This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on November 1, 2022. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present. The summary of State v. Teague was prepared by Phil Dixon.
Search of defendant’s home was directly related to probation supervision of defendant’s live-in girlfriend.
State v. Lucas, 2022-NCCOA-714, ___ N.C. App. ___ (Nov. 1, 2022). In this Macon County case, defendant appealed after entering a guilty plea to trafficking in opiates/heroin and marijuana, arguing the trial court erred by denying his motion to suppress the evidence obtained during a warrantless search of his residence. The Court of Appeals affirmed the denial of defendant’s motion.
Beginning in September of 2017, defendant’s live-in girlfriend was on supervised probation, which included conditions that she submit to warrantless searches of her home and that she not use, possess or control any illegal drug or controlled substance. During her probation, probation officers repeatedly found defendant’s girlfriend with pills and evidence of drug use. In August of 2018, the girlfriend screened positive for cocaine, THC, and opiates. After the positive screening, probation officers decided to search her vehicle, finding additional pills, and subsequently decided to search her residence, which was defendant’s home. Officers smelled marijuana in the residence; after establishing the existence of marijuana in the home, the officers obtained a search warrant for the entire premises, finding drug paraphernalia, opiates, sealed bags of marijuana, and $42,594 in cash. After the trial court denied defendant’s motion to suppress, defendant pleaded guilty to the charges, reserving his right to appeal.
On appeal, the court considered three questions: (1) whether the probation officers properly concluded that defendant’s home was his girlfriend’s residence; (2) did probable cause exist to support the issuance of a search warrant when details from the girlfriend were included without proper evaluation of her reliability as a witness; and (3) was the warrantless search of defendant’s home directly related to the purposes of defendant’s girlfriend’s supervised probation, as required by G.S. § 15A-1343(b)(13)? Rejecting defendant’s argument in (1), the court explained that, although the record suggested that defendant’s girlfriend had moved out on July 24, 2018, an officer observed her back in defendant’s yard on July 29, 2018, and the girlfriend confirmed her address as defendant’s residence on August 8, 2018. Additionally, defendant did not object that his girlfriend had moved out when probation officers arrived to perform a warrantless search on August 15, 2018, something a reasonable person would have done if defendant’s home was not her residence. Slip Op. at 17.
Reviewing (2), the court explained that the detective who prepared the affidavit for the search warrant included his own observations and experience in law enforcement related to narcotics investigations. The court also pointed out that the trial court “identified [defendant’s girlfriend’s] statements as hearsay” and found her credibility “highly questionable” for purposes of the affidavit. Id. at 24. Despite this, the testimony of the officers involved supported the issuance of the search warrant, and the trial court did not give undue weight to defendant’s girlfriend’s statements.
Turning finally to (3), the court examined State v. Powell, 253 N.C. App. 590 (2017), and recent changes to G.S. § 15A-1343(b)(13) requiring a search of a residence by a probation officer to be “directly related to the probation supervision.” Slip Op. at 25-26. The court drew a contrast between Powell, explaining that in the current matter, defendant’s girlfriend failed a drug test screening and was found in possession of narcotics on her person and in her vehicle, activity that was directly related to violations of her probation, and it was these actions that led to the screening. Id. at 28. Despite the presence of other law enforcement at the scene, the court found that “[a]lthough the search may have served two purposes, (1) to further the supervisory goals of probation, and (2) to investigate other potential criminal behavior . . . the dual purpose of the search did not make the search unlawful under [G.S. § 15A-]1343(b)(13).” Id. at 29.
Defendant failed to preserve fatally defective indictment for appeal; recording of private bench conferences is not required under G.S. § 15A-1241 unless specifically requested by the party.
State v. Mackey, 2022-NCCOA-715, ___ N.C. App. ___ (Nov. 1, 2022). In this Cabarrus County case, defendant appealed his convictions for uttering a forged instrument and obtaining property by false pretenses, arguing that the indictment was fatally defective and the record of the hearing omitted conversations by the bench. The Court of Appeals found no error.
Reviewing defendant’s arguments on appeal, the court first explained that “[a] defendant must bring a motion to quash a fatally defective indictment to preserve the issue on appeal.” Slip Op. at 4. Because defendant did not move to quash the indictment, he forfeited this argument on appeal; defendant’s motion to dismiss at trial was a motion to dismiss for insufficiency of the evidence, and this motion did not reference the fatally defective indictment.
