State v. Miller

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-689

Filed 20 February 2024

Henderson County, Nos. 18 CRS 54778, 19 CRS 367

STATE OF NORTH CAROLINA

v.

MARK ALAN MILLER, Defendant.

Appeal by Defendant from judgment entered 19 November 2021 by Judge

Peter B. Knight in Henderson County Superior Court. Heard in the Court of Appeals

11 April 2023.

Attorney General Joshua H. Stein, by Assistant Attorney General Jodi Privette

Carpenter, for the State.

Carolina Law Group, by Kirby H. Smith, III, for Defendant-Appellant.

CARPENTER, Judge.

Mark Alan Miller (“Defendant”) appeals from judgment entered after a

Henderson County jury convicted him of trafficking in methamphetamine by

possession, in violation of subsection 90-95(h)(3b), and trafficking in opium by

possession, in violation of subsection 90-95(h)(4). See N.C. Gen. Stat. § 90-95(h)(3b),

(4). On appeal, Defendant argues the trial court erred by: (1) denying his motion to

dismiss the subsection 90-95(h)(4) charge; (2) instructing the jury that opioids were

included in the definition of “opium or opiate” at the time of the offense; and (3)

considering evidence of improper factors at sentencing. After careful review, we

STATE V. MILLER

Opinion of the Court

disagree and discern no error.

I. Factual & Procedural Background

On 16 September 2019, a Henderson County grand jury indicted Defendant

for, among other crimes, “trafficking opium/heroin” under subsection 90-95(h)(4). On

8 November 2021, the State tried Defendant in Henderson County Superior Court.

Trial evidence relevant to this appeal tended to show the following. On 7

November 2018, the Henderson County Sherriff’s Drug Enforcement Unit executed a

valid search warrant at Defendant’s home, where they found a pill bottle containing

thirteen white pills. Miguel Cruz-Quinones, a forensic scientist with the North

Carolina State Crime Lab, tested the pills and found that they contained

hydrocodone.

At the close of the State’s case, Defendant moved to dismiss all the charges,

which the trial court denied. Defendant elected not to put on any evidence, but he

renewed his motion to dismiss the charges, which the trial court again denied.

During its jury instructions, the trial court explained, over Defendant’s objection, that

opioids were included in the definition of “opium or opiate” under subsection 90-

95(h)(4).

On 19 November 2021, the jury found Defendant guilty of “trafficking in

methamphetamine by possession,” in violation of subsection 90-95(h)(3b), and

“trafficking in opium by possession,” in violation of subsection 90-95(h)(4). The trial

court then conducted a sentencing hearing, where the State mentioned Defendant’s

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Opinion of the Court

rejection of a plea deal and additional drug activity at Defendant’s home. The trial

court sentenced Defendant to two consecutive sentences of imprisonment, both for

between seventy and ninety-three months. Also on 19 November 2021, Defendant

gave timely notice of appeal.

II. Jurisdiction

This Court has jurisdiction under N.C. Gen. Stat. § 7A-27(b)(1) (2021).

III. Issues

The issues on appeal are whether the trial court erred by: (1) denying

Defendant’s motion to dismiss his subsection 90-95(h)(4) charge; (2) instructing the

jury that opioids were included in the definition of “opium or opiate” at the time of

the offense; and (3) considering evidence of improper factors at sentencing.

IV. Analysis

A. Motion to Dismiss

First, Defendant argues the trial court erred in denying his motion to dismiss

the subsection 90-95(h)(4) charge because hydrocodone is an opioid and was not

prohibited by subsection 90-95(h)(4) at the time of the offense. We disagree.

We review a denial of a motion to dismiss de novo. State v. Smith, 186 N.C.

App. 57, 62, 650 S.E.2d 29, 33 (2007). Under a de novo review, this Court “‘considers

the matter anew and freely substitutes its own judgment’ for that of the lower

tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008)

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(quoting In re Greens of Pine Glen, Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316,

319 (2003)).

