State v. Wanda J. Crumpton

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Wanda Jane Crumpton, Appellant.

Appellate Case No. 2019-001246

Appeal From Pickens County
Robin B. Stilwell, Circuit Court Judge

Opinion No. 6075
Heard June 7, 2022 – Filed July 31, 2024

REVERSED

Appellate Defender Joanna Katherine Delany, of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General Mark R. Farthing,
both of Columbia, and Solicitor William Walter Wilkins,
III, of Greenville, all for Respondent.

MCDONALD, J.: In this case, we are asked to consider whether an expert witness
may identify a substance as marijuana after admittedly using a testing protocol the
South Carolina Law Enforcement Division (SLED) deemed unreliable several
months before the defendant's trial. The circuit court admitted such testimony in
Wanda Crumpton's trial, and she was convicted of possession of marijuana with
intent to distribute and distribution of marijuana within close proximity of a school
or park. Crumpton challenges her convictions, arguing the circuit court erred in (1)
allowing the witness to identify the substance as marijuana; (2) ignoring Rule 702's
gatekeeping requirements; and (3) admitting into evidence the expert's report. We
reverse the convictions.

Facts and Procedural History

In 2017, the Easley Police Department (EPD) began to surveil Crumpton's
neighborhood after receiving citizen complaints about heavy traffic in the area.
During its March 20 surveillance, EPD observed people, including Kerek Harris—
who was already the subject of a separate EPD investigation—visiting Crumpton.

The following day, EPD narcotics officers executed a search warrant at Harris's
home. Harris cooperated with the search—he told officers the location of his cell
phone, cash, and marijuana; he also completed a consent to search form to allow
law enforcement to access his phone. Officers recovered approximately five
pounds of marijuana in five separate gallon-sized bags and almost six thousand
dollars in cash from the search of Harris's home.

Based on information Harris provided, the officers next obtained a warrant to
search Crumpton's home for drugs. EPD Narcotics Officer Jonathan Hamby
testified that when officers arrived to execute the warrant, Crumpton was sitting in
her recliner, and she allowed them in to search. As they explained the search
warrant to her, Crumpton asked if she could just show the officers "where the
drugs were." She then directed them to a kitchen cabinet and a small bag
containing a green leafy substance. Officer Hamby also asked Crumpton "about
any scales she would have to weigh the marijuana out with. She admitted she had
scales and pulled out a cabinet drawer on the bottom where her scales were
located." The officers seized the bag of plant material, $534 in cash, a cell phone,
food storage baggies, and the kitchen scales. They also retrieved a partially
smoked joint from Crumpton's recliner.

A Pickens County grand jury indicted Crumpton for possession of marijuana with
intent to distribute and a proximity charge. She was convicted on both counts, and
the circuit court sentenced her to forty-two months, concurrent, on each charge.1

Standard of Review

1
Crumpton had already served her sentences at the time of oral argument.
Appellate courts review trial court rulings on the admissibility of evidence
pursuant to an abuse of discretion standard. State v. Herrera, 425 S.C. 558, 562,
823 S.E.2d 923, 924 (2019). A circuit court's "decision to admit expert testimony
will not be reversed on appeal absent an abuse of discretion." Id. (quoting State v.
Price, 368 S.C. 494, 498, 629 S.E.2d 363, 365 (2006)). "An abuse of discretion
occurs when the conclusions of the circuit court are either controlled by an error of
law or are based on unsupported factual conclusions." State v. Chavis, 412 S.C.
101, 106, 771 S.E.2d 336, 338 (2015).

Analysis

I. Expert testimony

The State offered retired EPD Sergeant Robert Brian Cowan as its expert in
marijuana analysis. Cowan began working in law enforcement in 1994 and
worked for EPD for twenty-five years; he was an evidence technician for eighteen.
In January 2002, Cowan completed SLED's Marijuana Analyst Certification
program and became a certified marijuana analyst. However, on December 14,
2018—seven months before Crumpton's trial—SLED revoked all certifications
awarded pursuant to this program. SLED also sent a notice advising law
enforcement agencies and certified individuals to cease using the program's testing
procedures because the tests could not differentiate between illegal marijuana and
industrial hemp, which may legally contain up to three-tenths of a percent of THC,
the main psychoactive ingredient in marijuana. The SLED notice stated, in
pertinent part:

