State v. Miranda

NO. COA13-1374

NORTH CAROLINA COURT OF APPEALS

Filed: 19 August 2014

STATE OF NORTH CAROLINA

Johnston County

v.

No. 12 CRS 54432

DANIEL MIRANDA

Appeal by defendant from judgment entered 2 August 2013 by

Judge Thomas H. Lock in Johnston County Superior Court. Heard

in the Court of Appeals 19 March 2014.

Attorney General Roy Cooper, by Special Deputy Attorney

General Melody R. Hairston, for the State.

N.C. Prisoner Legal Services, by Mary E. McNeill, for

Defendant.

ERVIN, Judge.

Defendant Daniel Miranda appeals from a judgment entered

based upon his convictions for trafficking in between 28 and 200

grams of cocaine by manufacturing and felonious possession of

cocaine. On appeal, Defendant argues that the trafficking in

cocaine by manufacturing indictment that had been returned

against him was fatally defective, that the trial court

committed plain error by failing to instruct the jury concerning

the issue of his guilt of the lesser included offense of

manufacturing cocaine, that the trial court committed plain

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error by failing to instruct the jury that a conviction for

trafficking in cocaine by manufacturing based upon compounding

required a finding that Defendant intended to distribute the

substance in question, and that the record did not contain

sufficient evidence to support his conviction for trafficking in

cocaine by manufacturing. After careful consideration of

Defendant’s challenges to the trial court’s judgment in light of

the record and the applicable law, we conclude that the trial

court’s judgment should remain undisturbed.

I. Factual Background

A. Substantive Facts

On 19 July 2012, Detectives Randall Ackley and Brad Gillis

of the Johnston County Sheriff’s Office went to Defendant’s

mobile home in Benson. Upon arriving at that location, the

investigating officers met Defendant and his sister, informed

Defendant that they had come to his residence for the purpose of

serving outstanding warrants, and asked Defendant to identify

the room that he occupied. In response to this inquiry,

Defendant indicated that he occupied a room located at the far

end of the mobile home.

After Defendant’s father arrived at the residence, he

consented to allow the investigating officers to conduct a

search of the mobile home. As a result, Defendant led Detective

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Ackley into the interior of the mobile home and down the hallway

to his room. As he entered Defendant’s bedroom, Detective

Ackley observed the presence of several items that caused him to

ask Defendant to leave the room and wait in the mobile home’s

living room with Detective Gillis while he conducted his search.

At the time that he initially inspected the bedroom,

Detective Ackley noted a mirror that had been placed against the

wall and observed an end table on which were situated cellular

phones, two digital scales, and a bag containing a green leafy

substance that Detective Ackley believed to be marijuana, based

upon his training and experience. In addition, Detective Ackley

found a box of plastic bags on the coffee table in the bedroom.

After looking behind the mirror, Detective Ackley found an

orange pill bottle that contained a white substance. After

making this discovery, Detective Ackley repositioned the mirror

and went to the living room to get Detective Gillis.

When the investigating officers reached Defendant’s

bedroom, Detective Ackley showed Detective Gillis what he had

discovered on the table and behind the mirror and asked

Defendant to enter the room. At that point, Detective Gillis

asked Defendant if there were any other illegal items in his

room and received a negative response. After the investigating

officers seized the pill bottle, in which two plastic bags

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containing a white substance were situated, Detective Gillis

told Defendant that he believed that the bottle contained a

controlled substance and asked Defendant several times if he

knew what the substance was. Although he initially claimed to

be ignorant of the substance’s identity, Defendant eventually

said, “[i]t is what you said it is.” A laboratory analysis of

the contents of the pill bottle revealed the presence of two

plastic bags, one of which contained approximately 21.5 grams of

cocaine base and the other of which contained a mixture of rice

and cocaine base weighing approximately 28.26 grams.

On 20 July 2012, the investigating officers conducted a

videotaped interview of Defendant. During the interview,

Detective Ackley informed Defendant that the investigating

officers had seized a sufficiently large amount of controlled

substances from his residence to suggest that he was selling

cocaine. Although Defendant denied having sold a controlled

substance, he did admit to having mixed rice with the cocaine

base to eliminate the moisture contained in the cocaine base and

placed the bag containing the combined substance in the pill

bottle.

