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Full Opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-276
Filed 5 March 2025
Martin County, Nos. 21 CRS 50171-73
STATE OF NORTH CAROLINA
v.
ERIC RUFFIN
Appeal by Defendant from Judgments entered 29 March 2023 by Judge
Wayland J. Sermons, Jr. in Martin County Superior Court. Heard in the Court of
Appeals 6 November 2024.
Attorney General Jeff Jackson, by Assistant Attorney General Alexander H.
Ward, for the State.
Shelly Bibb DeAdder for Defendant-Appellant.
HAMPSON, Judge.
Factual and Procedural Background
Eric Ruffin (Defendant) appeals from Judgments entered upon jury verdicts
finding him guilty of Trafficking in Heroin by Sale of More than 4 but Less than 14
Grams of Heroin, Trafficking in Heroin by Delivery of More than 4 but Less than 14
Grams of Heroin, Trafficking in a Mixture Containing Heroin by Transporting More
than 4 but Less than 14 Grams of a Mixture Containing Heroin, Trafficking in a
Mixture Containing Heroin by Possession, Possession with Intent to Sell or Deliver
STATE V. RUFFIN
Opinion of the Court
(PWISD) a Controlled Substance (Mixture Containing Heroin), Sale of Marijuana,
and Delivery of Marijuana. The Record before us tends to reflect the following:
Defendant was charged with Trafficking in Heroin by Sale; Trafficking in
Heroin by Delivery; Trafficking in Heroin by Manufacture; Trafficking in Heroin by
Transportation; Trafficking in Heroin by Possession; Possession with Intent to
Manufacture, Sell, and Deliver Heroin; Sale of Marijuana; and Delivery of Marijuana
on or about 21 April 2021. Following presentation to a grand jury, the charge of
Trafficking in Heroin by Manufacture was dismissed. Defendant was indicted for
Trafficking in Heroin by Sale, Trafficking in Heroin by Delivery, Trafficking in Heroin
by Transportation, Trafficking in Heroin by Possession, Trafficking in a Mixture
Containing Heroin by Transportation, Trafficking in a Mixture Containing Heroin by
Possession, PWISD a Controlled Substance (Heroin), Sale of Marijuana, and Delivery
of Marijuana. On or about 8 August 2022, the State obtained a superseding
indictment for PWISD a Controlled Substance (Mixture Containing Heroin) rather
than PWISD a Controlled Substance (Heroin).
This matter came on for trial on 27 March 2023. At trial, the State presented
evidence tending to show that on or about 8 March 2021, a confidential informant
(CI) contacted Detective Justin Harrell of the Martin County Sheriff’s Office to
arrange a controlled buy of drugs from Defendant. Detective Harrell had used this
CI numerous times over a five-year period. At the time of trial, Detective Harrell had
been in law enforcement for nearly twelve years and in the narcotics division for nine
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STATE V. RUFFIN
Opinion of the Court
years.
On 8 March 2021, the CI sent a text message to Defendant stating he wanted
buy seven grams of fentanyl “and some marijuana.” Defendant quoted the CI a price
of “$100 a gram for fentanyl” and “$35 for an eighth of an ounce of marijuana.”
Defendant then went to the CI’s house and waited in his car. The CI paid Defendant
$735 through his car window, and Defendant gave him two separate bags containing
“the fentanyl and the marijuana.” The two spoke briefly before Defendant left.
Defendant was arrested shortly after leaving the scene. Police recovered the
substances Defendant gave the CI, including a leafy green plant material, following
the controlled buy.
Detective Harrell testified that based on his training and experience, the plant
material appeared to be marijuana. Detective Harrell also testified to his
observations during the conversation between the CI and Defendant via surveillance
equipment. During that conversation, Detective Harrell heard Defendant discuss an
“eighth”—a common shorthand for an amount of marijuana—and observed
Defendant “rolling a marijuana blunt.”
The State also called Lyndsay Cone, a forensic scientist for the North Carolina
State Crime Laboratory (Crime Lab) in the drug chemistry section, as an expert
witness in drug analysis and identification. Cone testified she used the Crime Lab’s
procedures to test the plant material and other substances seized and described those
tests. Based on that testing, Cone concluded one substance was “plant material
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STATE V. RUFFIN
Opinion of the Court
belonging to the genus cannabis containing tetrahydrocannabinol [THC],
concentration of cannabinoid not determined[.]” On cross-examination, Cone
testified to the difference between marijuana and hemp, specifically that “in
marijuana, the THC, the psychoactive ingredient, is very, very high, and the CBD is
very low whereas in hemp they’re reversed[.]” Additionally, Cone stated “at our lab
we currently do not have the ability to distinguish between marijuana and hemp
because that analysis requires what’s called a quantitative analysis which is where
you’re measuring the percentages of what’s present in the plant material[.]” Defense
counsel then asked Cone whether the plant material she tested could have been
hemp, to which she responded: “It’s possible. Yes.”