Regarding defendant’s recordation argument, the court pointed to State v. Blakeney, 352 N.C. 287 (2000), to draw the distinction between recording statements in open court and statements made during private bench conferences. Slip Op. at 6-7. Because applicable precedent held that G.S. § 15A-1241 does not require recording of private bench conferences, and defendant did not request the recording of these conferences, there was no error by the trial court.
Indictment was not flawed because name of school system in indictment “imported” the legal entity of the county board of education.
State v. Edwards, 2022-NCCOA-712, ___ N.C. App. ___ (Nov. 1, 2022). In this Graham County case, defendant appealed the denial of his motion for appropriate relief (MAR) due to a flaw in the indictment, arguing that the indictment failed to allege a legal entity capable of owning property. The Court of Appeals affirmed the denial of defendant’s MAR.
The basis of defendant’s argument arose from his conviction for breaking and entering, felony larceny, and felony possession of goods in 1994, after defendant stole a television, VCR, and microwave from what the indictment identified as “Graham County Schools,” with the additional location identified as “Robbinsville Elementary School.” When defendant was subsequently indicted in 2020 for possession of stolen goods or property and safecracking, and attaining habitual felon status, defendant filed a MAR. Defendant argued that “Graham County Schools” was not a legal entity; the trial court denied the MAR, finding that “Graham County Schools” implied the actual ownership of “Graham County Board of Education.” Slip Op. at 2-3.
The court explained that North Carolina law does require identification of an entity capable of owning property, but “larceny indictments have been upheld where the name of the entity relates back or ‘imports’ an entity that can own property.” Id. at 5. Referencing State v. Ellis, 368 N.C. 342 (2015), the court noted that a larceny indictment listing “North Carolina State University” was upheld although the statute only identifies N.C. State University as a constituent institution of the University of North Carolina. Slip Op. at 6. Here, the court found that “Graham County Schools” similarly imported the Graham County Board of Education.
No ineffective assistance of counsel where defendant consented to defense strategy but later chose not to testify regarding self-defense; admission of lay opinion was not prejudicial.
State v. Moore, 2022-NCCOA-716, ___ N.C. App. ___ (Nov. 1, 2022). In this Alamance County case, defendant appealed his conviction for first-degree murder, arguing ineffective assistance of counsel and error by the trial court admitting lay witness opinion testimony. The Court of Appeals found no ineffective assistance of counsel and no prejudicial error by the trial court.
In December of 2018, defendant sold drugs to the murder victim; the victim used a fake $100 bill to purchase the drugs from defendant. Defendant soon realized he had received a fake bill, and repeatedly contacted the victim, arguing that she owed him money. Eventually defendant and a friend went to the apartments where victim resided, and after a short exchange the victim was shot; she later died of her wounds. At trial, defendant’s counsel informed the trial court that defendant planned to concede that he fired the shot that killed the victim, and that he may argue defendant was guilty of lesser included offenses. Defendant indicated that he consented to this strategy during a colloquy with the trial court. Defendant’s counsel subsequently argued that defendant was struggling with the victim over a bag of drugs and he fired a shot that was not premeditated.
The court first examined defendant’s per se ineffective assistance of counsel argument, noting that defendant consented to the strategy of admitting a shot was fired, effectively admitting to defendant’s guilt for second-degree murder, and thus could not argue ineffective assistance on this point. Examining defendant’s alternative argument that he received prejudicially ineffective assistance of counsel, the court explained that (1) defendant consented to his counsel’s strategy of self-defense, but then decided to invoke his Fifth Amendment right not to testify, sabotaging the strategy, (2) defendant’s witness offered testimony useful for raising doubts about the processing of the crime scene, and (3) defense counsel’s closing argument was coherent and attempted to negate the elements of first-degree murder.
Reviewing the trial court’s admission of lay opinion testimony that it would be easier to lure the victim with promises instead of threats, the court could find no prejudicial error. Explaining that the State did not even refer to this testimony in closing arguments, instead simply referencing this concept as a commonsense notion, the court found that defendant failed to show any reasonable possibility that the jury would have reached a different verdict.
No speedy trial violation where defendant was tried three times between 2018 and 2021, eventually convicted after third trial.
State v. Ambriz, 2022-NCCOA-711, ___ N.C. App. ___ (Nov. 1, 2022). In this Guilford County case, Defendant appealed his convictions for trafficking in methamphetamine, arguing insufficient evidence to support his convictions and denial of his right to a speedy trial. The Court of Appeals found no error.