B. Procedural History

On 19 July 2012, a warrant for arrest was issued charging

Defendant with trafficking in between 28 and 200 grams of

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cocaine by manufacturing; trafficking in between 28 and 200

grams of cocaine by possession; and maintaining a dwelling house

for the purpose of keeping and selling a controlled substance.

On 4 September 2012, the Johnston County grand jury returned a

bill of indictment charging Defendant with trafficking in

between 28 and 200 grams of cocaine by manufacturing;

trafficking in between 28 and 200 grams of cocaine by

possession; and maintaining a dwelling house for the purpose of

keeping or selling a controlled substance. The charges against

Defendant came on for trial before the trial court and a jury at

the 31 July 2013 criminal session of Johnston County Superior

Court. At the conclusion of the State’s evidence, the trial

court dismissed the charge of maintaining a dwelling house for

the purpose of keeping or selling a controlled substance for

insufficiency of the evidence. On 2 August 2013, the jury

returned verdicts convicting Defendant of trafficking in between

28 and 200 grams of cocaine by manufacturing and felonious

possession of cocaine. At the conclusion of the ensuing

sentencing hearing, the trial court consolidated Defendant’s

convictions for judgment and sentenced Defendant to a term of 35

to 51 months imprisonment. Defendant noted an appeal to this

Court from the trial court’s judgment.

II. Legal Analysis

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A. Jurisdiction and Indictment

In his first challenge to the trial court’s judgment,

Defendant contends that the trial court lacked subject matter

jurisdiction to try him and to enter judgment against him for

the crime of trafficking in between 28 and 200 grams of cocaine

by manufacturing on the grounds that the indictment that

purported to charge him with committing that offense was fatally

defective. More specifically, Defendant contends that the

trafficking in between 28 and 200 grams of cocaine by

manufacturing indictment returned against him was fatally

defective on the grounds that the indictment did not adequately

describe the manner in which Defendant allegedly manufactured

cocaine. Defendant’s argument lacks merit.

1. Standard of Review

As the Supreme Court has previously stated, “[i]t is

elementary that a valid bill of indictment is essential to the

jurisdiction of the trial court to try an accused for a felony.”

State v. Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719, 729

(1981) (citations omitted). “It is well established that ‘[a]n

indictment is fatally defective if it wholly fails to charge

some offense . . . or fails to state some essential and

necessary element of the offense of which the defendant is found

guilty.’” State v. Land, __ N.C. App. __, __, 733 S.E.2d 588,

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591 (2012) (quoting State v. Partridge, 157 N.C. App. 568, 570,

579 S.E.2d 398, 399 (2003)), disc. review denied in part, __

N.C. __, 758 S.E.2d 851, affirmed in part, 366 N.C. 550, 742

S.E.2d 803 (2013). “As a general rule[,] a [charging

instrument] following substantially the words of the statute is

sufficient when it charges the essentials of the offense in a

plain, intelligible, and explicit manner” unless “the statutory

language fails to set forth the essentials of the offense,” in

which case “the statutory language must be supplemented by other

allegations which plainly, intelligibly, and explicitly set

forth every essential element of the offense as to leave no

doubt in the mind of the defendant and the court as to the

offense intended to be charged.” State v. Barneycastle, 61 N.C.

App. 694, 697, 301 S.E.2d 711, 713 (1983) (citing State v.

Palmer, 293 N.C. 633, 638-39, 239 S.E.2d 406, 410 (1977), and

State v. Loesch, 237 N.C. 611, 612, 75 S.E.2d 654, 655 (1953)).

A convicted criminal defendant is entitled to challenge the

sufficiency of the indictment upon which the trial court’s

judgment is based even if the challenge that the defendant

wishes to assert on appeal was never raised in the trial court.

State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341, cert.

denied, 531 U.S. 1018, 121 S. Ct. 581, 148 L. Ed. 2d 498 (2000)

(stating that, “where an indictment is alleged to be invalid on

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its face, thereby depriving the trial court of its [subject

matter] jurisdiction, a challenge to that indictment may be made

at any time, even if it was not contested in the trial court”).

