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North Carolina v. Agee4/18/1989
cerning the first trial other than the verdict sheet and scattered references in the transcript of the second trial. However, it appears from the oral argument on defendant's motion in limine quoted earlier that the district court did not question testimony that the arresting officer found a bag of some substance on defendant. Absent laboratory analysis of that substance, the district court was simply not convinced beyond a reasonable doubt that the substance found was in fact marijuana.
Thus, viewing the circumstances of the district court proceeding with the "realism and rationality" required under Ashe, it appears the district court judge acquitted defendant because the State failed to prove beyond a reasonable doubt that the substance possessed by defendant was marijuana: the only ultimate fact issue of preclusive effect arising from defendant's earlier acquittal is thus the identification of the substance as marijuana. At defendant's subsequent trial for LSD possession, the State introduced the arresting officer's testimony that he removed a plastic bag of "green vegetable matter" from defendant's person and that the substance was marijuana in his opinion. We conclude defendant has established the first requirement of double jeopardy collateral estoppel that the issue whether the substance he possessed was marijuana was decided in his favor by the district court judge.
2. Necessity of Issue of Defendant's Marijuana Possession to Second Prosecution
Given the elements of felonious possession of LSD, it was certainly not "absolutely necessary" that the second jury find defendant possessed marijuana in order to convict him of felonious possession of LSD. The State offered the evidence of defendant's marijuana possession, and the court allowed it, for the purpose of establishing the "chain of circumstances" surrounding the alleged discovery of defendant's possession of LSD. The relevance of "chain of circumstances" evidence and similar evidence was stated in State v. Jenerette, 281 N.C. 81, 89, 187 S.E.2d 735, 740 (1972):
t is equally well settled that all facts, relevant to the proof of the defendant's having committed the offense with which he is charged, may be shown by evidence, otherwise competent, even though that evidence necessarily indicates the commission by him of another criminal offense. . . . Thus, such evidence of other offenses is competent to . . . make out the res gestae, or to exhibit a chain of circumstances in respect of the matter on trial, when such crimes are so connected with the offense charged as to throw light upon one or more of these questions.
(quoting State v. Atkinson, 275 N.C. 288, 312-13, 167 S.E.2d 241, 256 (1969)) (emphasis added); accord State v. Shane, 304 N.C. 643, 654, 285 S.E.2d 813 (1982), cert. denied, 465 U.S. 1104, 104 S. Ct. 1604 (1983) ("other crimes" evidence relevant if bears upon "connected crimes"); State v. McMillan, 59 N.C. App. 396, 401, 297 S.E.2d 164, 167 (1982) (permitting use of "chain of circumstances" evidence); see generally 1 H. Brandis, Jr., Brandis on North Carolina Evidence Sec. 92 at 352 n.19 (1982 & 1986 Cum. Supp.) (collecting cases permitting "other crimes" evidence to prove "chain of events" or res gestae). The adoption of Rule 404(b) of the North Carolina Rules of Evidence has not changed this result. N.C.G.S. Sec. 8C-1, Rule 404(b) (1986) comment ("Subdivision (b) is consistent with North Carolina practice"); 1 H. Brandis, Sec. 92
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