In February of 2016, defendant was a part of a group who were involved in a drug deal with a confidential informant working with the Greensboro Police Department. The deal involved transport of a large amount of methamphetamine from Alabama to Greensboro. After observing defendant and his associates transport methamphetamine to a storage unit, police arrested defendant, and he was indicted on the trafficking charges. Defendant was tried three separate times; the first two, in April of 2018 and August of 2019, resulted in deadlocked juries. Defendant was eventually convicted after a trial in May of 2021.
The court first considered defendant’s arguments regarding sufficiency of the evidence to support his convictions, noting that the State presented substantial evidence to support defendant possessed the methamphetamine under an “acting in concert” theory. Slip Op. at 9-10. The court then applied the same evidence to the transporting element of defendant’s convictions, again finding substantial evidence in the record. Id. at 11-12. Finally, examining the conspiracy elements, the court found ample evidence of communication and cooperation with co-conspirators supporting the conviction. Id. at 14.
The procedural history of defendant’s three trials is extensive and detailed on pages 17-18 of the slip opinion; notably the case began before COVID-19 delays but was also subject to delays during 2020. The court explained that North Carolina courts follow the four-factor analysis from Barker v. Wingo, 407 U.S. 514 (1972), when performing a speedy trial analysis. Id. at 19. To determine whether a violation occurred, the court examined all of defendant’s speedy-trial motions and walked through the four Barker factors, determining that: (1) the length of the delay was sufficient to trigger a speedy-trial analysis; (2) although the choices to prosecute one of defendant’s co-conspirators, and to perform transcription of the contact between co-defendants and of the trial proceedings contributed to the delay, they did not represent the State’s negligence or willful delay; (3) the defendant asserted his right to speedy trial repeatedly; and (4) the delay was not prejudicial to defendant’s ability to present a defense as he did present any witnesses or evidence. After walking through the Barker analysis, the court concluded that the balance favored the State.
Trial court erred by entering two counts of armed robbery for a single robbery at a gas station with two employees present; admission of lay opinion on guilt was not prejudicial.
State v. Kelly, 2022-NCCOA-713, ___ N.C. App. ___ (Nov. 1, 2022). In this Pender County case, defendant appealed his convictions for armed robbery, arguing the trial court erred by (1) admitting testimony by a detective identifying defendant as the perpetrator, (2) denying defendant’s motion to dismiss, and (3) entering judgment and commitment on two counts of armed robbery. The Court of Appeals found no error with (1) and (2), but did find error under (3), remanding for resentencing.
In October of 2019, a man in a sweatshirt, dark athletic pants, and gray sneakers robbed a gas station in Rocky Point, brandishing a firearm and taking money from the cash registers. After law enforcement responded and reviewed surveillance footage, an officer spotted defendant walking along a road five miles north of the gas station, and detained defendant for questioning by the detective on duty. A subsequent search found $736 in cash in defendant’s clothes. Defendant was indicted for robbing the gas station, and at trial, the State admitted surveillance video and called the detective who questioned defendant to testify. During his testimony, the detective said that defendant fit the description of the suspect, and then testified over defendant’s objection that “defendant is the person that robbed the Phoenix Travel Mart.” Slip Op. at 4.
Reviewing (1) defendant’s objection to the detective’s testimony, the court first noted that defendant did not properly object by requesting to strike an unresponsive answer. However, the court performed analysis under the plain error standard, concluding that the additional information supporting that defendant met the description of the suspect, and testimony from the arresting officer also supporting that defendant fit the description, suggested the jury would not have reached a different verdict but for the objectionable testimony from the detective. This evidence also supported (2) the denial of defendant’s motion to dismiss, as it represented substantial evidence linking defendant to the crime.
When reviewing (3) the entry of judgment and commitment, the Court of Appeals found error with the entry of two counts for what should have been a single count of armed robbery. The court applied the reasoning from State v. Potter, 285 N.C. 238 (1974), explaining that although two employees were involved in the robbery, defendant could only be said to have taken property from one person, the employer. Slip Op. at 12-13. The court remanded with instructions to arrest judgment on one of the convictions and resentence the defendant accordingly.
Seizure of marijuana was admissible when police on foot approached vehicle parked in high crime area, identified marijuana by plain view on defendant’s lap; seizure of marijuana was supported by additional evidence besides smell and appearance, suggesting it was not hemp.