We “review the sufficiency of an indictment de novo.” State v.

McKoy, 196 N.C. App. 650, 652, 675 S.E.2d 406, 409, appeal

dismissed and disc. review denied, 363 N.C. 586, 683 S.E.2d 215

(2009).

2. Validity of Manufacturing Indictment

The indictment returned against Defendant in this case

alleged that Defendant had “manufacture[ed] twenty-eight (28)

grams or more, but less than two hundred (200) grams of a

mixture containing cocaine[.]” A person is guilty of

trafficking in cocaine by manufacturing if he or she

manufactures 28 grams or more of cocaine or any mixture

containing cocaine. N.C. Gen. Stat. § 90-95(h)(3). As a

result, in order to establish a defendant’s guilt of trafficking

in between 28 and 200 grams of cocaine by manufacturing, the

State must establish beyond a reasonable doubt that the

defendant manufactured an amount of cocaine or a mixture

containing cocaine that weighed between 28 and 200 grams. N.C.

Gen. Stat. §90-95(h)(3). A defendant involved in the

“production, preparation, propagation, compounding, conversion,

or processing of a controlled substance by any means,” including

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“any packaging or repackaging of the substance,” has engaged in

“manufacturing” for purposes of the cocaine trafficking

statutes. N.C. Gen. Stat. § 90-87(15).

Although Defendant contends in his brief that the

indictment purporting to charge him with trafficking in cocaine

by manufacturing was fatally defective based upon the fact that

it failed to specify the exact manner in which he allegedly

manufactured cocaine or a cocaine-related mixture, Defendant has

failed to cite any authority establishing the existence of such

a requirement, and we have not identified any such authority in

the course of our own research. On the contrary, the relevant

count of the indictment that had been returned against Defendant

in this case is clearly couched in the statutory language and

alleges that Defendant’s conduct encompassed each of the

elements of the offense in question. Although Defendant is

correct in noting that the indictment does not explicitly

delineate the manner in which he manufactured cocaine or a

cocaine-related mixture, the relevant statutory language creates

a single offense consisting of the manufacturing of a controlled

substance rather than multiple offenses depending on the exact

manufacturing activity in which Defendant allegedly engaged. As

a result, since the relevant count in the indictment returned

against Defendant in this case alleges all of the elements of

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the offense of trafficking in between 28 and 200 grams of

cocaine by manufacturing, we conclude that the indictment

returned against Defendant was not fatally defective and

sufficed to give the trial court jurisdiction to hear this case

and enter judgment against Defendant based upon his conviction

for trafficking in between 28 and 200 grams of cocaine by

manufacturing.

B. Submission of Manufacturing Cocaine

In his second challenge to the trial court’s judgment,

Defendant contends that the trial court committed plain error by

failing to allow the jury to consider the issue of his guilt of

the lesser included offense of manufacturing cocaine. More

specifically, Defendant contends that, just as the trial court

allowed the jury to consider the issue of Defendant’s guilt of

the lesser included offense of felonious possession of cocaine,

it should have allowed the jury to consider the issue of his

guilt of manufacturing cocaine given that the jury might have

failed to find beyond a reasonable doubt that Defendant

manufactured a mixture containing between 28 and 200 grams of

cocaine. We do not find Defendant’s argument persuasive.

1. Standard of Review

As he candidly acknowledges, Defendant did not object at

trial to the trial court’s failure to submit the issue of his

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guilt of manufacturing cocaine to the jury as a lesser included

offense. For that reason, we are limited to determining whether

the trial court’s inaction constituted plain error. N.C.R. App.

P. 10(a)(4); State v. Goforth, 170 N.C. App. 584, 587, 614

S.E.2d 313, 315 (stating that, “[b]ecause defendant failed to

object to the jury instructions at trial, the standard of review

therefore is plain error”), cert. denied, 359 N.C. 854, 619

S.E.2d 854 (2005). “A reversal for plain error is only

appropriate in the most exceptional cases.” State v. Raines,

362 N.C. 1, 16, 653 S.E.2d 126, 136 (2007) (citation and

quotation marks omitted), cert. denied, 557 U.S. 934, 129 S. Ct.