Effective immediately, the SLED Forensic Services
Laboratory is discontinuing the Marijuana Analyst
Certification/Recertification and Testing programs.
Subsequently, all law enforcement officers currently
certified under the SLED Marijuana Analyst Program
(Program) should discontinue testing plant material. Be
advised that SLED has researched this issue extensively
and has determined that due to the creation of the
Industrial Hemp Program, the Marijuana Testing
procedures covered in this Program (microscopic
analysis and Duquenois-Levine chemical spot test)
cannot differentiate between Industrial Hemp and
Marijuana. In accordance with S.C. Code Ann. §
46-55-10, Industrial Hemp is defined as Cannabis that
contains not more than 0.3 percent of delta-9-tetra-
hydrocannabinol (THC) on a dry weight basis, and S.C.
Code Ann. § 46-55-50 states that Industrial Hemp "is
excluded from the definition of marijuana in S.C. Code
Ann. § 46-53-110[."] However, all Cannabis plant
material that contains greater than 0.3 percent of THC on
a dry weight basis is still considered Marijuana and
punishable accordingly. SLED's decision to discontinue
the Program should not in any way be considered a
change or alteration to the way that probable cause is
determined in the State of South Carolina for any and all
drug charges, including Marijuana.

However, in terms of confirmatory testing, in order to
accurately analyze plant material and verify the THC
level to distinguish between Industrial Hemp and
Marijuana, cases will need to be submitted to the SLED
Drug Analysis laboratory for quantitative analysis of
THC.

Crumpton filed separate written objections to the admission of Sergeant Cowan's
"Marijuana Analysis" and his qualification as a "Marijuana Expert." In the written
objection to Cowan's analysis, Crumpton argued,

An actual test of the substance is required to make sure
the alleged substance is in fact contraband[.] Rule 6,
SCRCrimP.[2] The Rules of Criminal Procedure set forth

2
Rule 6 addresses chemical analyses and chain of custody in drug cases. It
provides, in pertinent part, that for the purpose of establishing the physical
evidence of a controlled substance or other substance regulated by Title 44,
Chapter 53,

a report signed by the chemist or analyst who performed
the test or tests required concerning its nature shall be
evidence that the material delivered to him or her was
properly tested under procedures approved by the State
Law Enforcement Division (SLED), that those
procedures are legally reliable and that the material is or
contains the substance or substances stated.
that requirement thereby making it an essential part of the
due process of law in every drug case. Stated concisely,
Rule 6 requires three elements: 1) A proper test, 2) A
legally reliable test, and 3) An opinion as to the identity
of the substance.

Pretrial, the circuit court addressed Crumpton's objections to the validity of the
search warrant and the admissibility of Harris's testimony and text messages
regarding Crumpton's prior purchases from him. Crumpton challenged the
evidence of any such prior purchases, arguing it was inadmissible under Rules 403
and 404(b), SCRE.3 Although the circuit court found Harris's testimony was
admissible, the court declined to admit his text messages. The circuit court further
found probable cause existed to support the magistrate's issuance of the search
warrant. The circuit court did not, however, address Crumpton's pretrial challenge
to the expert's testimony, presumably because her trial counsel stated, "And when
it comes up, we're going to be objecting to the expert."

After two law enforcement witnesses and Harris testified, the State called Sergeant
Cowan. As Cowan began to testify about the marijuana testing process he used,
Crumpton objected, stating, "Judge, I'm going to—I'd like to object to his—I'm not
sure how to put it. May we approach, please?" The circuit court responded:

THE COURT: Yeah, I think I know what you're saying.
You want to object to his qualifications as an expert; is
that correct?

MR. KING: I do, and I'm not sure we need to get into
the testing procedure until we get over that hurdle.

THE COURT: Okay. I'm going to allow you to voir dire
on the record in open court. One of the tests [is] not only
whether he is qualified as an expert, but also that [the]
methodology is an accepted and recognized scientific
method. So I think all of this goes to whether that
evidence is admissible or not. I suspect that you're going

3
Rule 403 addresses the exclusion of relevant evidence on grounds of prejudice,
confusion, or waste of time; Rule 404(b) addresses evidence of other crimes or bad
acts.
to want to voir dire him with respect to methodology as
well.

MR. KING: That's correct, Your Honor. I apologize. I
just want to get a ruling on where we're going.

THE COURT: I got you. I got you. Okay, you can
proceed.