State v. Tabb, 2022-NCCOA-717, ___ N.C. App. ___ (Nov. 1, 2022). In this Forsyth County case, the Court of Appeals considered for a second time defendant’s appeal of his guilty pleas to possession of cocaine, marijuana, and marijuana paraphernalia based upon the trial court’s denial of his motion to suppress. The Court of Appeals affirmed the denial of defendant’s motion to suppress.
This matter first came before the court in State v. Tabb, 2021-NCCOA-34, 276 N.C. App. 52 (2021) (unpublished), and the facts taken from that decision are presented in pages 2-4 of the slip opinion. The court remanded to the trial court with instructions to consider the sequence of events leading to defendant’s arrest and determine if a show of force and seizure of the driver occurred, where one arresting officer approached the driver’s side of the vehicle while two other officers approached the passenger’s side (where defendant was seated) and noticed marijuana and cash on defendant’s lap. Slip Op. at 4-5. The trial court concluded that the actions of the officers occurred almost simultaneously, and that neither defendant nor the driver would have believed they were seized until defendant was removed from the vehicle. As a result, the trial court concluded the search of defendant was constitutional and again denied his motion to suppress.
Considering the current matter, the Court of Appeals first noted that defendant failed to raise the argument that the search violated Article 1, § 20 of the North Carolina Constitution in front of the trial court, dismissing this portion of his argument. The court then considered the argument that the officer who approached the driver’s side of the vehicle effected a seizure without proper suspicion, violating the Fourth Amendment. Exploring the applicable precedent, the court explained “[p]olice officers on foot may approach a stationary vehicle with its engine running and its lights turned on in a known area for crimes after midnight to determine if the occupants ‘may need help or mischief might be afoot’ or to seek the identity of the occupants therein or observe any items in plain view without violating our Fourth Amendment jurisprudence.” Id. at 10, citing Brendlin v. California, 551 U.S. 249 (2007), Terry v. Ohio, 392 U.S. 1 (1968), and State v. Turnage, 259 N.C. App. 719 (2018). The court then explained that, even if the driver was seized immediately upon the officer’s “show of force,” the plain view doctrine permitted discovery and admissibility of the marijuana and currency observed by the officers approaching defendant’s side of the vehicle. Slip Op. at 11. The “brief period” between the show of force and the officers recognizing the items on defendant’s lap did not justify granting defendant’s motion to suppress. Id.
The court then turned to defendant’s argument that the officers could not identify the unburnt marijuana as an illegal substance since industrial hemp is legal in North Carolina and is virtually indistinguishable by smell or visual identification. The court disagreed, noting that “there was more present than just the smell or visual identification . . . [t]here was the evidence of drug distribution, the currency beside the marijuana and [d]efendant’s possession of marijuana near his waistband.” Id. at 13-14. Because of the additional evidence to support reasonable suspicion, the court overruled defendant’s argument.
(1) Warrantless seizure and canine sniff of a package in transit at a FedEx facility did not implicate the defendant’s Fourth Amendment rights; (2) Assuming the defendant’s Fourth Amendment rights were implicated, he failed to preserve the challenge for appellate review; (3) Indictment for possession with intent to sell/deliver THC was not defective for failing to allege an illegal amount of THC under former hemp law; (4) Marijuana extract did not qualify as industrial hemp under former law, and there was sufficient evidence that the defendant possessed unlawful THC despite the lack of quantified chemical analysis; (5) Assuming without deciding that admission of lay opinions that untested substances were marijuana, marijuana wax, and THC was error, the defendant could not show prejudice; (6) Sufficient evidence supported the existence of a conspiracy to traffic marijuana, and the trial court properly admitted a phone call between law enforcement and the sender of the package as a statement of a co-conspirator under N.C. Evid. R. 801(d)
State v. Teague, 2022-NCCOA-600, ___ N.C. App. ___ (Nov. 1, 2022). In this Wake County case, a drug investigator was working at a local FedEx facility and noticed a package from California with the seams taped shut and with an apparently fake phone number for the recipient. The officer removed the package from the conveyor belt and searched law enforcement databases for information on the sender and the recipient. He discovered that the telephone number for the sender listed on the package was incorrect, that the telephone number for the recipient was fictitious, and that the package had been mailed from a location other than the listed shipping address. The package was placed alongside several other similar packages and was examined by a drug dog already present in the facility. Following an alert by the canine, officer obtained a search warrant for the package. Inside, officers discovered packages of around 15 pounds of suspected marijuana, along with a GPS tracker. Officers visited the address of the recipient, where they noticed the defendant in the driveway. They also noted the presence of a storage unit facility nearby and later learned the defendant rented a unit there. A man (apparently the sender) called the FedEx facility to inquire about the status of the package. An officer called him back, first verifying the intended address and recipient of the package and then identifying himself as law enforcement. The man on the phone cursed and ended the call. The next day, officers visited the storage facility near the defendant’s home with a canine unit, which alerted to a certain unit. While officers were obtaining a search warrant for the unit, the defendant arrived on scene holding a bag. Officers saw what they believed to be marijuana extract or “wax” inside the bag and placed the defendant under arrest. Once the search warrant for the storage unit was approved, officers discovered more apparent marijuana and marijuana extract inside. Search warrants for the defendant’s house were then obtained, leading to the discovery of marijuana paraphernalia and a substance used to produce marijuana extract.
