holding a prerequisite to a plain error analysis requires the appellate court to first find prejudice against the defendant, meaning “the error had a probable impact on the jury’s finding that the defendant was guilty.”
How later courts described this case
- holding a prerequisite to a plain error analysis requires the appellate court to first find prejudice against the defendant, meaning “the error had a probable impact on the jury’s finding that the defendant was guilty.”
- vacating the defendant’s two sentences and remanding for a new sentence hearing upon the State’s concession “the trial court failed to make sufficient findings to support the two sentences”
Written by the judges who cited it.
The opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-716
Filed: 1 May 2018
Wayne County, No. 15 CRS 050319
STATE OF NORTH CAROLINA
v.
RAMELLE MILEK LOFTON
Appeal by Defendant from judgment entered 20 July 2016 by Judge Martin B.
McGee in Superior Court, Wayne County. Heard in the Court of Appeals 22 January
2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Allison A.
Angell, for the State.
William D. Spence for Defendant.
McGEE, Chief Judge.
Ramelle Milek Lofton (“Defendant”) was indicted 2 May 2016 on charges of
manufacturing a controlled substance pursuant to N.C. Gen. Stat. § 90-95(a)(1),
possession of marijuana, and possession of drug paraphernalia.1 These charges arose
out of events that occurred on 20 January 2015, when officers from the Goldsboro
Police Department executed a search warrant for Defendant’s residence. Defendant
1
In the indictment, the State erroneously cites N.C.G.S. § 90-95(a)(3) in support of the
manufacturing charge.
STATE V. LOFTON
Opinion of the Court
was tried at the 18 July 2016 criminal session of Wayne County Superior Court. The
jury was instructed on possession of marijuana and drug paraphernalia, as well as
manufacturing a controlled substance and the lesser included offense of attempting
to manufacture a controlled substance. See State v. Clark, 137 N.C. App. 90, 96–97,
527 S.E.2d 319, 323 (2000) (attempt is a lesser included offense of the underlying
charge). Defendant was found guilty on 20 July 2016 on the charges of attempting to
manufacture a controlled substance and possession of marijuana. He was acquitted
on the charge of possession of drug paraphernalia. Defendant appeals.
In Defendant’s sole argument, he contends that “[t]he trial court erred in
denying [his] motion to dismiss the charge of attempting to manufacture a controlled
substance[.]” We agree, though on jurisdictional grounds not raised by Defendant.
We hold that the indictment charging Defendant with manufacturing
marijuana was fatally defective.
“North Carolina law has long provided that ‘[t]here can be
no trial, conviction, or punishment for a crime without a
formal and sufficient accusation. In the absence of an
accusation the court acquires no jurisdiction whatever, and
if it assumes jurisdiction a trial and conviction are a
nullity.’” “[W]here an indictment is alleged to be invalid on
its face, thereby depriving the trial court of [subject matter]
jurisdiction, a challenge to that indictment may be made at
any time, even if it was not contested in the trial court.”
This Court “review[s] the sufficiency of an indictment de
novo.”
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STATE V. LOFTON
Opinion of the Court
State v. Harris, 219 N.C. App. 590, 593, 724 S.E.2d 633, 636 (2012) (citations omitted)
(alterations in the original). Defendant was indicted on the manufacturing charge by
the following relevant language:
[O]n or about the 20th day of January, 2015 in Wayne
County, [Defendant] unlawfully, willfully and feloniously
did manufacture a controlled substance in violation of the
North Carolina Controlled Substances Act, by producing,
preparing, propagating and processing a controlled
substance. The controlled substance in question consisted
of marijuana[.]
(Emphasis added).2
N.C. Gen. Stat. § 90-95(a)(1) (2017) is the statute pertaining to the illegal
manufacture of controlled substances:
N.C.G.S. § 90-95(a)(1) makes it unlawful to “manufacture,
sell or deliver, or possess with intent to manufacture, sell
or deliver, a controlled substance.” The intent of the
legislature in enacting N.C.G.S. § 90-95(a)(1) was twofold:
“(1) to prevent the manufacture of controlled substances,
and (2) to prevent the transfer of controlled substances
from one person to another.”
State v. Moore, 327 N.C. 378, 381, 395 S.E.2d 124, 126 (1990) (citation omitted). Our
Supreme Court determined “the language of N.C.G.S. § 90-95(a)(1) creates three
offenses: (1) manufacture of a controlled substance, (2) transfer of a controlled
2 We note that the use of the conjunction “and,” instead of “or,” placed an additional burden on
the State. The indictment as written required the State to prove that Defendant produced marijuana,
prepared marijuana, propagated marijuana, and processed marijuana in order to prove that
Defendant manufactured marijuana. As discussed in detail below, the relevant statute only requires
the State to prove one basis – e.g. preparing marijuana – in order to sustain a charge of manufacturing
marijuana. The State’s use of the word “and” does not impact our jurisdictional analysis.