With the jury still present, the State asked Cowan how he tested for marijuana, and
he explained his testing methods, noting he had "analyzed probably roughly 1600
cases" from 2010 until 2018. The State then moved to qualify Cowan an expert in
"chemical analysis for marijuana." The circuit court gave a brief instruction on
expert witnesses and told the jury that the purpose of giving the defense the
opportunity to question such a witness is "to determine whether, in fact, they are
qualified, and whether the methodology is appropriate."

The defense then questioned Cowan about SLED's termination of the marijuana
handling, certification, and testing program. Cowan discussed the December 2018
SLED announcement and explained "they are saying they cannot differentiate
between industrial hemp and marijuana." Cowan admitted the test he performed
could not quantify a substance's THC level and "it was just positive or negative."

Defense counsel again objected to Cowan being qualified as an expert and asked to
make the SLED notice a court's exhibit. He continued:

MR. KING: Would you like to hear my argument now?

THE COURT: Yes.

MR. KING: Or do that outside the presence of the jury?

THE COURT: If we're talking about the qualifications
of this expert witness, I'm happy to hear from you right
now.

At no point during this discussion was the jury excused, and the arguments
conducted in the jury's presence continue for four pages in the trial transcript.
Crumpton argued Cowan's testing method was not reliable under Rule 702, and the
State responded that Cowan tested the substance using the SLED protocol in effect
at the time of the testing. The State further argued that when Crumpton's substance
was tested in 2017, SLED's procedures were the standard for testing substances
believed to contain marijuana, noting SLED had not instructed law enforcement
agencies regarding the reliability of prior test results. The State continued, rather
inaccurately:

In December of 2018 is when they asked law
enforcement to stop performing this test. It doesn't say
anything about any of the tests previously being
unreliable or that they were to be thrown out or that they
meet the minimum threshold, Your Honor. At this point
in time, it was still marijuana . . . . Yes, they are no
longer using that test, but it was still reliable at the time
of the test, Your Honor.

In the presence of the jury and without further inquiry or analysis, the circuit court
qualified Cowan as an expert and declared the reliability of the testing method was
a jury question. In overruling Crumpton's objection, the circuit court stated,

When I charge the jury as to the law, the question is
going to be marijuana. Hemp is not part of the equation.
Okay? And, the State, it has to be proven beyond a
reasonable doubt that she possessed marijuana with intent
to distribute the same. Okay?

So, with respect to his qualification as an expert witness,
I will allow him to testify as an expert witness.

Now, the reliability of the testing procedure is a matter to
be determined by the jury. They will weigh the
credibility of the witness's testimony, and determine, in
fact, whether it should be relied upon or not in their
capacity as the finders of fact.

So, Ladies and Gentlemen, this gentleman is being
offered as an expert witness . . . .

The circuit court then completed its instruction as to the role of an expert witness,
and Cowan identified the marijuana analysis form containing his test result.
Although Cowan found the seized substance contained THC, he could not say
whether the substance was actually marijuana as opposed to industrial hemp. Nor
could he determine whether the THC level of the substance was over 0.3% because
the now-defunct procedure used could detect only the existence of THC, not a
THC level. Despite this, Cowan testified he found nineteen grams, or 0.66 ounces,
of marijuana.

Crumpton argues Cowan's testimony identifying the substance as marijuana was
inadmissible because SLED had previously deemed unreliable the testing protocol
Cowan used to identify it. 4 More fundamentally, Crumpton contends the circuit
court erred in finding Cowan's reliability was an issue for the jury because Rule
702, SCRE, requires the circuit court to conduct this gatekeeping function outside
the presence of the jury before permitting the offered expert to testify. See e.g.,
State v. Tapp, 398 S.C. 376, 388, 728 S.E.2d 468, 474 (2012) ("The familiar
evidentiary mantra that a challenge to evidence goes to 'weight, not admissibility'
may be invoked only after the trial judge has vetted the matters of qualification and
reliability and admitted the evidence." (quoting State v. White, 382 S.C. 265, 274,
676 S.E.2d 684, 689 (2009))).

"'Scientific evidence is admissible under Rule 702, SCRE,'[5] when '(1) the
evidence will assist the trier of fact; (2) the expert witness is qualified; (3) the
underlying science is reliable . . . ; and (4) the probative value of the evidence
outweighs its prejudicial effect.'" State v. Mealor, 425 S.C. 625, 647, 825 S.E.2d
53, 65 (Ct. App. 2019) (quoting State v. Jones, 343 S.C. 562, 572, 541 S.E.2d 813,
818 (2001)). "All expert testimony must satisfy the Rule 702 criteria, and that
includes the trial court's gatekeeping function in ensuring the proposed expert
testimony meets a reliability threshold for the jury's ultimate consideration."
White, 382 S.C. at 270, 676 S.E.2d at 686. "Reliability is a central feature of Rule
702 admissibility, and our jurisprudence is in complete accord." Id.