During the jury charge conference, Defendant requested the trial court add the
following to the pattern jury instruction for the marijuana-related charges: “the term
[marijuana] does not include hemp or hemp products.” The trial court read the
proposed instruction back to defense counsel who confirmed it was as requested. The
trial court allowed Defendant’s proposed instruction. Defendant did not otherwise
object to the trial court’s jury instructions.
On 29 March 2023, the jury returned verdicts finding Defendant guilty of
Trafficking in Heroin by Sale of More than 4 but Less than 14 Grams of Heroin,
Trafficking in Heroin by Delivery of More than 4 but Less than 14 Grams of Heroin,
Trafficking in a Mixture Containing Heroin by Transporting More than 4 but Less
than 14 grams of a Mixture Containing Heroin, Trafficking in a Mixture Containing
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STATE V. RUFFIN
Opinion of the Court
Heroin by Possession, PWISD a Controlled Substance (Mixture Containing Heroin),
Sale of Marijuana, and Delivery of Marijuana. The trial court sentenced Defendant
to a term of 70 to 93 months of imprisonment for Trafficking in Heroin by Sale and
an additional term of 70 to 93 months of imprisonment for Trafficking in a Mixture
Containing Heroin by Transportation to run consecutively.
Defendant was also sentenced to two terms of 70 to 93 months of
imprisonment, one for Trafficking in Heroin by Delivery and the other for Trafficking
in a Mixture Containing Heroin by Possession, set to run concurrently with the
Trafficking in Heroin by Sale sentence. The trial court sentenced Defendant to a
further 8 to 19 months of imprisonment for PWISD (Mixture Containing Heroin).
The trial court consolidated the convictions for Sale of Marijuana and Delivery of
Marijuana and sentenced Defendant to 8 to 19 months of imprisonment to run
concurrently with his sentence for Trafficking in a Mixture Containing Heroin by
Transportation. Defendant orally gave Notice of Appeal in open court on 29 March
2023.
Issues
The issues on appeal are whether the trial court erred by: (I) denying
Defendant’s Motion to Dismiss his marijuana charges; (II) admitting Detective
Harrell’s testimony; (III) admitting Cone’s expert testimony; (IV) instructing the jury
using the pattern instruction and Defendant’s requested instruction verbatim; (V)
sentencing Defendant on consolidated marijuana offenses concurrently with a longer
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STATE V. RUFFIN
Opinion of the Court
sentence; and (VI) considering the seriousness and impact of Defendant’s trafficking
heroin offenses in sentencing.
Analysis
I. Detective Harrell’s Testimony
Defendant contends the trial court plainly erred by allowing Detective Harrell
to testify that the plant material in question was marijuana. Defendant did not object
to Detective Harrell’s testimony at trial. Thus, our review is limited to plain error.
N.C.R. App. P. 10(a)(4) (2023) (“In criminal cases, an issue that was 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.”).
“For error to constitute plain error, a defendant must demonstrate that a
fundamental error occurred at trial.” State v. Lawrence, 365 N.C. 506, 518, 723
S.E.2d 326, 334 (2012) (citation omitted). Further, “[t]o show that an error was
fundamental, a defendant must establish prejudice—that, after examination of the
entire record, the error ‘had a probable impact on the jury’s finding that the defendant
was guilty.’ ” Id. (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378
(1983) (citation omitted)). Thus, plain error is reserved for “the exceptional case
where, after reviewing the entire record, it can be said the claimed error is a
‘fundamental error, something so basic, so prejudicial . . . that justice cannot have
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STATE V. RUFFIN
Opinion of the Court
been done,’ or ‘where [the error] is grave error which amounts to a denial of a
fundamental right of the accused[.]’ ” Odom, 307 N.C. at 660, 300 S.E.2d at 378
(quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)) (emphasis in
original).
Under our statutes, at the time of the underlying incident, marijuana was
defined as “all parts of the plant of the genus Cannabis . . . not includ[ing] industrial
hemp[.]” N.C. Gen. Stat. § 90-87(16) (2021). Industrial hemp was defined under the
Industrial Hemp Act as any variety of cannabis which contained no more than 0.3%
of THC and was “cultivated or possessed by a grower licensed by the [North Carolina
Industrial Hemp] Commission.” N.C. Gen. Stat. § 106-568.51(7) (2022).1
Our Rules of Evidence provide a lay witness’ testimony “in the form of opinions
or inferences is limited to those opinions or inferences which are (a) rationally based
on the perception of the witness and (b) helpful to a clear understanding of his
testimony or the determination of a fact in issue.” N.C. Gen. Stat. § 8C-1, Rule 701
(2023). Generally, “in prosecutions involving controlled substances, the State bears
the burden of proving the substance’s identity beyond a reasonable doubt.” State v.