2857, 174 L. Ed. 2d 601 (2009). “To show plain error, [the]

defendant must convince this Court not only that there was

error, but that absent the error, the jury probably would have

reached a different result.” State v. Garcell, 363 N.C. 10, 35,

678 S.E.2d 618, 634 (citation and quotation marks omitted),

cert. denied, 558 U.S. 999, 130 S. Ct. 510, 175 L. Ed. 2d 362

(2009).

2. Relevant Legal Principles

A lesser included offense is one that “requires no proof

beyond that which is required for conviction of the greater

[offense].” Brown v. Ohio, 432 U.S. 161, 168, 97 S. Ct. 2221,

2226, 53 L. Ed. 2d 187, 196 (1977). A trial court must instruct

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the jury concerning the issue of the defendant’s guilt of a

lesser included offense in the event that “(1) the evidence is

equivocal on an element of the greater offense so that the jury

could reasonably find either the existence or the nonexistence

of this element; and (2) absent this element only a conviction

of the lesser included offense would be justified.” State v.

White, 142 N.C. App. 201, 205, 542 S.E.2d 265, 268 (2001)

(citations omitted). As a result, a trial court should instruct

the jury concerning the issue of a defendant’s guilt of a lesser

included offense where “the evidence ‘would permit a jury

rationally to find [the] [defendant] guilty of the lesser

offense and acquit him of the greater,’” State v. Thomas, 325

N.C. 583, 594, 386 S.E.2d 555, 561 (1989) (quoting State v.

Strickland, 307 N.C. 274, 286, 298 S.E.2d 645, 654 (1983),

overruled in part on other grounds in State v. Johnson, 317 N.C.

193, 203, 344 S.E.2d 775, 781 (1986)), with “[t]he determinative

factor [being] what the State’s evidence tends to prove.”

Strickland, 307 N.C. at 293, 298 S.E.2d at 658.

It is well-established that the total “quantity of the

mixture containing cocaine may be sufficient in itself to

constitute a violation under N.C. Gen. Stat. § 90-95(h)(3).”

State v. Broome, 136 N.C. App. 82, 86, 523 S.E.2d 448, 452

(1999) (holding that the defendant was properly convicted of

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trafficking in between 200 and 400 grams of cocaine by

possession based upon the seizure of a package containing a

cocaine mixture that, while weighing 273 grams, contained only

27 grams of pure cocaine), disc. review denied, 351 N.C. 362,

543 S.E.2d 136 (2000); State v. Tyndall, 55 N.C. App. 57, 60-61,

284 S.E.2d 575, 577 (1981). As a result, in a case in which the

defendant has been charged with trafficking in between 28 and

200 grams of a cocaine mixture, the State need not prove that

the mixture contained between 28 and 200 grams of cocaine;

instead, the State need only prove that the mixture, considered

as a whole, met the relevant weight standard.

3. Evidentiary Analysis

The undisputed record evidence indicates that Defendant

admitted having added rice to some portion of the cocaine base

that was in his possession for the purpose of removing moisture

from that substance and having placed the bag containing the

mixture of rice and cocaine base into the pill bottle discovered

by investigating officers. Although Defendant argues that a

combination of cocaine base and rice does not constitute a

“mixture” as that term is used in our trafficking statutes, he

cites no authority in support of that assertion, we have found

no support for that assertion in the course of our own research,

and the statutory reference to a “mixture” appears to us to

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encompass the mixture of a controlled substance with any other

substance regardless of the reason for which that mixture was

prepared. In addition, various items used to weigh and package

controlled substances were found by investigating officers in

Defendant’s bedroom. As a result, the undisputed record

evidence clearly establishes that Defendant engaged in

“manufacturing” as that term is used in N.C. Gen. Stat. § 95-

87(15) with respect to more than 28 grams of cocaine or a

mixture containing cocaine. In addition, there is no record

support for the proposition that Defendant engaged in

manufacturing activities with respect to some amount of cocaine

less than that necessary to establish his guilt of a trafficking

offense. For that reason, Defendant’s argument rests upon a

contention that the jury could have chosen to refrain from

believing some portion of the State’s evidence while believing

the rest of it, an approach that we have consistently held to be

insufficient to support the submission of a lesser included

offense. As a result, despite its decision to submit the issue

of Defendant’s guilt of the lesser included offense of felonious

possession of cocaine for the jury’s consideration on the basis

of similar logic, the trial court did not err, much less commit

plain error, by failing to allow the jury to consider the issue

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of Defendant’s guilt of the lesser included offense of

manufacturing cocaine.

