State v. Osborne

831 S.E.2d 328, 372 N.C. 619
Supreme Court of North Carolina·Decided August 16, 2019·No. 355PA18·Published·Cited by 20 cases

Opinions

ERVIN, Justice.

**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 , 364 N.C. 133, 147, 694 S.E.2d 738, 747 (2010), to establish the identity of the substance that defendant allegedly possessed using a chemical test and that "a visual inspection is not enough" to support a determination that the substance in question was heroin. After resting without presenting any evidence, defendant renewed her dismissal motion, which the trial court again denied.

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.

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State v. Osborne, 831 S.E.2d 328, 372 N.C. 619 (N.C. 2019).

831 S.E.2d 328 (State v. Osborne) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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