Teague, 286 N.C. App. 160, 184, 879 S.E.2d 881, 899 (2022) (citing State v. Ward, 364
N.C. 133, 147, 694 S.E.2d 738, 747 (2010)). However, this Court has consistently held
1 The Industrial Hemp Act expired on 30 June 2022; however, the General Assembly added
the same definition of hemp to N.C. Gen. Stat. § 90-87(13a), which maintained the legal status of hemp
while removing a licensure requirement. Further, the General Assembly modified the definition of
“marijuana” to not include hemp. N.C. Gen. Stat. § 90-87(16) (2023).
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Opinion of the Court
that “a police officer experienced in the identification of marijuana may testify to his
visual identification of evidence as marijuana[.]” State v. Garnett, 209 N.C. App. 537,
546, 706 S.E.2d 280, 286 (2011); see also State v. Johnson, 225 N.C. App. 440, 455,
737 S.E.2d 442, 451 (2013) (“It is well established that officers with proper training
and experience may opine that a substance is marijuana.”); State v. Jones, 216 N.C.
App. 519, 526, 718 S.E.2d 415, 421 (2011) (“[O]ur case law provides that an officer
may testify that the contraband seized was marijuana based on visual inspection
alone.”).
Here, Detective Harrell testified to his training and experience at trial.
Detective Harrell testified that at the time of the trial, he had worked for the Martin
County Sheriff’s Office for nearly twelve years and had worked in the narcotics
division for nine years. In that role, he investigated narcotics-related offenses, the
transportation of illegal narcotics, and worked with confidential informants. He also
stated that he completed yearly narcotics training. After testifying to the events
leading up to Defendant’s arrest, Detective Harrell testified that, based on his
training and experience, the plant material appeared to be marijuana. Consistent
with our caselaw, this identification was properly admitted because Detective Harrell
is a law enforcement officer with proper training and experience in narcotics.
Defendant points to State v. Ward, 364 N.C. 133, 694 S.E.2d 738 (2010),
arguing a law enforcement officer’s visual identification is no longer reliable since our
General Assembly legalized hemp because hemp and marijuana are
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Opinion of the Court
indistinguishable without a chemical analysis. In Ward, our Supreme Court held
“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.” Id. at 147, 694 S.E.2d at 747. We believe Ward
is distinguishable from the case at hand.
First, we note our Supreme Court in Ward expressly stated: “This holding is
limited to North Carolina Rule of Evidence 702.” Id. Rule 702 governs expert
testimony only. Thus, the standard for lay opinion testimony under Rule 701—
including Detective Harrell’s testimony—is unchanged in light of Ward. Moreover,
the contraband substances at issue in Ward were pharmaceuticals, not marijuana.
Id. at 135-39, 694 S.E.2d at 740-42. And our cases following Ward have affirmed that
law enforcement officers may still offer lay opinion testimony identifying a substance
as marijuana. E.g., Garnett, 209 N.C. App. at 546, 706 S.E.2d at 286; Johnson, 225
N.C. App. at 455, 737 S.E.2d at 451; State v. Mitchell, 224 N.C. App. 171, 179, 735
S.E.2d 438, 444 (2012); State v. Cox, 222 N.C. App. 192, 198, 731 S.E.2d 438, 443
(2012), rev’d on other grounds, 367 N.C. 147, 749 S.E.2d 271 (2013); Jones, 216 N.C.
App. 519, 526, 718 S.E.2d 415, 421 (2011). But see State v. Highsmith, 285 N.C. App.
198, 199, 877 S.E.2d 389, 390 (2022) (acknowledging the emergence of hemp, “another
plant that looks and smells the same as illegal marijuana but is legal in North
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STATE V. RUFFIN
Opinion of the Court
Carolina,” has “brought about speculation and discussion surrounding the ability of
law enforcement to use the sight and scent traditionally associated with marijuana”
to establish probable cause). Consistent with this caselaw, we conclude the admission
of Detective Harrell’s opinion testimony identifying the plant material as marijuana
was not error. Therefore, the admission was not plain error.
II. Expert Testimony
Similarly, Defendant contends the trial court’s admission of Cone’s testimony
as an expert witness to identify the plant material in question as marijuana was plain
error. Defendant did not object to Cone’s testimony at trial. Thus, we again apply
the plain error standard of review. See Lawrence, 365 N.C. at 518, 723 S.E.2d at 334.
Rule of Evidence 702 governs the admissibility of expert testimony. This Rule
provides:
(a) 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) The testimony is based upon sufficient facts or data.