The defendant was charged with conspiracy to traffic marijuana, possession with intent to sell/deliver marijuana and possession with intent to sell/deliver THC (among other related offenses). The defendant moved to suppress, arguing that the seizure of the package at the FedEx facility was unconstitutional. The trial court denied the motion, and the defendant was convicted of trafficking and other offenses at trial. On appeal, the defendant challenged the denial of his suppression motion, the denial of his motion to dismiss for insufficient evidence, the admission of lay opinions identifying the substances in the case as marijuana, marijuana wax, and THC, and the admission of the phone call between the officer and the man who called the FedEx facility inquiring about the package. The Court of Appeals affirmed.
(1) The court rejected the argument that the defendant’s Fourth Amendment rights were violated by the seizure of the package and canine sniff at the FedEx facility. “[W]e do not accept Defendant’s initial contention that the mere removal of the target package from the conveyor belt for a drug dog sniff was a ‘seizure’ implicating his Fourth Amendment rights. Neither was the drug dog sniff a ‘search. . .’” Teague Slip op. at 13. While both the sender and recipient of a mailed package have a reasonable expectation of privacy in the contents of a package, the temporary detention and investigation of the package in a manner that does not significantly delay its delivery does not amount to a Fourth Amendment seizure. Officers here had reasonable suspicion to justify a brief investigation and dog sniff of the package. From there, officers properly obtained search warrants of the package, which led to additional search warrants supported by probable cause. Thus, the acts of removing the package for investigation and subjecting it to a canine sniff did not implicate the defendant’s Fourth Amendment rights and the motion to suppress was properly denied.
(2) Assuming arguendo that the seizure and canine sniff of the package did implicate the defendant’s Fourth Amendment rights, he failed to preserve those arguments for appellate review. While the defendant filed a pretrial motion to suppress and fully litigated those issues (including objecting to the canine alert evidence at trial), he failed to object to testimony at trial about the removal of the package from the conveyor belt for additional investigation. Appellate review of that issue was therefore waived. The dog sniff on its own did not amount to a search, given it took place at the FedEx facility while the item was “still in the mail stream” and was completed within ten minutes. “…Defendant’s renewed objection at trial to the introduction of . . . the dog sniff was insufficient to resurrect any prior unpreserved Fourth Amendment argument for appellate review.” Id. at 25. The trial court also did not plainly err by denying the suppression. Because the defendant’s Fourth Amendment rights were not implicated, no error occurred, much less any plain error in the trial court’s denial of the suppression motion.
Regarding the defendant’s other challenges, the court noted the continued ambiguity surrounding the impact of hemp legalization on marijuana prosecutions, citing State v. Parker, 277 N.C. App. 531 (2021). The court opined that the now-defunct Industrial Hemp Act did not impact the State’s burden of proof in criminal proceedings “to the degree the Defendant contends,” while also acknowledging that “our appellate courts have yet to fully address the effect of industrial hemp’s legalization on . . . the various stages of a criminal investigation and prosecution for acts involving marijuana.” Teague Slip op. at 28 (citation omitted).