“Upon 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. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373,

378, 526 S.E.2d 451, 455 (2000) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d

914, 918 (1993)). “Substantial evidence is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71,

78, 265 S.E.2d 164, 169 (1980).

In reviewing Defendant’s motion to dismiss, we must interpret subsection 90-

95(h)(4). See N.C. Gen. Stat. § 90-95(h)(4). And when interpreting statutes, we must

“take the statute as we find it.” Anderson v. Wilson, 289 U.S. 20, 27, 53 S. Ct. 417,

420, 77 L. Ed. 1004, 1010 (1933). This is because “a law is the best expositor of itself.”

Pennington v. Coxe, 6 U.S. (2 Cranch) 33, 52, 2 L. Ed. 199, 205 (1804).

But our greatest guiding principle is stare decisis. See Dunn v. Pate, 334 N.C.

115, 118, 431 S.E.2d 178, 180 (1993). Stare decisis means once a principle of law has

been settled, “it is binding on the courts and should be followed in similar cases.”

State v. Ballance, 229 N.C. 764, 767, 51 S.E.2d 731, 733 (1949). Stare decisis stands

for the age-old axiom: “the law must be characterized by stability if men are to resort

to it for rules of conduct.” Id. at 767, 51 S.E.2d at 733. We are bound by previous

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cases decided by this Court, “unless it has been overturned by a higher court.” In re

Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). And we must adhere to

stare decisis—even if the prior decision is not faithful to the text of a statute. See id.

at 384, 379 S.E.2d at 37.

In State v. Garrett, we interpreted the 2016 version of subsection 90-95(h)(4)

and determined whether the subsection proscribed the transportation or possession

of “opioids.” 277 N.C. App. 493, 497, 860 S.E.2d 282, 286 (2021). As we said then,

subsection 90-95(h)(4) “made it unlawful to possess or transport ‘four grams or more

of opium or opiate, or any salt, compound, derivative, or preparation of opium or

opiate . . . , including heroin, or any mixture containing such substance.’” Id. at 497,

860 S.E.2d at 286 (quoting N.C. Gen. Stat. § 90-95(h)(4) (2016)).

Recognizing the word “opioid” was not included in the text of the subsection,

we nonetheless concluded that opioids, like fentanyl, “indeed qualify as an opiate

within the meaning of the statute.” Id. at 497–98, 860 S.E.2d at 286. We reasoned

that an opioid is “a highly addictive substance that produces effects that are similar

to those of morphine by acting on the opiate cell receptors in the brain.” Id. at 499–

500, 860 S.E.2d at 287. In other words, we held that possession of opioids violates

subsection 90-95(h)(4). See id. at 500, 860 S.E.2d at 288; N.C. Gen. Stat. § 90-95(h)(4).

The 2017 version of subsection 90-95(h)(4) preserved the same language as the

2016 version: The 2017 version prohibited the possession or transportation of “four

grams or more of opium or opiate, or any salt, compound, derivative, or preparation

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of opium or opiate . . . , including heroin, or any mixture containing such substance.”

N.C. Gen. Stat. § 90-95(h)(4) (2017) (applying to possession occurring on 8 November

2018, the date of Defendant’s alleged possession). Because the 2017 statute is the

same statute interpreted by the Garrett Court, the 2017 statute includes opioids. See

Garrett, 277 N.C. App. at 499–500, 860 S.E.2d at 287; In re Civil Penalty, 324 N.C. at

384, 379 S.E.2d at 37.

Here, the State charged Defendant with violating the 2017 version of

subsection 90-95(h)(4), and the State provided expert testimony that Defendant

possessed hydrocodone, an opioid. This evidence is substantial because it “is such

relevant evidence as a reasonable mind might accept as adequate” to show that

Defendant possessed opioids. See Smith, 300 N.C. at 78, 265 S.E.2d at 169.