4
Crumpton initially argued the circuit court erred in finding Sergeant Cowan was
sufficiently qualified and in failing to properly analyze reliability; however, at oral
argument, she acknowledged Cowan's qualifications and focused on the circuit
court's failure to vet reliability.
5
Rule 702 provides that where "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."
Rule 702, SCRE.
When Cowan tested this substance in 2017, section 46-55-50 already excluded
industrial hemp from section 44-53-110's definition of marijuana. See Act No.
216, 2014 S.C. Acts 2317–20 (legalizing the growing of industrial hemp and
excluding it from the definition of marijuana); Act No. 37, 2017 S.C. Acts 149–54
(amending industrial hemp statutes and renumbering the code section excluding
industrial hemp from the definition of marijuana). In 2019, the General Assembly
amended Chapter 55 of Title 46 upon passing "The Hemp Farming Act" to address
industrial hemp licenses and Cannabidiol (CBD). Section 46-55-10(8) was also
amended; it now states:

'Hemp' or 'industrial hemp' means the plant Cannabis
sativa L. and any part of that plant, including the
nonsterilized seeds thereof and all derivatives, extracts,
cannabinoids, isomers, acids, salts, and salts of isomers,
whether growing or not, with the federally defined THC
level for hemp. Hemp shall be considered an agricultural
commodity.

"'Federally defined THC level for hemp' means a delta-9 THC concentration of not
more than 0.3 percent on a dry weight basis, or the THC concentration for hemp
defined in 7 U.S.C. SECTION 5940, whichever is greater." S.C. Code Ann. §
46-55-10(6) (Supp. 2023).

Crumpton properly emphasizes that the qualifications of a proposed expert and the
reliability of the expert's methods are distinct requirements for admissibility. See
Tapp, 398 S.C. at 388, 728 S.E.2d at 474–75 ("To be clear, the reliability of a
witness's testimony is not a pre-requisite to determining whether or not the witness
is an expert. The expertise, reliability, and the ability of the testimony to assist the
trier of fact are all threshold determinations to be made prior to the admission of
expert testimony, and generally, a witness's expert status will be determined prior
to determining the reliability of the testimony."). Cowan began his law
enforcement career in 1994, he worked for EPD for twenty-five years, and he was
an evidence technician for eighteen. He was previously certified as a marijuana
analyst by SLED (before the program was revoked), and from 2010—when he
began keeping track—through 2019, he analyzed approximately 1600 samples.
Therefore, we find the circuit court acted within its discretion in finding Sergeant
Cowan had the qualifications necessary to testify as an expert.
But the circuit court clearly erred in admitting Cowan's testimony because his
analysis was based on a testing method SLED itself had deemed unreliable some
seven months before Crumpton's trial. And, in addition to conducting the
reliability arguments in the jury's presence, the circuit court erroneously declared
the initial reliability determination was an issue for the jury. Our appellate courts
have long cautioned that the reliability of an expert's testimony is a threshold
gatekeeping matter for the court. See id. at 388, 728 S.E.2d at 474 ("The familiar
evidentiary mantra that a challenge to evidence goes to 'weight, not admissibility'
may be invoked only after the trial judge has vetted the matters of qualification and
reliability and admitted the evidence." (quoting White, 382 S.C. at 274, 676 S.E.2d
at 689)). As declared in SLED's notice and by Cowan's own admission, the testing
method used here could not differentiate between legal industrial hemp and illegal
marijuana. The fact that this methodology was acceptable in the past is irrelevant.

II. Harmless Error

The State next asserts any error by the circuit court in admitting Cowan's testimony
was harmless. We disagree.

"Generally, appellate courts will not set aside convictions due to insubstantial
errors not affecting the result." State v. Pagan, 369 S.C. 201, 212, 631 S.E.2d 262,
267 (2006). "The harmless error rule generally provides that an error is harmless
beyond a reasonable doubt if it did not contribute to the verdict obtained." State v.
Collins, 409 S.C. 524, 537, 763 S.E.2d 22, 29 (2014). "As part of our harmless
error analysis, we review 'the materiality and prejudicial character of the error' in
the context of the entire trial." State v. Phillips, 430 S.C. 319, 342, 844 S.E.2d
651, 663 (2020) (quoting State v. Byers, 392 S.C. 438, 447-48, 710 S.E.2d 55, 60
(2011)).

