
expert testimony to admit will be reversed only for an abuse of discretion.” State v.
Alderson, 173 N.C. App. 344, 350, 618 S.E.2d 844, 848 (2005).
“In criminal cases, an issue . . . not preserved by objection noted at trial and
that is not deemed preserved by rule or law without any such action nevertheless
may be made the basis of an issue presented on appeal when the judicial action
questioned is specifically and distinctly contended to amount to plain error.” N.C.R.
App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007),
cert. denied, 555 U.S. 835, 172 L. Ed. 2d 58 (2008).
The Supreme Court of North Carolina “has elected to review unpreserved
issues for plain error when they involve either (1) errors in the judge’s instructions to
the jury, or (2) rulings on the admissibility of evidence.” State v. Gregory, 342 N.C.
580, 584, 467 S.E.2d 28, 31 (1996).
Plain error arises when the error is “‘so basic, so prejudicial, so lacking in its
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elements that justice cannot have been done[.]’” State v. Odom, 307 N.C. 655, 660,
300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002
(4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d. 513 (1982)). “Under the
plain error rule, defendant must convince this Court not only that there was error,
but that absent the error, the jury probably would have reached a different result.”
State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
Defendant argues the trial court committed plain error and violated Rule of
Evidence 702 by admitting the State Crime Lab analyst’s expert witness opinion
testimony not based on sufficient facts or data, and the State failed to establish she
had applied principles and methods reliably to the facts. N.C. Gen. Stat. § 8C-1, Rule
702 (2023). The State’s lab analyst expert witness admitted she did not form an
opinion on the content of the substance concerning at least one piece of evidence,
Exhibit # 22, yet the Court permitted its introduction.
By admitting this substance through an expert, who had stated she did not
form an opinion, Defendant argues the jury was left to presume the expert had some
experience, knowledge, or skill, beyond a layperson, which allowed the untested
evidence to be admitted along with the tested evidence. Defendant contends without
an analysis performed or opinion being formed, the expert witness’ testimony unfairly
prejudiced her and encouraged the jury to conclude the evidence would not have been
admitted for their consideration, unless it was probative of guilt.
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Our rules of evidence provide: “If scientific, technical or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion, or otherwise, if
all of the following apply:” (1) testimony is based on “sufficient facts or data,” (2)
testimony is “the product of reliable principles and methods,” and (3) “[t]he witness
applied the principles and methods reliably to the facts of the case.” N.C. Gen. Stat.
§ 8C-1, 702 (a) (2023).
To determine whether the expert’s testimony is based on sufficient facts or
data, “the court has discretion to consider any of the particular factors articulated in
previous cases, or other factors it may identify, that are reasonable measures of
whether the expert’s testimony is based on sufficient facts or data, whether the
testimony is the product of reliable principles and methods, and whether the expert
has reliably applied those principles and methods in that case.” State v. McGrady,
368 N.C. 880, 892, 787 S.E.2d 1, 10 (2016). To determine whether expert witness
testimony will appreciably help the jury, the trial court must balance the probative
value of the testimony against its potential for prejudice, confusion, or delay. State
v. Owen, 133 N.C. App. 543, 516 S.E.2d 159 (1999); N.C. Gen. Stat. §§ 8C-1, Rule 401;
403 (2023).
Defendant argues the first and third prong of the test for evaluating whether
an expert witness is allowed to testify to a particular conclusion are not met in this
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case. If the expert witness did not test the substance and did not form an opinion,
Defendant argues the record reflects no valid basis for her commentary on the
substances or any basis for the admission of the prejudicial “non-opinion” evidence
masquerading as expert testimony. Id.
While experts may not testify to a “particular legal conclusion or that a legal
standard has or has not been met,” State v. Walker, 385 N.C. 763, 768, 898 S.E.2d
661, 664 (2024) (citing State v Fisher, 336 N.C. 684, 703-04, 445 S.E.2d 866, 877
(1994)), the expert did not draw a conclusion on the untested exhibits as she was
testifying to the chemical analysis of the tested exhibits. The only reference the
expert witness made to the untested substance was a comment on the color of the
powder, while focusing the majority of her testimony on the tested parts of Exhibits
# 17-21. Considering the laboratory chemical testing, the admission of the other
controlled substance exhibits, and the lack of firm opinion on the untested exhibits,
no reasonable probability is shown to conclude admitting of the witness’s testimony
unfairly prejudiced Defendant to constitute plain error to award a new trial.
Without a demonstration “absent the error, the jury probably would have
reached a different result,” Jordan, 333 N.C. at 440, 426 S.E.2d at 697, Defendant
has failed to establish plain error in this case. Defendant’s argument is overruled.
VI. Conclusion
Defendant received a fair trial free from prejudicial errors she preserved and
argued on appeal and no plain error in the presumably improperly admitted evidence.
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Defendant demonstrates no reversible, prejudicial, or plain error in the trial court’s
admission of evidence, the jury’s verdicts, or in the judgments entered thereon. It is
so ordered.
NO ERROR.
Judges STADING and FREEMAN concur.
Report per Rule 30(e).
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