Because opioids like hydrocodone “qualify as an opiate within the meaning of

the statute,” see Garrett, 277 N.C. App. at 497, 860 S.E.2d at 286, the State presented

“substantial evidence (1) of each essential element of the offense charged . . . , and (2)

of defendant’s being the perpetrator of such offense.” See Fritsch, 351 N.C. at 378,

526 S.E.2d at 455; N.C. Gen. Stat. § 90-95(h)(4). Therefore, the trial court did not err

in denying Defendant’s motion to dismiss concerning subsection 90-95(h)(4).

The Dissent, however, argues that we are not bound by Garrett because there,

we interpreted the 2016 version of subsection 90-95(h)(4), and here, Defendant was

convicted under the 2017 version of subsection 90-95(h)(4). Accordingly, the Dissent

states that “additional consideration of legislative intent would be inappropriate.”

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Opinion of the Court

First, we agree with the Dissent concerning legislative intent, and we do not

consider it. See Conroy v. Aniskoff, 507 U.S. 511, 519, 113 S. Ct. 1562, 1567, 123 L.

Ed. 2d 229, 238 (1993) (Scalia, J., concurring) (“We are governed by laws, not by the

intentions of legislators.”).

But we disagree with the Dissent’s position on Garrett and stare decisis. See

In re Civil Penalty, 324 N.C. at 384, 379 S.E.2d at 37. According to the Dissent, we

are not bound by Garrett because we have yet to interpret the 2017 version of

subsection 90-95(h)(4). Not so. The date of the statute is not dispositive because, as

the Dissent notes, the 2016 language of subsection 90-95(h)(4) is identical to the 2017

language of subsection 90-95(h)(4). And when “judicial interpretations have settled

the meaning of an existing statutory provision, repetition of the same language in a

new statute indicates” that the same interpretation applies. See Bragdon v. Abbott,

524 U.S. 624, 645, 118 S. Ct. 2196, 2208, 141 L. Ed. 2d 540, 562 (1998).

Nonetheless, the Dissent would hold contrary to Garrett because other statutes

“read in concert with N.C.G.S. § 90-95(h)(4), materially alter the meaning of the 2017

statute from the 2016 statute.” If this was a case of first impression, we could agree.

See W. Va. Univ. Hosps. v. Casey, 499 U.S. 83, 100, 111 S. Ct. 1138, 1148, 113 L. Ed.

2d 68, 84 (1991) (“Where a statutory term presented to us for the first time is

ambiguous, we construe it to contain that permissible meaning which fits most

logically and comfortably into the body of both previously and subsequently enacted

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law.”) (emphasis added). But this is not a case of first impression. See Garrett, 277

N.C. App. at 497, 860 S.E.2d at 286.

We could also agree with the Dissent if the General Assembly changed the

actual language of subsection 90-95(h)(4), or if the General Assembly changed the

definition of opiate to include language like “does not include opioids” or “does not

include hydrocodone.” The General Assembly did neither. So instead, we follow the

lead of Scalia and Garner:

A clear, authoritative judicial holding on the meaning of a

particular provision should not be cast in doubt and

subjected to challenge whenever a related though not

utterly inconsistent provision is adopted in the same

statute or even in an affiliated statute. Legislative revision

of law clearly established by judicial opinion ought to be by

express language or by unavoidably implied contradiction.

ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 331 (2012).

There is no express revision of subsection 90-95(h)(4). See N.C. Gen. Stat. §

90-95(h)(4). And while the Garrett Court’s interpretation of subsection 90-95(h)(4) is

broad, it does not create an unavoidable contradiction with the added definition of

opioid. See N.C. Gen. Stat. § 90-87(18a) (defining “opioid” in 2017). Under Garrett,

“opiate” includes opioids, see Garrett, 277 N.C. App. at 497, 860 S.E.2d at 286, and

the only difference between 2016 and 2017 is that the General Assembly defined

opioid, see N.C. Gen. Stat. § 90-87(18a). But the General Assembly did not change,

let alone narrow, the definition of opiate. See id. § 90-87(18). Therefore, “opiate”

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continues to encompass opioids, see Garrett, 277 N.C. App. at 499–500, 860 S.E.2d at

287; only now, opioids are statutorily defined, see N.C. Gen. Stat. § 90-87(18a).