(2) The testimony is the product of reliable principles and
methods.
(3) The witness has applied the principles and methods
reliably to the facts of the case.
N.C. Gen. Stat. § 8C-1, Rule 702(a) (2023). Defendant contends none of the three
criteria were satisfied in this case.
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Opinion of the Court
As our Supreme Court has noted, North Carolina adopted the federal Daubert
standard for determining whether to admit expert opinion testimony. State v.
McGrady, 368 N.C. 880, 888, 787 S.E.2d 1, 8 (2016). Consistent with this standard,
a trial court applies the three-pronged reliability test set forth in Rule 702(a). “The
primary focus of the inquiry is on the reliability of the witness’s principles and
methodology, not on the conclusions that they generate.” Id. at 890, 787 S.E.2d at 9
(citations and quotation marks omitted). “The precise nature of the reliability inquiry
will vary from case to case depending on the nature of the proposed testimony. In
each case, the trial court has discretion in determining how to address the three
prongs of the reliability test.” Id. (citing Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137, 152-53, 119 S. Ct. 1167, 1176, 143 L. Ed. 2d 238 (1999)). “Trial courts enjoy
‘wide latitude and discretion when making a determination about the admissibility
of [expert] testimony.’ ” State v. King, 366 N.C. 68, 75, 733 S.E.2d 535, 539-40 (2012)
(quoting State v. Wise, 326 N.C. 421, 432, 390 S.E.2d 142, 149 (1990), cert. denied,
498 U.S. 853, 111 S. Ct. 146, 112 L. Ed. 2d 113 (1990)).
Defendant points to State v. Teague for the proposition that the identity of a
controlled substance must be proven by “scientifically valid chemical analysis and not
mere visual inspection.” 286 N.C. App. 160, 184, 879 S.E.2d 881, 899 (2022) (quoting
Ward, 364 N.C. at 142, 694 S.E.2d at 744). Yet the next sentence of that opinion
reads: “However, marijuana has long been excepted from this rule.” Id. Further,
“[n]otwithstanding Ward, this Court has ‘specifically noted that marijuana is
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STATE V. RUFFIN
Opinion of the Court
distinguishable from other controlled substances that require more technical
analyses for positive identification. In keeping with a long line of cases, we [have
repeatedly] held . . . that the State is not required to submit marijuana for chemical
analysis.’ ” Id. (quoting State v. Mitchell, 224 N.C. App. 171, 179, 735 S.E.2d 438, 444
(2012) (citation omitted), appeal dismissed and disc. review denied, 366 N.C. 578, 740
S.E.2d 466 (2013)) (alterations in original). Consistent with our caselaw then, the
State was not required to submit the plant material for chemical analysis. The
question remaining is whether, although the State did not need to submit a chemical
analysis, Cone’s expert testimony was otherwise reliable under Rule 702(a).
Cone’s procedure substantially matches that approved of by this Court in State
v. Abrams, 248 N.C. App. 639, 789 S.E.2d 863 (2016). There, as here, the defendant
challenged the expert witness’ testimony as not based on reliable principles and
methods and argued she had not applied the principles and methods reliably to the
facts of the case under Rule 702(a). Id. at 642-46, 789 S.E.2d at 865-67. At trial, the
State’s expert witness testified she followed the procedures in place at the Crime Lab
for identifying marijuana at the time, including weighing the material, conducting a
preliminary color test and microscopic examination, followed by a chemical reaction
color test. Id. at 644, 789 S.E.2d at 866.
At trial, the State called and qualified Cone, a forensic scientist with the Crime
Lab, as an expert in drug analysis and identification. Cone testified she tested
evidence submitted by the State in accordance with the procedures for identifying
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STATE V. RUFFIN
Opinion of the Court
marijuana used by the Crime Lab at the time. Those procedures included weighing
the material, a macroscopic test, a preliminary test, a microscopic exam, and a
confirmatory test. Based on that testing, Cone concluded the plant material
Defendant possessed was cannabis containing THC, “concentration of cannabinoid
not determined[.]” This Court has consistently approved of similar procedures in our
caselaw. E.g., Abrams, 248 N.C. App. at 644-46, 789 S.E.2d at 866-67; State v. Hall,
287 N.C. App. 394, *9, 881 S.E.2d 762 (2022) (unpublished). Thus, the expert
testimony identifying the plant material as marijuana was sufficiently reliable under
Rule of Evidence 702(a). Therefore, the trial court did not plainly err in admitting
this testimony.
III. Motion to Dismiss
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted).
