State v. Hammond, COA22-715, ___ N.C. App. ___ (Mar. 7, 2023)

In this Henderson County case, defendant appealed his conviction for trafficking opium or heroin by possession, arguing error in the denial of his requested instruction that the jury must find he knew what he possessed was fentanyl. The Court of Appeals found no error. 

In March of 2018 the Henderson County Sheriff’s Office executed a warrant for defendant’s arrest at a home in Fletcher. During the arrest, an officer smelled marijuana and heard a toilet running in the house, leading the police to obtain a search warrant for the entire home. During this search, officers found a plastic bag with white powder inside, as well as some white powder caked around the rim of a toilet. Officers performed a field test on the substance which came back positive for cocaine, but when lab tested, the substance turned out to be fentanyl. At trial, one of the officers testified that “everyone” at the scene believed the substance they found was cocaine on the day of the search. Defendant chose not to testify during the trial, and had previously refused to give a statement when arrested. 

Turning to defendant’s arguments, the court found that no evidence in the record supported defendant’s contention that he lacked guilty knowledge the substance was fentanyl. Defendant pointed to the officer’s testimony that “everyone” believed the substance was cocaine, but “[r]ead in context, it is apparent that [the officer] was referring to the knowledge of the officers who initially arrested [defendant and another suspect] for possession of cocaine, as the excerpted testimony immediately follows a lengthy discussion of their rationale for doing so.” Slip Op. at 8. Because defendant did not testify and no other evidence supported his contention that he lacked knowledge, his circumstances differed from other cases where a defendant was entitled to a guilty knowledge instruction. The court explained that evidence of a crime lacking specific intent, like trafficking by possession, creates a presumption that defendant has the required guilty knowledge; unless other evidence in the record calls this presumption into question, a jury does not have to be instructed regarding guilty knowledge. Id. at 9.