We echo the Dissent’s proposition: “additional consideration of legislative

intent would be inappropriate.” The Dissent, however, proceeds to consider the

legislature’s intent. The Dissent argues that by defining “opioid,” the General

Assembly intended for “opiate” to no longer encompass opioids. If we were operating

on a clean slate, maybe so. But again, we are not. See Garrett, 277 N.C. App. at 497,

860 S.E.2d at 286. In our view, if the General Assembly wanted to override the

Garrett Court’s interpretation of subsection 90-95(h)(4), it needed to do so explicitly.

See SCALIA & GARNER, supra. Otherwise, we are merely grasping for legislative

intent—and ignoring binding precedent. See In re Civil Penalty, 324 N.C. at 384, 379

S.E.2d at 37; Garrett, 277 N.C. App. at 497, 860 S.E.2d at 286.

If we follow the Dissent’s approach, each year is a clean slate for statutory

interpretation—even if a statute’s language remains the same. See N.C. Gen. Stat. §

90-95(h)(4). This would reduce stare decisis to a nullity. We think that until the

General Assembly explicitly amends subsection 90-95(h)(4) or the definition of opiate,

or until our state Supreme Court overrules Garrett, we are bound by Garrett.

Accordingly, the trial court did not err in denying Defendant’s motion to dismiss

concerning subsection 90-95(h)(4).

B. Jury Instruction

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Opinion of the Court

Defendant next argues the trial court erred when, over Defendant’s objection,

it instructed the jury that opioids were included in the definition of “opium or opiate”

under subsection 90-95(h)(4). We disagree.

This Court reviews the legality of jury instructions de novo. State v. Barron,

202 N.C. App. 686, 694, 690 S.E.2d 22, 29 (2010). Again, under a de novo review, this

Court “‘considers the matter anew and freely substitutes its own judgment’ for that

of the lower tribunal.” Williams, 362 N.C. at 632–33, 669 S.E.2d at 294 (quoting In

re Greens of Pine Glen, Ltd. P’ship, 356 N.C. at 647, 576 S.E.2d at 319). And

concerning jury instructions, “[i]t is the duty of the trial court to instruct the jury on

the law applicable to the substantive features of the case arising on the evidence . . .

.” State v. Robbins, 309 N.C. 771, 776–77, 309 S.E.2d 188, 191 (1983).

Here, the trial court did not err by instructing the jury that opioids were

included in the definition of “opium or opiates” because, as detailed above, this Court

has so held. See Garrett, 277 N.C. App. at 497, 860 S.E.2d at 286; N.C. Gen. Stat. §

90-95(h)(4). Accordingly, the trial court did not err in its jury instruction because it

accurately instructed the jury on the applicable law. See Robbins, 309 N.C. at 776–

77, 309 S.E.2d at 191.

C. Sentencing

Lastly, Defendant argues the trial court improperly considered his rejection of

the State’s plea offer and additional drug activity during sentencing, violating his

constitutional rights. Again, we disagree.

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Opinion of the Court

“‘[A]n error at sentencing is not considered an error for the purpose of N.C.

Rule 10 (b)(1) of the North Carolina Rules of Appellate Procedure’ and therefore no

objection is required to preserve the issue for appellate review.” State v. Jeffrey, 167

N.C. App 575, 579, 605 S.E.2d 672, 674 (2004) (quoting State v. Hargett, 157 N.C.

App. 90, 92, 577 S.E.2d 703, 705 (2003)). So, we review constitutional sentencing

issues de novo, regardless of whether the defendant objected at trial. See State v.

Harris, 242 N.C. App. 162, 164, 775 S.E.2d 31, 33 (2015). And under a de novo review,

this Court “‘considers the matter anew and freely substitutes its own judgment’ for

that of the lower tribunal.” Williams, 362 N.C. at 632–33, 669 S.E.2d at 294 (quoting

In re Greens of Pine Glen, Ltd. P’ship, 356 N.C. at 647, 576 S.E.2d at 319).