(3) The defendant argued that the indictment charging him with possession with intent to sell/deliver THC was fatally defective for failure to state a crime because the indictment failed to specify that the THC possessed by the defendant contained a delta-9 THC concentration of more than 0.3%. The court rejected this argument, finding that the concentration of delta-9 THC is not an element of the crime and that the then-applicable Industrial Hemp Act did not remove THC from the list of prohibited controlled substances under Chapter 90 of the North Carolina General Statues. Moreover, the defendant has the burden under G.S. 90-113.1 to prove lawful possession of a controlled substance, which is an exception to the prohibitions on controlled substances and (again) not an element of the offense. (The prohibition on possession of THC in G.S. 90-94 has since been amended to exclude all THC products containing no more than 0.3% delta-9 THC, which expressly removes delta-9 THC within the legal limit and all other hemp-derived THCs not exceeding the delta-9 THC limit from the list of prohibited controlled substances).
(4) The trial correctly denied the defendant’s motion to dismiss the charge of possession with intent to sell/deliver THC for insufficient evidence. The defendant pointed to the lack of any chemical analysis for the brown marijuana “wax” and argued that the State failed to present proof that the substance was an illegal controlled substance given the existence of legal hemp. The court found that the brown material did not qualify as industrial hemp under the then-existing definition but met the definition of THC in place at the time. “The brown material was neither a part nor a variety of the plant Cannabis sativa.” Teague Slip op. at 34 (emphasis in original). Moreover, even if the material did qualify as a part of the plant, “Defendant makes no argument that he was a ‘grower licensed by the Commission’, or that the brown material was cultivated by such a licensed grower, as the statutory definition of ‘industrial hemp’ requires.” Id. at 35. In the light most favorable to the State, there was therefore sufficient evidence that the brown material was THC, and the motion was properly denied. (Industrial hemp is no longer defined under state law and has been replaced by new state definitions for marijuana, hemp and hemp products, as discussed here. Under the new definitions, hemp is defined to include all extracts and derivatives of hemp, and hemp products are defined as anything made from hemp. There is no longer any requirement that hemp be grown by a licensed grower.)
(5) The defendant argued that the legalization of hemp in the state undercut the justifications in the decisions allowing the lay identification of marijuana without the need for a chemical analysis. See, e.g., State v. Mitchell, 224 N.C. App. 171, 179 (2013). He complained on appeal that the admission of lay opinion testimony identifying “marijuana wax,” “THC,” and marijuana as such without a valid chemical analysis violated N.C. Evid R. 702 and was reversible error. The Court of Appeals disagreed. Assuming without deciding that the trial court erred in admitting this testimony, the defendant could not show prejudice. The flower marijuana in the package was properly lab-tested and found to contain illegal levels of delta-9 THC. While the brown wax material was tested only for the presence of delta-9 THC and not for specific levels of THC, the material again did not qualify as industrial hemp under the then-existing definition. While other flower material found in the storage shed was likewise only tested for the presence of THC (and not for quantified THC levels), there was overwhelming evidence of the defendant’s guilt. Given the marijuana that was properly tested, along with the discovery of other drugs and drug paraphernalia at the defendant’s house, storage unit, and in the bag that the defendant was carrying when he encountered officers at the storage unit (among other evidence), there was no reasonable likelihood of a different result at trial had this identification testimony been excluded.
(6) There was also sufficient evidence supporting the defendant’s conviction for conspiring to traffic marijuana by transportation, and the trial court did not err in admitting a recording of the phone call between the apparent sender of the package and the law enforcement officer. The shipping label accurately named the defendant and his address, and the sender acknowledged that information on the call with the officer. The sender was also upset upon learning that the package had been intercepted by law enforcement. Additionally, the drugs in the package were worth more than $150,00.00 and included a GPS tracking device. This was sufficient to show the defendant and co-conspirator’s “mutual concern for and interest in” the package, thus providing sufficient evidence of the conspiracy. Id. at 44. The phone call between the sender of the package and law enforcement was properly admitted under the hearsay exception for statements of co-conspirators under N.C. Evid. R. 801(d)(E). The court rejected the defendant’s argument that the statement at issue here did not qualify under that exception because it was not a statement made between the conspirators. The court observed:
[W]hen the State has introduced prima facie evidence of a conspiracy, the acts and declarations of each party to it in furtherance of its objectives are admissible against the other members regardless of their presence or absence at the time the acts and declarations were done or uttered. Teague Slip op. at 46 (citation omitted) (emphasis in original).
There was therefore sufficient evidence of the conspiracy conviction and no error in admission of the phone call between law enforcement and the co-conspirator.