“Upon [a] defendant’s motion for dismissal, the question for the Court is whether
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. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373,
378, 526 S.E.2d 451, 455 (2000) (citation omitted). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984) (citation
omitted). “If the evidence is sufficient only to raise a suspicion or conjecture as to
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STATE V. RUFFIN
Opinion of the Court
either the commission of the offense or the identity of the defendant as the
perpetrator of it, the motion [to dismiss] should be allowed.” Fritsch, 351 N.C. at 378,
526 S.E.2d at 455. “In making its determination, the trial court must consider all
evidence admitted, whether competent or incompetent, in the light most favorable to
the State, giving the State the benefit of every reasonable inference and resolving any
contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223
(1994) (citation omitted).
Defendant contends the trial court erred in denying his Motion to Dismiss the
marijuana-related charges because the State did not present sufficient evidence
showing his plant material was marijuana, rather than hemp. The jury found
Defendant guilty of both Sale and Delivery of Marijuana pursuant to N.C. Gen. Stat.
§ 90-95(a)(1).
At trial, the State presented testimony from both Detective Harrell, an
experienced narcotics officer, and Lyndsay Cone, a forensic scientist for the Crime
Lab, to establish that the plant material was marijuana. First, as discussed
previously, Detective Harrell consistently testified he believed the plant material was
marijuana “based on [his] training and experience.” Further, Detective Harrell
testified he heard Defendant discuss an “eighth”—referring to marijuana—and
observed Defendant “rolling a marijuana blunt” via surveillance equipment.
Cone, a forensic scientist for the Crime Lab, testified she performed multiple
tests and determined the substance belonging to Defendant was “plant material
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STATE V. RUFFIN
Opinion of the Court
belonging to the genus cannabis containing [THC], concentration of cannabinoid not
determined[.]” Cone acknowledged she could not determine the concentration of THC
in the sample in the Crime Lab. However, as Defendant concedes, “our courts have
never held [a chemical analysis] is necessary” to allow a jury to determine whether a
substance was marijuana or hemp. State v. Massey, 287 N.C. App. 501, 511, 882
S.E.2d 740, 749 (2023); see also State v. Osborne, 372 N.C. 619, 630-31, 831 S.E.2d
328, 336 (2019). Indeed, our courts have consistently affirmed that testimony
identifying a substance as marijuana—from a law enforcement officer as well as a
forensic expert—is sufficient to take the matter to the jury. See State v. Booth, 286
N.C. App. 71, 78-80, 879 S.E.2d 370, 376-77 (2022); State v. Massey, 287 N.C. App.
501, 511, 882 S.E.2d 740, 749 (2023); State v. Duncan, 286 N.C. App. 159, *5-*6, 878
S.E.2d 682 (2022) (unpublished); State v. Johnson, 225 N.C. App. 440, 455, 737 S.E.2d
442, 451 (2013); State v. Mitchell, 217 N.C. App. 401, *3, 720 S.E.2d 29 (2011)
(unpublished).
The relevant facts in this case are similar to those in State v. Booth, 286 N.C.
App. 71, 879 S.E.2d 370 (2022). In Booth, a law enforcement officer conducted
controlled buys of marijuana using a confidential informant. Id. at 72, 879 S.E.2d at
372. The officer recovered a “green leafy substance” which he identified as marijuana
based on his training and experience. Id. at 73, 79, 879 S.E.2d at 373-74, 376. On
appeal, the defendant contended the trial court improperly denied his motion to
dismiss the marijuana charges because, in his view, the State had failed to introduce
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Opinion of the Court
sufficient evidence the substance in question was marijuana rather than hemp. Id.
at 77, 879 S.E.2d at 375. At trial, the State presented evidence the defendant
admitted seized items—including plastic baggies and a scale—belonged to him;
defendant had on his person money that had been provided to the confidential
informant; and the law enforcement officer’s testimony identifying the substance at
issue as marijuana based on his training and experience. Id. at 79, 879 S.E.2d at 376.
This Court determined this evidence was sufficient to survive the defendant’s motion
to dismiss. Id. at 79-80, 879 S.E.2d at 376-77.
Here, the State presented Detective Harrell’s testimony identifying the plant
material as marijuana based upon his training and experience as a narcotics officer.
Detective Harrell also testified to hearing Defendant discussing an “eighth”—a
common unit of marijuana for sale—with the CI via surveillance equipment.
Detective Harrell also observed Defendant “rolling a marijuana blunt.” Further, the
State presented the testimony of Lyndsay Cone, an experienced forensic scientist at
the Crime Lab, who performed multiple tests on Defendant’s plant material and
concluded it was marijuana. Thus, based on our caselaw, the State presented
substantial evidence the plant material belonging to Defendant was marijuana.
Therefore, the trial court properly denied Defendant’s Motion to Dismiss.