“A sentence within the statutory limit will be presumed regular and valid.”

State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977). This presumption,

however, is not conclusive. Id. at 712, 239 S.E.2d at 465. “If the record discloses that

the court considered irrelevant and improper matter in determining the severity of

the sentence, the presumption of regularity is overcome, and the sentence is in

violation of defendant’s rights.” Id. at 712, 239 S.E.2d at 465.

In Boone, the trial court “indicated that the sentence imposed was in part

induced by defendant’s exercise of his constitutional right to plead not guilty and

demand a trial by jury.” Id. at 712, 239 S.E.2d at 465. And as a result, the Boone

Court “remanded for entry of a proper judgment, without consideration of defendant’s

refusal to plead guilty to a lesser offense.” Id. at 713, 239 S.E.2d at 465. Similarly,

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this Court has held that a sentence violates a defendant’s rights if the trial court

specifically comments on the refusal of a plea deal. See, e.g., State v. Cannon, 326

N.C. 37, 39–40, 387 S.E.2d 450, 451 (1990) (reversing the trial court’s sentence

because “the trial judge stated his intended sentence even before the evidence was

presented to the jury on the issue of guilt”).

By contrast, if “the record reveals no such express indication of improper

motivation,” and the trial court instead “merely prefaced its pronouncement of

defendant’s sentences with the statement, routinely made at sentencing, that it had,

inter alia, considered the arguments of counsel,” then the sentence imposed will not

violate a defendant’s rights. State v. Johnson, 320 N.C. 746, 753, 360 S.E.2d 676, 681

(1987).

Here, Defendant failed to overcome the presumption of regularity and validity

in the trial court’s sentencing. See Boone, 293 N.C. at 712, 239 S.E.2d at 465.

Although the State mentioned Defendant’s failure to accept a plea offer, there is no

evidence in the record that the trial court specifically commented on or considered

the refusal. Accordingly, there is no evidence that the trial court improperly

considered Defendant’s rejection of the plea offer, so the trial court’s sentencing was

valid. See Johnson, 320 N.C. at 753, 360 S.E.2d at 681.

Moreover, the record reflects the trial court’s comment concerning the

additional drug activity during sentencing was only in immediate response to the

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State, which mentioned the event. The trial court’s only comment on the additional

drug activity was a clarifying question about the date of the alleged activity.

This exchange does not support Defendant’s argument that the trial court

considered irrelevant and improper matter in determining the severity of the

sentence. See id. at 753, 360 S.E.2d at 681. As no evidence suggests that the trial

court considered the additional drug activity when it sentenced Defendant, the trial

court did not error in sentencing Defendant to two consecutive sentences for his

multiple offenses. See id. at 753, 360 S.E.2d at 681.

V. Conclusion

We hold that the trial court did not err by denying Defendant’s motion to

dismiss his charge under subsection 90-95(h)(4), instructing the jury that opioids

were included in the definition of “opium or opiate” at the time of the offense, or by

considering evidence of improper factors at sentencing.

NO ERROR.

Judge ZACHARY concurs

Judge MURPHY dissents in a separate opinion.

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No. COA22-689 – State v. Miller

MURPHY, Judge, dissenting.

I dissent from the Majority’s holding that our interpretation of N.C.G.S. § 90-

95(h)(4) (2017) is bound by our earlier interpretation of N.C.G.S. § 90-95(h)(4) (2016)

in State v. Garrett.

The Majority holds that “the 2017 statute is the same statute interpreted by

Garrett Court,” and, accordingly, “the 2017 statute includes opioids.” It is true that

both N.C.G.S. § 90-95(h)(4) (2016) and N.C.G.S. § 90-95(h)(4) (2017) read, in pertinent

part, as follows:

Any person who sells, manufactures, delivers, transports,

or possesses four grams or more of opium or opiate, or any

salt, compound, derivative, or preparation of opium or

opiate (except apomorphine, nalbuphine, analoxone and

naltrexone and their respective salts), including heroin, or

any mixture containing such substance, shall be guilty of a

felony which felony shall be known as “trafficking in opium

or heroin. . . .”