C. Trafficking by Manufacturing Instruction

In his third challenge to the trial court’s judgment,

Defendant contends that the trial court committed plain error by

failing to instruct the jury that it had to find beyond a

reasonable doubt that Defendant manufactured cocaine with the

intent to distribute before convicting him of that offense.

More specifically, Defendant contends that, in order to find him

guilty of trafficking in between 28 and 200 grams of cocaine by

manufacturing on the basis of compounding, the jury was required

to find that Defendant acted with the intent to distribute.

Defendant is not entitled to relief from the trial court’s

judgment on the basis of this argument.

1.Standard of Review

As he once again candidly admits, Defendant did not object

to the trial court’s failure to instruct the jury that it had to

find beyond a reasonable doubt that he had an intent to

distribute in order to convict him of trafficking in between 28

and 200 grams of cocaine by manufacturing based upon

compounding. For that reason, we are, once again, required to

utilize a plain error standard of review in evaluating the

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validity of Defendant’s contention. N.C.R. App. P. 10(a)(4);

Goforth, 170 N.C. App. at 587, 614 S.E.2d at 315.

2. Plain Error Analysis

As Defendant notes, we have held that, “where the defendant

is charged with manufacture of a controlled substance and the

activity constituting manufacture is preparation or

compounding,” the State must prove the existence of any intent

to distribute the controlled substance. State v. Childers, 41

N.C. App. 729, 732, 255 S.E.2d 654, 656, cert. denied, 298 N.C.

302, 259 S.E.2d 916 (1979). Although the State has responded by

arguing that the holding in Childers does not apply in this case

given that Defendant had been charged with trafficking in

cocaine by manufacturing in violation of N.C. Gen. Stat. § 90-

95(h)(3) rather than felonious manufacturing of cocaine in

violation of N.C. Gen. Stat. § 90-95(a)(1) and that the

requirement that the State prove beyond a reasonable doubt that

Defendant’s activities involved between 28 and 200 grams of

cocaine and a cocaine-related mixture obviates the necessity to

prove an intent to distribute given that “[o]ur legislature has

determined that certain amounts of controlled substances and

certain amounts of mixtures containing controlled substances

indicate an intent to distribute on a large scale,” Tyndall, 55

N.C. App. at 60-61, 284 S.E.2d at 577, we need not reach this

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issue in light of our recognition that the trial court allowed

the jury to find that Defendant engaged in manufacturing-related

activities based on packaging and repackaging as well as

compounding and the fact that the undisputed record evidence

shows that Defendant placed the cocaine-related mixture in the

pill bottle and possessed items used to weigh and package

controlled substances in the vicinity of a substantial amount of

cocaine base and a cocaine-related mixture. As a result, since

we do not believe that Defendant has established that a

different outcome would probably have been reached had the

instruction at issue here been delivered at trial, we conclude

that Defendant is not entitled to relief on the basis of this

argument.

D. Sufficiency of the Evidence

In his final challenge to the trial court’s judgment,

Defendant contends that the trial court erred by denying his

motion to dismiss the trafficking in between 28 and 200 grams of

cocaine by manufacturing charge for insufficiency of the

evidence. More specifically, Defendant contends that the trial

court should have dismissed the trafficking in between 28 and

200 grams of cocaine by manufacturing charge on the grounds that

the evidence did not suffice to support a determination that

Defendant had packaged or repackaged cocaine or a cocaine-

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related mixture or that Defendant had compounded a sufficient

quantity of cocaine or a cocaine-related mixture with the intent

to distribute. Once again, we conclude that Defendant is not

entitled to relief from the trial court’s judgment on the basis

of this argument.