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STATE V. LOFTON
Opinion of the Court
substance by sale or delivery, and (3) possession with intent to manufacture, sell or
deliver a controlled substance.” Id. (emphasis in original). Therefore, a defendant
may be indicted, separately, for manufacturing a controlled substance, transferring
a controlled substance, or possessing with intent to manufacture or transfer a
controlled substance. Id.
In Moore, the defendant was convicted of “selling” hallucinogenic mushrooms
and “delivering” hallucinogenic mushrooms pursuant to a single transfer. Id. at 379-
80, 395 S.E.2d at 125-26. Each of these convictions was treated as a separate offense.
Id. Our Supreme Court held that, pursuant to N.C.G.S. § 90-95(a)(1), “selling” and
“delivering” constitute two ways in which the crime of transferring a controlled
substance may be proven, but that “selling” and “delivering” in this context did not
constitute separate offenses for which a defendant may be convicted based upon a
single transaction. Moore, 327 N.C. at 381, 395 S.E.2d at 126. Therefore, the Court
in Moore held: “The jury in this case was improperly allowed under each indictment
to convict the defendant of two offenses – sale and delivery – arising from a single
transfer.” Id. at 383, 395 S.E.2d at 127. Because the defendant in Moore was
convicted of both “selling” and “delivering” the same mushrooms in a single
transaction, one of the defendant’s convictions based upon transferring a controlled
substance was vacated. Id.
Our Supreme Court was careful to explain that its reasoning did not implicate
issues of unanimity:
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STATE V. LOFTON
Opinion of the Court
Our conclusion regarding the proper interpretation of
N.C.G.S. § 90-95(a)(1) does not create a risk of a defendant
being convicted by a nonunanimous verdict. The
legislature intended that there be one conviction and
punishment under the statute for defendants who transfer,
i.e., “sell or deliver,” a controlled substance. The transfer
by sale or delivery of a controlled substance is one statutory
offense, the gravamen of the offense being the transfer of
the drug. So long as each juror finds that the defendant
transferred the substance, whether by sale, by delivery, or
by both, the defendant has committed the statutory
offense, and no unanimity concerns are implicated.
Id. (citations omitted).
In the present case, Defendant was indicted for manufacturing marijuana in
violation of N.C.G.S. § 90-95(a)(1). As with a charge of transferring pursuant to
N.C.G.S. § 90-95(a)(1), a charge of manufacturing may be proven in multiple ways.
N.C.G.S. § 90-95(a)(1) states:
(a) Except as authorized by this Article, it is unlawful for
any person:
(1) To manufacture, sell or deliver, or possess with
intent to manufacture, sell or deliver, a controlled
substance[.]
Relevant to this appeal, “manufacture” is defined by statute as follows:
“Manufacture” means the production, preparation,
propagation, compounding, . . . or processing of a controlled
substance by any means, whether directly or indirectly,
artificially or naturally[.] [However, “manufacture”] does
not include the preparation or compounding of a controlled
substance by an individual for his own use[.]
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STATE V. LOFTON
Opinion of the Court
N.C. Gen. Stat. § 90-87(15) (2017) (emphasis added). Therefore, the State could have
indicted Defendant on a single count of manufacturing marijuana, based on the
multiple bases of production, preparation, propagation, or processing which,
pursuant to Moore, could have been proven by evidence that Defendant either
produced, prepared, propagated, or processed the marijuana. Moore, 327 N.C. at 383,
395 S.E.2d at 127. The fact that the jury could thereby convict Defendant based upon
different methods of “manufacturing” – i.e. some jurors could find that Defendant
produced marijuana, some could find that he prepared marijuana, some could find
that he propagated marijuana, and some could find that he processed marijuana –
does not raise any unanimity concerns.3
However, Defendant’s indictment for manufacturing marijuana is fatally
flawed. Defendant was indicted pursuant to the “manufacturing” prong of N.C.G.S.
§ 90-95(a)(1) based upon the following relevant language: “[O]n or about the 20th day
of January, 2015 in Wayne County, [Defendant] unlawfully, willfully and feloniously
did manufacture a controlled substance in violation of [N.C.G.S. § 90-95(a)(1)], by
producing, preparing, propagating and processing [marijuana].” Our Supreme Court
has held that proof of intent to distribute is required by portions of the
“manufacturing” prong of N.C.G.S. § 90-95(a)(1), stating that “the offense of
3As noted above, because the indictment in this case used the language “producing, preparing,
propagating and processing,” instead of “producing, preparing, propagating, or processing,” the
indictment as written required the State to prove all four of these bases in order to convict Defendant
of manufacturing marijuana.