IV. Jury Instructions
Defendant argues the trial court plainly erred by not instructing the jury on
the legal definitions of marijuana and hemp. Because Defendant made no objection
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Opinion of the Court
to the jury instructions at trial, our review is again limited to plain error. See N.C.R.
App. P. 10(a)(4) (2023) (“In criminal cases, an issue that was 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.”).
“For error to constitute plain error, a defendant must demonstrate that a
fundamental error occurred at trial.” State v. Lawrence, 365 N.C. 506, 518, 723
S.E.2d 326, 334 (2012) (citation omitted). “To show that an error was fundamental,
a defendant must establish prejudice—that, after examination of the entire record,
the error ‘had a probable impact on the jury’s finding that the defendant was guilty.’
” Id. (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation
omitted)).
“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. Kuhns, 260 N.C. App. 281, 284, 817 S.E.2d 828,
830 (2018) (quoting State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973)).
“Accordingly, ‘it is the duty of the trial court to instruct the jury on all substantial
features of a case raised by the evidence.’ ” Id. (quoting State v. Shaw, 322 N.C. 797,
803, 370 S.E.2d 546, 549 (1988)). “It is a well-established principle in this jurisdiction
that in reviewing jury instructions for error, they must be considered and reviewed
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Opinion of the Court
in their entirety.” Murrow v. Daniels, 321 N.C. 494, 497, 364 S.E.2d 392, 395
(1988) (citation omitted). “This Court has recognized that the preferred method of
jury instruction is the use of the approved guidelines of the North Carolina Pattern
Jury Instructions.” State v. Ballard, 193 N.C. App. 551, 555, 668 S.E.2d 78, 81 (2008)
(citation omitted).
Here, during the charge conference discussion on the instructions around the
Sale and Delivery of Marijuana charges, Defendant asked the trial court to add the
following to the pattern jury instruction: “the term [marijuana] does not include hemp
or hemp products.” The trial court read the proposed instruction back and defense
counsel confirmed that was how he wished it to read. Thus, for Defendant’s
marijuana charges, the trial court instructed the jury in accordance with the pattern
jury instructions, with the only deviation being the inclusion of Defendant’s proposed
instruction. On appeal, Defendant contends this instruction was plainly erroneous
because it omitted information specifying that marijuana has a Delta-9 THC content
in excess of 0.3%, while hemp has a Delta-9 THC content of 0.3% or less.
Our Courts have repeatedly approved of jury instructions that are consistent
with the North Carolina Pattern Jury Instructions. See e.g., State v. DeCastro, 342
N.C. 667, 693, 467 S.E.2d 653, 666 (1996) (concluding instructions were “a correct
statement of the law” where “[t]he instruction as given was virtually identical to the
pattern jury instructions[.]”). The instruction in this case was identical to the pattern
instruction with the exception of Defendant’s requested instruction, which the trial
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Opinion of the Court
court gave verbatim. Moreover, Defendant’s requested instruction was an accurate
statement of the law, as our statutes define “marijuana” as “all parts of the plant of
the genus Cannabis. . . . The term does not include hemp or hemp products.” N.C.
Gen. Stat. § 90-87(16) (2023). Thus, we cannot conclude the omission of the language
specifying the THC content in marijuana as opposed to hemp was plain error.
V. Concurrent Sentencing
Defendant asserts he was improperly sentenced for both selling and delivering
marijuana as part of the same transaction. Even assuming without deciding that
Defendant’s marijuana convictions both arose from the same transaction, we conclude
any error was harmless.
Defendant correctly cites State v. Moore, in which our Supreme Court held “[a]
defendant may not, however, be convicted under N.C.G.S. § 90-95(a)(1) of both the
sale and the delivery of a controlled substance arising from a single transfer.” 327
N.C. 378, 382, 395 S.E.2d 124, 127 (1990) (emphasis in original). In Moore, the
defendant was convicted of possession, sale, and delivery of a controlled substance
charged in one indictment, as well as possession with intent to sell or deliver, sale of
a controlled substance, and delivery of a controlled substance charged in a second
indictment. Id. at 380, 395 S.E.2d at 125. The trial court consolidated the three
counts in each indictment and sentenced the defendant to consecutive sentences of
six years of imprisonment. Id. at 380, 395 S.E.2d at 126.
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Opinion of the Court
This Court recently applied Moore in remanding a case for resentencing where
the defendant was convicted of two counts each of possession, sale, and delivery of a
controlled substance. State v. Morris, 288 N.C. App. 65, 88-89, 884 S.E.2d 750, 766-
67 (2023). There, the trial court entered judgment on both the sale and delivery
charges, sentencing the defendant to two terms of imprisonment of 15 to 27 months.
Id. at 71, 884 S.E.2d at 755. The instant case is readily distinguishable.