Harris testified he sold marijuana, typically two ounces, to Crumpton eleven
different times between March 11 and 21, 2017. Cowan subsequently identified
the seized substance, found it weighed nineteen grams (0.66 ounces), and
described in detail the obsolete testing procedure he used to identify the plant
material as marijuana and determine its weight.

Sergeant Cowan's testimony about the admittedly unreliable testing method was
undoubtedly problematic, but we also cannot ignore the effect the arguments
addressing Sergeant Cowan's qualifications and the matter of reliability may have
had on the jury. These arguments should have been made on the record, outside of
the jury's presence, before the circuit court qualified Sergeant Cowan as an expert.
And, certainly, the jury should have been removed before any threshold question
of reliability was discussed. The circuit court's reference to "the familiar
evidentiary mantra" regarding the weight of such testimony and its declaration that
"[h]emp is not part of the equation" further compounded this prejudice.

Notably, although law enforcement seized scales and baggies and a partially
smoked joint from Crumpton's home, Detective Hamby admitted officers
attempted, but were unable to execute, a controlled buy from her, and no witness
testified they purchased (or otherwise obtained) drugs from Crumpton. Thus, the
identification of the substance seized from her trailer was critical to her conviction.

"Improper 'expert' evidence which goes to the heart of the case is not harmless."
Tapp, 398 S.C. at 393, 728 S.E.2d at 477 (Pleicones, J., dissenting). Similarly, a
police "officer's improper opinion which goes to the heart of the case is not
harmless." State v. Ellis, 345 S.C. 175, 178, 547 S.E.2d 490, 491 (2001). Sergeant
Cowan provided the only scientific testimony identifying the seized substance as
marijuana, and he did so after the circuit court conducted the reliability arguments
in the presence of the jury. As our supreme court has recognized, "although an
expert's testimony theoretically is to be given no more weight by a jury than any
other witness, it is an inescapable fact that jurors can have a tendency to attach
more significance to the testimony of experts." State v. Kromah, 401 S.C. 340,
357, 737 S.E.2d 490, 499 (2013); see also State v. Whitner, 399 S.C. 547, 559, 732
S.E.2d 861, 867 (2012) (referencing vouching by a forensic interviewer as
"improperly imbued with the imprimatur of an expert witness").

The State's other evidence included testimony from Harris and from the police
officers who admittedly were unable to complete a successful controlled buy from
Crumpton. 6 Still, the officers also testified Crumpton voluntarily showed them

6
Harris was undoubtedly the bigger fish—he admitted he repeatedly sold
Crumpton marijuana in relatively small amounts in the days leading up to her
arrest. In addition to the five gallon-sized bags of marijuana and nearly six
thousand dollars in cash seized from his home, officers found photographs of a
firearm on Harris's cell phone. Harris admitted he owned the firearm despite his
status as a convicted felon. He also testified that due to the seizure of the five
pounds "and some ounces" of marijuana, he was charged with four counts of
second offense possession with intent to distribute. While each of those four
counts carried a potential ten-year sentence, Harris was sentenced to probation and
ordered to attend a drug class.
where she kept "the drugs" when EPD arrived to search her home. 7 Nevertheless,
because we cannot say beyond a reasonable doubt that the errors here did not
contribute to the verdicts, the errors cannot be harmless.
Conclusion

Based on the foregoing, Crumpton's convictions are reversed.

REVERSED.

THOMAS and HEWITT, JJ., concur.

7
The State asserts Crumpton's own admission to the circuit court that she
possessed marijuana further supports a finding of harmless error. But Crumpton's
admission occurred pretrial, and she merely noted she "smoked it"—she never
admitted she sold drugs or provided marijuana to others. The State further argues
defense counsel's opening statements referencing Crumpton's "personal use,"
admitting "she had a small amount of marijuana, less than an ounce," and asking
the jury to "look for the blunt" officers found in her easy chair mandate a finding of
harmless error. We disagree. Such statements by Crumpton's attorney certainly
may have mitigated the prejudice, but we cannot say beyond a reasonable doubt
that the verdicts here were not influenced by the circuit court's decisions to forego
a proper gatekeeping analysis, conduct the Rule 702 arguments in the jury's
presence, and admit Cowan's testimony and analysis report.