1. Standard of Review

“This Court reviews the trial court’s denial of a motion to

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007). “Upon [a] defendant’s motion for

dismissal, the question for the Court is whether there is

substantial evidence (1) of each essential element of the

offense charged, or of a lesser offense included therein, and

(2) of defendant’s being the perpetrator of such offense.”

State v. Wallace, 197 N.C. App. 339, 343, 676 S.E.2d 922, 925

(2009) (citation and quotation marks omitted). “Substantial

evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” State v. Boyd, 177

N.C. App. 165, 175, 628 S.E.2d 796, 804 (2006) (quoting State v.

Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001)). In

making the required sufficiency determination, the record

evidence presented must be viewed “in the light most favorable

to the State.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d

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451, 455, cert. denied, 531 U.S. 890, 121 S. Ct. 213, 148 L. Ed.

2d 150 (2000).

2. Relevant Legal Principles

As we have already noted, the statutory definition of

“manufacturing” “includes any packaging or repackaging of the

[controlled] substance[.]” N.C. Gen. Stat. § 90-87(15).

“[T]his Court has held that there was sufficient evidence of

manufacturing where the instruments of manufacture are found

together with cocaine which was apparently manufactured.” State

v. Outlaw, 96 N.C. App. 192, 198, 385 S.E.2d 165, 169 (1989),

disc. review denied, 326 N.C. 266, 389 S.E.2d 118 (1990). As a

result, in the event that investigating officers find cocaine or

a cocaine-related mixture and an array of items used to package

and distribute that substance, the evidence suffices to support

a manufacturing conviction. See Brown, 64 N.C. App. at 640-41,

308 S.E.2d at 348-49 (holding that evidence, such as plastic

bags and tinfoil, found on the defendant’s table in connection

with his constructive possession of cocaine was sufficient to

support a manufacturing conviction).

3. Sufficiency Analysis

According to the undisputed record evidence, investigating

officers found a pill bottle that housed a bag containing 21

grams of cocaine base and a second bag containing a mixture of

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rice and cocaine base that weighed 28.26 grams behind a mirror

in Defendant’s bedroom. In addition, investigating officers

seized two digital scales and boxes of plastic bags from the

same room. As Detective Ackley testified, plastic bags, in

conjunction with digital scales, are used for the separation of

controlled substances and as a “method of distribution.”

Defendant acknowledged having placed the bag containing the

mixture of cocaine base and rice in the pill bottle. As a

result, given that the State’s evidence showed that more than 28

grams of cocaine and several items that are commonly used to

weigh, separate, and package cocaine for sale were seized from

Defendant’s bedroom; that the cocaine and cocaine-related

mixture found in the pill bottle located behind the mirror in

Defendant’s bedroom were packaged in plastic bags; and that our

prior decisions in Outlaw and Brown indicate that such evidence

is sufficient to support a manufacturing conviction on the basis

of packaging and repackaging,1 we conclude that the trial court

did not err by denying Defendant’s dismissal motion.

In seeking to persuade us to reach a different result,

Defendant contends that there was no indication that the plastic

1

In view of our determination that the record supports a

finding that Defendant packaged or repackaged the cocaine and

cocaine-related mixture found in his bedroom, we need not

analyze the sufficiency of the evidence to show that Defendant

engaged in compounding-related activities as well.

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bags and digital scales found in his bedroom were used in

packaging the cocaine found behind the mirror. Instead,

Defendant asserts that digital scales and plastic bags are not

“unique to the manufacture of cocaine” and might have been used

solely for the purpose of weighing and packaging the marijuana

that was discovered in his bedroom. Although Defendant’s

argument rests upon an accurate description of the record

evidence, the inference that he wishes us to draw is not the

only interpretation that a reasonable juror could have adopted

after hearing and analyzing the State’s case. Instead, the

argument upon which Defendant relies amounts to a challenge to

the weight that the jury should have given to the evidence

rather than to its sufficiency. As a result, the trial court

appropriately denied Defendant’s dismissal motion.

III. Conclusion

Thus, for the reasons set forth above, we conclude that

none of Defendant’s challenges to the trial court’s judgment

have merit. As a result, the trial court’s judgment should, and

hereby does, remain undisturbed.

AFFIRMED.

Judges GEER and STEPHENS concur.