State v. Ruffin, COA24-276, ___ N.C. App. ___ (Mar. 5, 2025)

In this Martin County case, Defendant appealed his convictions for trafficking in heroin offenses, sale of marijuana, and delivery of marijuana, arguing several errors related to the trial court's admission of testimony regarding the identification of marijuana and errors in sentencing. The Court of Appeals found no error.

In 2021, a confidential informant (CI) contacted defendant, seeking to buy seven grams of fentanyl "and some marijuana." Slip Op. at 3. Defendant quoted prices for both, and the CI paid defendant and received two bags of the substances. Defendant was arrested shortly after leaving the scene. At trial, the detective who worked with the CI testified based on his training and experience that the plant material appeared to be marijuana. A forensic scientist from the state crime lab also testified about the plant material, concluding it was "plant material belonging to the genus cannabis containing tetrahydrocannabinol [THC]." Id. at 4. However, she also testified that the lab lacked the ability to distinguish between marijuana and hemp, and that it was possible the plant material was hemp. Defendant requested and the trial court provided a jury instruction stating that the term marijuana does not include hemp or hemp products. Defendant was subsequently convicted, and received consecutive sentences of 70 to 93 months for his offenses.

Taking up defendant’s arguments, the Court of Appeals first addressed whether it was error to allow the detective to testify that the plant material was marijuana as lay opinion testimony. Because defendant did not object to the testimony at trial, the Court reviewed for plain error. Referencing previous case law, the court noted that a police officer experienced in the identification of marijuana may testify to his visual identification of evidence as marijuana. Defendant pointed to State v. Ward, 364 N.C. 133 (2010), to argue that an officer’s visual identification is no longer reliable since the legalization of hemp. The Court distinguished Ward, noting “the standard for lay opinion testimony under Rule 701— including [the detective’s] testimony—is unchanged in light of Ward.” Slip Op. at 9. Subsequent caselaw also supported that “law enforcement officers may still offer lay opinion testimony identifying a substance as marijuana.” Id. As a result, the court found no error in admitting the testimony.

The court applied the same plain error analysis to the forensic expert’s testimony as defendant did not object to her testimony either. Because she was testifying as an expert under Rule 702, the court looked to State v. Abrams, 248 N.C. App. 639 (2016), to determine if the expert followed reliable procedures for identifying the substance as marijuana. The court was satisfied that the expert followed acceptable procedures as established by previous caselaw, and found the testimony reliable under Rule 702, meaning it was not error to admit her testimony.

Defendant also argued that it was error to deny his motion to dismiss because the State did not provide adequate evidence the substance was marijuana not hemp. The court disagreed, pointing to the testimony of the detective and forensic expert discussed above, as “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.” Id. at 15.

Although the trial court used the appropriate pattern jury instruction, along with an alteration specifically requested by defendant, defendant argued it was error to omit instruction 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.” Id. at 18. Applying the plain error standard again, the court found no error, as the court held that the instruction given was an accurate statement of the law.

Finally, the court reached the sentencing issues, where defendant argued he was improperly sentenced for selling and delivering marijuana in the same transaction. The court concluded that any error if it existed was harmless, as “the trial court consolidated those convictions to run concurrently with the longer sentence for Trafficking in a Mixture Containing Heroin by Transportation.” Id. at 20. Defendant also argued that the prosecutor offered improper information that influenced sentencing considerations, as the prosecutor referenced a victim who died and a pending death by distribution charge against defendant. However, “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,” meaning there was no evidence that defendant received a sentence based on improper information. Id. at 25.