N.C.G.S. § 90-95(h)(4) (2017). However, the 2016 and 2017 versions of the statute

differ substantially in meaning, as a plain reading of N.C.G.S. § 90-87 (2017), defining

terms “[a]s used in this Article[,]” provides different definitions for “opiates” and

“opioids,” which are not present in N.C.G.S. § 90-87 (2016).

“Where . . . the statute, itself, contains a definition of a word used therein, that

definition controls, however contrary to the ordinary meaning of the word it may be.”

In re Clayton-Marcus Co., 286 N.C. 215, 219 (1974). Despite the clear application of

the “definitions” in N.C.G.S. § 90-87 to the whole Article, and despite the clear change

STATE V. MILLER

MURPHY, J., dissenting.

between the 2016 and 2017 statutes’ definitions, the Majority characterizes the 2017

statute as nothing more than a “repetition of the same language” used in the 2016

statute.

For the purposes of the 2016 statute, the following definition applied to the

term “opiate”:

(18) “Opiate” means any substance having an addiction-

forming or addiction-sustaining liability similar to

morphine or being capable of conversion into a drug having

addiction-forming or addiction-sustaining liability. It does

not include, unless specifically designated as controlled

under G.S. 90-88, the dextrorotatory isomer of 3-methoxy-

n-methyl-morphinan and its salts (dextromethorphan). It

does include its racemic and levorotatory forms.

N.C.G.S. § 90-87(18) (2016).

However, for the purposes of the 2017 statute, the following definitions applied

to the terms “opiate” and “opioid”:

(18) “Opiate” means any substance having an addiction-

forming or addiction-sustaining liability similar to

morphine or being capable of conversion into a drug having

addiction-forming or addiction-sustaining liability. It does

not include, unless specifically designated as controlled

under G.S. 90-88, the dextrorotatory isomer of 3-methoxy-

n-methyl-morphinan and its salts (dextromethorphan). It

does include its racemic and levorotatory forms.

(18a) “Opioid” means any synthetic narcotic drug having

opiate-like activities but is not derived from opium.

N.C.G.S. § 90-87(18), (18a) (2017).

These definitions, read in concert with N.C.G.S. § 90-95(h)(4), materially alter

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MURPHY, J., dissenting.

the meaning of the 2017 statute from the 2016 statute. As we have not yet

interpreted how the altered definitions which apply to the 2017 version of the statute

may impact the meaning of that statute, stare decisis does not apply to our decision

in Garrett, and we must give effect to the statute’s plain meaning. Fid. Bank v. N.C.

Dep’t of Revenue, 370 N.C. 10, 18 (2017) (“When the language of a statute is clear and

without ambiguity, it is the duty of this Court to give effect to the plain meaning of

the statute, and judicial construction of legislative intent is not required.”); see also

State v. Camp, 286 N.C. 148, 152 (1974).

Unlike the 2017 statute, the 2016 statute, which governed the meaning of

“opiate” in Garrett, did not distinguish between the definitions of “opiates” and

“opioids.” See N.C.G.S. §§ 90-87(17)-(19) (2016). In fact, the statute in effect on the

date of the commission of the offense in Garrett did not mention the word “opioids” at

all. Id. In the absence of any mention of “opioids” in the statute defining categories

of controlled substances, it was unclear whether the term “opiate” in N.C.G.S. § 90-

95(h)(4) was intended to be inclusive of “opioids.” Consequently, we determined that

the statute was ambiguous as to the meaning of “opiate.” Garrett, 277 N.C. App. at

500 (“Here, the meaning of the term ‘opiate’ as used in [N.C.G.S.] § 90-95(h)(4) in

2016 was ambiguous, as it was susceptible to more than one reasonable

interpretation.”). When interpreting an ambiguous statute, we look not only to the

language, but also to the “purpose of the statute and the intent of the legislature in

its enactment” to give the statute its appropriate meaning. Fid. Bank, 370 N.C. at

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STATE V. MILLER

MURPHY, J., dissenting.