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STATE V. LOFTON
Opinion of the Court
manufacturing a controlled substance does not require an intent to distribute unless
the activity constituting manufacture is preparation or compounding.” State v.
Brown, 310 N.C. 563, 568, 313 S.E.2d 585, 588 (1984) (emphasis added); see also Id.,
(emphasis added) (“the plain language of [N.C.G.S. § 90-87(15)] makes it clear that
these activities [“packaging,” “repackaging,” “labeling,” and “relabeling”] are not
included within the limited exception of those manufacturing activities (preparation,
compounding) for which an intent to distribute is required”); State v. Muncy, 79 N.C.
App. 356, 362, 339 S.E.2d 466, 470 (1986) (citation omitted) (emphasis added) (“intent
to distribute is not a necessary element of the offense of manufacturing a controlled
substance unless the manufacturing activity is preparation or compounding”). It is
clear that intent to distribute is a required element if the manufacturing charge is
based upon either preparation or compounding because preparation or compounding
for personal use is specifically exempted under N.C.G.S. § 90-95(a)(1) and, therefore,
the State must prove that a defendant’s intent was not personal use, but distribution.
Id.
In the present case, Defendant moved to dismiss the manufacturing charge
based in part on the following argument:
Judge, we’d move to dismiss the allegation of preparation
for a fatal defect in the indictment, which takes the
jurisdiction from this [c]ourt. Judge, preparation,
pursuant to General Statute[§ 90-87(15)], requires that the
State charge preparation with the intent to distribute,
intent to distribute being an essential element of that
offense.
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STATE V. LOFTON
Opinion of the Court
The trial court denied Defendant’s motion to dismiss the manufacturing charge in its
entirety, and instructed the jury on attempt to manufacture marijuana on all four
indicted bases: producing, propagating, processing, and preparing.
Because Defendant’s indictment for the charge of manufacturing a controlled
substance pursuant to N.C.G.S. § 90-95(a)(1) included preparation as a basis, it failed
to allege a required element – intent to distribute. A valid indictment is a
requirement for jurisdiction, and the fact that Defendant does not argue this issue on
appeal does not relieve this Court of its duty to insure it has jurisdiction over
Defendant’s appeal. Harris, 219 N.C. App. at 593, 724 S.E.2d at 636; State v. Helms,
247 N.C. 740, 745, 102 S.E.2d 241, 245 (1958).
Because the State chose to allege four separate bases pursuant to which it
could attempt to prove Defendant’s guilt of the single count of manufacturing a
controlled substance, it was necessary that all four of those bases were alleged with
sufficiency to confer jurisdiction on the trial court for the manufacturing charge.
Because one of those bases — “preparation” — required the unalleged element of
“intent to distribute,” and the jury was instructed on all four bases alleged in the
indictment, including “preparation,” the jury was allowed to convict Defendant on a
theory of manufacturing a controlled substance that was not supported by a valid
indictment. The omission of the element of intent from the indictment charging
Defendant of manufacturing a controlled substance constituted a fatal defect. This
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STATE V. LOFTON
Opinion of the Court
Court cannot now, on appeal, isolate the defect in the indictment in a manner that
does not taint the entire indictment.4 The fact that the indictment as written would
have supported the charge of manufacturing a controlled substance had the State
only included the underlying theories of “production,” “propagation,” and “processing”
as bases for proving “manufacturing” does not save the indictment. Because the
underlying basis of “preparation” was also alleged in the indictment and presented to
the jury, “intent to distribute” became a necessary element of the manufacturing
charge, and its absence constituted a fatal defect.
“An arrest of judgment is proper when the indictment wholly fails to charge
some offense cognizable at law or fails to state some essential and necessary
element of the offense of which the defendant is found guilty.” Harris, 219 N.C.
App. at 593, 724 S.E.2d at 636 (quotation marks and citations omitted). “The legal
effect of arresting the judgment is to vacate the verdict and sentence of imprisonment
below, and the State, if it is so advised, may proceed against the defendant upon a
sufficient bill of indictment.” Id. (quotation marks and citations omitted). Because
the indictment for the charge of manufacturing a controlled substance failed to
include a necessary element of that crime as alleged by the State, the indictment
failed to confer subject matter jurisdiction upon the trial court for that charge, and
4 Because this issue is not before us, we do not consider whether the trial court could have
cured the defect by allowing amendment of the indictment or only instructing the jury on the
production, propagation, and processing theories of manufacturing a controlled substance alleged by
the State.
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STATE V. LOFTON
Opinion of the Court
we vacate Defendant’s conviction for that charge. Id. at 598, 724 S.E.2d at 639.
Defendant has not challenged his conviction for possession of marijuana, and that
conviction is unaffected by this opinion.
NO ERROR IN PART, VACATED IN PART.
Judges DAVIS and TYSON concur.
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