Although Defendant was sentenced for both Sale and Delivery of Marijuana,
the trial court consolidated those convictions to run concurrently with the longer
sentence for Trafficking in a Mixture Containing Heroin by Transportation.
Defendant’s term of imprisonment would thus be the same even without a sentence
for the sale and delivery of marijuana. Indeed, Defendant concedes that even if this
matter were remanded for resentencing, the term of imprisonment “might not
change” because the sentences run concurrently. Thus, Defendant has not
established he was prejudiced by this alleged error. See State v. Pope, 257 N.C. 326,
335, 126 S.E.2d 126, 133 (1962) (“A judgment will not be disturbed because of
sentencing procedures unless there is a showing of . . . procedural conduct prejudicial
to [the] defendant[.]”); State v. Chivers, 180 N.C. App. 275, 281, 636 S.E.2d 590, 595
(2006) (overruling assignment of error where trial court improperly calculated
defendant’s prior record level but defendant was not prejudiced); State v. Williams,
65 N.C. App. 472, 478, 310 S.E.2d 83, 87 (1983) (“Upon arrival of the case in the
appellate division the burden is upon the criminal defendant not only to show error
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Opinion of the Court
but to show prejudicial error.”). Therefore, we conclude the trial court did not plainly
err in sentencing Defendant on the marijuana-related charges.
VI. Sentencing Considerations
Finally, Defendant contends the trial court erred in sentencing because, in his
view, the trial court considered extraneous information presented by the prosecutor
when imposing two consecutive sentences for Trafficking Heroin by Transportation.
We disagree.
Prior to sentencing, the trial prosecutor informed the court, “there are
circumstances around this particular sale that didn’t come out in the trial. . . that
being the death of Tina Harrison . . . I know he hasn’t been convicted of that, but the
State would ask that you take that into consideration.” However, during sentencing,
the trial court made the following statements to Defendant: “Well, what do you call
peddling dope that kills people?” and “I just can’t understand. Marijuana you know.
. . Marijuana is marijuana. You jacked it up to heroin and fentanyl” and “we have
another proceeding at some point in the future because he’s charged with death by
distribution. I did not consider that. . . . [T]hat will rise or fall on its own evidence.”
Defendant argues these comments demonstrate the trial court relied on the
prosecuting counsel’s remarks, directly impacting the imposition of two consecutive
active sentences of 70 to 93 months, as opposed to imposing concurrent sentences.
“When this Court is confronted with statutory errors regarding sentencing
issues, such errors are questions of law, and as such, are reviewed de novo.” State v.
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STATE V. RUFFIN
Opinion of the Court
Allen, 249 N.C. App. 376, 379, 790 S.E.2d 588, 591 (2016) (citation and quotation
marks omitted). “When a sentence is within the statutory limit it will be presumed
regular and valid unless ‘the record discloses that the court considered irrelevant and
improper matter in determining the severity of the sentence.’ ” State v. Davis, 167
N.C. App. 770, 775, 607 S.E.2d 5, 9 (2005) (quoting State v. Johnson, 320 N.C. 746,
753, 360 S.E.2d 676, 681 (1987)). “If the record discloses that the [trial] court
considered irrelevant and improper matter in determining the severity of the
sentence, the presumption of regularity is overcome, and the sentence is in violation
of [the] defendant’s rights.” State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465
(1977) (citation omitted). However, where “the record reveals no such express
indication of improper motivation,” the defendant is not entitled to a new sentencing
hearing. Johnson, 320 N.C. at 753, 360 S.E.2d at 681. In the present case, we cannot
conclude that the trial court improperly considered extraneous information in
determining the nature of Defendant’s sentence.
This Court has previously analyzed a trial court’s sentencing considerations in
State v. Oakes, 219 N.C. App. 490, 724 S.E.2d 132 (2012). There, the Court observed,
“defendant cites no authority—and we know of none—suggesting that a trial court
may not take into account the seriousness of a crime and the defendant’s criminal
record in deciding where within a presumptive range a defendant’s sentence should
fall.” Id. at 497, 724 S.E.2d at 137. Indeed, the Court noted, “If a trial court is free
to choose ‘any’ minimum term, we fail to see why a trial court should not be able to
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STATE V. RUFFIN
Opinion of the Court
take into account the seriousness of the particular offense when exercising its
discretion[.]” Id. at 498, 724 S.E.2d at 138.
