State v. Lewis

779 S.E.2d 147, 243 N.C. App. 757, 2015 N.C. App. LEXIS 901
CourtCourt of Appeals of North Carolina
DecidedNovember 3, 2015
Docket15-408
StatusPublished
Cited by3 cases

This text of 779 S.E.2d 147 (State v. Lewis) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lewis, 779 S.E.2d 147, 243 N.C. App. 757, 2015 N.C. App. LEXIS 901 (N.C. Ct. App. 2015).

Opinion

ZACHARY, Judge.

*758 Where the analysis of one pill, and visual comparison of the others, constituted sufficient evidence of their contents, the trial court did not err in declining to instruct the jury on lesser included conspiracy charges. Where the trial court substantially complied with N.C. Gen.Stat. § 15-167, it properly extended the court session and had jurisdiction to enter judgment upon defendant.

I. Factual and Procedural Background

In late 2011, Tamika Packer approached Marty Allan Lewis (defendant), Chief of Police of Fair Bluff, North Carolina, and asked him if he could get her twenty pain pills. Defendant received $160 from Packer and contacted James Scott, a drug dealer, from whom he purchased the pills. Defendant *148 then delivered them to Packer. Defendant was involved in multiple such transactions.

On 8 May 2012, Packer was confronted by SBI agents Adrienne Harvey and Kellie Farrell, who claimed to know everything about defendant and the pills. Through Packer, the agents set up a controlled purchase. Packer met with defendant and gave him money. Later that afternoon, they met again and defendant gave Packer twenty pills. Investigators arrested defendant and Scott and executed search warrants of their persons at the Fair Bluff police station and of defendant's and Scott's residences.

On 9 May 2012, defendant was indicted for conspiracy to traffic an opiate derivative and/or compound, conspiracy to traffic cocaine, sale and delivery of a Schedule II substance, possession with intent to sell and deliver a Schedule II substance, and possession of cocaine. Prior to trial, the State dismissed the conspiracy to traffic cocaine charge.

On 1 October 2014, the jury found defendant guilty of conspiracy to traffic 14 grams or more but less than 28 grams of opiates, sale or *759 delivery of oxycodone, and possession with intent to sell or deliver oxycodone, and not guilty of possession of cocaine. The trial court arrested judgment on the convictions for sale or delivery of oxycodone and possession with intent to sell or deliver oxycodone. The trial court sentenced defendant to an active term of 90-117 months of imprisonment.

Defendant entered oral notice of appeal.

II. Lesser Included Charges

In his first argument, defendant contends that the trial court erred in denying his request to instruct the jury on all lesser included conspiracy charges. We disagree.

A. Standard of Review

It is well established that "[arguments] challenging the trial court's decisions regarding jury instructions are reviewed de novo by this Court." State v. Osorio, 196 N.C.App. 458 , 466, 675 S.E.2d 144 , 149 (2009). "The prime purpose of a court's charge to the jury is the clarification of issues, the elimination of extraneous matters, and a declaration and an application of the law arising on the evidence." State v. Cameron, 284 N.C. 165 , 171, 200 S.E.2d 186 , 191 (1973), cert. denied, 418 U.S. 905 , 94 S.Ct. 3195 , 41 L.Ed.2d 1153 (1974). "[A] trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial." Id.

B. Analysis

Defendant was found guilty of, among other charges, conspiracy to traffic 14 grams or more but less than 28 grams of opiates. Police seized twenty pills during the controlled purchase from defendant, weighing 17.63 grams total. The State's expert analyzed one of these pills, and determined that it contained oxycodone, a Schedule II opium derivative, with a net weight of 0.88 grams. The expert visually examined the remaining nineteen pills, with a net weight of 16.75 grams, and found them to have "the same similar size, shape and form as well as the same imprint on each of them." In short, the expert visually determined that the remaining nineteen pills were consistent with the one that was tested.

At trial, defense counsel requested instructions on all lesser included conspiracy to traffic charges, alleging that the visual examination was insufficient to establish precisely how much opium derivative was present in the seized pills. The trial court denied this request. On appeal, defendant contends that because the evidence did not clearly establish the amount of opium derivative present in the pills, the jury was entitled to instructions on all lesser included conspiracy charges.

*760 Our courts have consistently held that a trial court is not required to instruct the jury on all lesser included charges when the evidence clearly demonstrates that defendant committed the crime charged. See State v. Summitt, 301 N.C. 591 , 596, 273 S.E.2d 425 , 427, cert. denied, 451 U.S. 970 , 101 S.Ct. 2048 , 68 L.Ed.2d 349 (1981) ; State v. Myers, 61 N.C.App. 554

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Cite This Page — Counsel Stack

Bluebook (online)
779 S.E.2d 147, 243 N.C. App. 757, 2015 N.C. App. LEXIS 901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lewis-ncctapp-2015.