18. In Garrett, we looked outside of the statutory text to determine the General

Assembly’s intended meaning of the term “opiate” and ultimately concluded that

fentanyl qualified as an opiate, despite being a synthetic opioid within the meaning

of N.C.G.S. § 90-95(h)(4) (2016), because the General Assembly intended for the

definition of “opiate” to be construed broadly. Garrett, 277 N.C. App. at 497-500.

Here, however, two distinct definitions unambiguously separate “opioids” from

“opiates,” and additional consideration of legislative intent would be inappropriate.

According to the plain language of N.C.G.S. § 90-87 and N.C.G.S. § 90-95 in 2017, it

is unambiguous that Defendant’s alleged conduct did not constitute a violation of the

trafficking statute under which he was charged and convicted. Our General

Assembly’s distinction in N.C.G.S. § 90-87 between these two categories of substances

indicates that “opioids” such as the hydrocodone tablets are not synonymous with the

“opiates” or “opium” then encompassed by N.C.G.S. § 90-95(h)(4).

When the “plain reading of [a] statute creates a [perceived] loophole” that

seems to contradict the legislature’s intended purpose, it is not this Court’s role to

remedy this loophole. Wake Radiology Diagnostic Imaging LLC v. N.C. Dep’t of

Health & Human Servs., 279 N.C. App. 673, 675 (2021). In Wake Radiology, we held

such a loophole “is not a concern for this Court. We interpret the law as it [was]

written. If that interpretation results in an unintended loophole, it is the legislature’s

role to address it.” Id.

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STATE V. MILLER

MURPHY, J., dissenting.

The 2016 statute we interpreted in Garrett is not identical to the 2017 statute

which we are called upon to interpret in this case. Accordingly, the principle of stare

decisis does not apply, and our holding in Garrett does not bind our holding here. It

is clear from the plain statutory language in the 2017 statute that “opioids” were to

be differentiated from “opiates.” Although the State does not raise any argument as

to the public policy impact of interpreting N.C.G.S. § 90-95(h)(4) not to encompass

Defendant’s conduct between 1 December 2017 and 30 November 2018, to the extent

that such impact might be present, it is not our role to remedy this loophole.

I would reverse the trial court’s denial of Defendant’s motion to dismiss the

trafficking in opium by possession charge and vacate Defendant’s conviction for this

offense based on the State’s failure to provide substantial evidence that the

acetaminophen-hydrocodone tablets seized from Defendant’s house constituted

“opium” or “opiates.” Accordingly, I would dismiss Defendant’s argument regarding

the trial court’s jury instruction on the trafficking in opium by possession charge as

moot. See State v. Angram, 270 N.C. App. 82, 88 (2020) (“Because we must reverse

the judgment, we need not address [the] defendant’s other issue on appeal.”).

Finally, Defendant only raises prejudicial concerns regarding the trial court’s

alleged consideration of improper sentencing factors based on its decision not to

consolidate Defendant’s trafficking judgments and to run Defendant’s sentences

consecutively rather than concurrently. Defendant does not claim to have suffered

any other prejudice at sentencing. Reversal of Defendant’s conviction for trafficking

5

STATE V. MILLER

MURPHY, J., dissenting.

in opium by possession would resolve any alleged prejudice caused by running his

sentences consecutively or by declining to consolidate his judgments, as Defendant

would remain sentenced on a single conviction. Therefore, I would dismiss this

argument as moot. Cf. State v. Wright, 342 N.C. 179, 181 (1995) (holding that a

defendant sentenced to life imprisonment could not have been prejudiced by any

alleged errors for which the only prejudicial impact would be to render capital

punishment inappropriate).

I respectfully dissent.

6