Similarly, in State v. Butler, when sentencing the defendant on two drug
trafficking charges, the trial court expressly cited the broader impact of drugs on the
community as a reason for imposing consecutive, rather than concurrent, active
sentences. 147 N.C. App. 1, 13-14, 556 S.E.2d 304, 312 (2001). There, during
sentencing, the trial court explained the sentence it imposed as follows: “The primary
[reason] is that drugs in the community impact a lot of people, not just individuals
who take the drugs. . . . It impacts everybody around you[.]” Id. at 14, 556 S.E.2d at
312. On appeal, this Court affirmed the trial court’s decision, holding it was not
improper for the trial court to consider the general societal impact of drugs when
determining sentences, even though it was not specifically related to the defendant’s
actions. Id. at 14, 556 S.E.2d at 313. Finally, in State v. Juarez, Defendant appealed
consecutive active sentences for Trafficking in Heroin. 270 N.C. App. 202, *1, 837
S.E.2d 724 (2020) (unpublished). Although Juarez is unpublished and thus not
controlling legal authority,2 we find it instructive. There, this Court rejected the
defendant’s claim, holding “it was not improper for the trial court to consider the
impact of drugs when deciding the appropriate sentence for defendant.” Id. at *3.
2 Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure provides: “An unpublished
decision of the North Carolina Court of Appeals does not constitute controlling legal authority.”
N.C.R. App. P. 30(e)(3) (2024).
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STATE V. RUFFIN
Opinion of the Court
This is consistent with Butler’s holding that a trial court may weigh the broader
effects of drugs when imposing sentences for drug-related offenses. Thus, this Court
has consistently affirmed a trial court’s discretion to consider certain factors beyond
the immediate offense, such as societal impact and the severity of the crime, when
determining sentences.
Here, Defendant contends the trial court improperly considered extraneous
information during sentencing, specifically outside drug charges and a death by
distribution charge. Although the trial court acknowledged the prosecutor’s request
to consider these factors, it expressly said it did not consider the death by distribution
charge, stating, “I did not consider that. . . . [T]hat will rise or fall on its own evidence.”
In the present case, the Record is even clearer than those in Oakes, Butler, and
Juarez. Unlike the aforementioned cases, the trial court here expressly rejected the
prosecutor’s arguments regarding the separate charges on the Record and
affirmatively stated that other charges would be considered in separate proceedings.
The trial court’s unambiguous language reinforces our conclusion the trial court did
not rely on the separate charges against Defendant.
Moreover, the challenged statements fall within the bounds of permissible
considerations under our caselaw. During sentencing, the trial court made references
to the societal impact of drugs and the severity of Defendant’s offenses:
I don’t know how in the world you thought that it was anywhere
near a good business to be in to sell fentanyl and heroin but
fentanyl that kills people just by touching it and you seem like a
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Opinion of the Court
smart guy, and I’m pretty sure you saw on the news people dying
of fentanyl all the time, and it escapes me that you didn’t just
dismiss that because you were making money with – with getting
people hooked on this terrible, terrible drug.
As this Court noted in Butler, consideration of the broader societal impact of drug
crimes is permissible during sentencing. 147 N.C. App. at 14, 556 S.E.2d at 313.
Further, as in Oakes, it is within the trial court’s discretion to consider the severity
of the crime itself at sentencing. 219 N.C. App. at 498, 724 S.E.2d at 138.
Defendant points to State v. Johnson, 265 N.C. App. 85, 827 S.E.2d 139 (2019),
in support of his argument. There, this Court vacated the defendant’s sentence after
determining the trial court improperly considered offenses for which the defendant
had not been charged. Id. at 90-91, 827 S.E.2d at 143. In that case, the trial court
expressly acknowledged matters outside the record in sentencing, stating they were
“even more important[ ] to me.” Id. at 88, 827 S.E.2d at 141. The present case is
distinguishable.
In Johnson, “the trial judge did not just consider the impact of [the] defendant’s
drug offenses on the community, but clearly indicated in her remarks that she was
considering a specific offense in her community for which [the] defendant was not
charged.” Id. at 89, 827 S.E.2d at 142. In contrast, here the trial court expressly
rejected the prosecutor’s arguments regarding other charges, stating: “we have
another proceeding at some point in the future because he’s charged with death by
distribution. I did not consider that. . . . [T]hat will rise or fall on its own evidence.”
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STATE V. RUFFIN
Opinion of the Court
The clear rejection of extraneous information rebuts Defendant’s claim the trial court
relied on impermissible factors in sentencing him.
Thus, there is no indication on this Record the sentence imposed on Defendant
was based on improper extraneous information. Therefore, the trial court did not err
in sentencing Defendant to consecutive active sentences within the presumptive
range set by the sentencing guidelines. Consequently, the trial court properly entered
the Judgments on Defendant’s convictions.
Conclusion
Accordingly, for the foregoing reasons, we conclude there was no error in
Defendant’s trial and affirm the Judgments.
NO ERROR.
Judges ARROWOOD and COLLINS concur.
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Case Information
- Court
- N.C. Ct. App.
- Decision Date
- March 5, 2025
- Status
- Precedential