State v. Simpson

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NO. COA13-253 NORTH CAROLINA COURT OF APPEALS Filed: 15 October 2013 STATE OF NORTH CAROLINA v. Onslow County Nos. 11 CRS 53247, 11 CRS 50622, 11 CRS 50614, 11 CRS 50634, 11 CRS 50635 LADONN EDWARD SIMPSON Appeal by Defendant from judgments entered 9 February 2012 by Judge Jack W. Jenkins in Superior Court, Onslow County. Heard in the Court of Appeals 27 August 2013. Attorney General Roy Cooper, by Special General Thomas M. Woodward, for the State. Deputy Attorney Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for Defendant. McGEE, Judge. Ladonn Edward Simpson ( Defendant ) was found guilty on 9 February 2012 pseudoephedrine of manufacturing limits, methamphetamine, felony conspiracy to exceeding manufacture methamphetamine, maintaining a vehicle that was resorted to by persons using controlled substances or that was used for keeping or selling precursor controlled chemical substances, used to possession manufacture of an immediate methamphetamine, -2possession of methamphetamine, and three counts of trafficking in methamphetamine. Defendant appeals. I. Sufficiency of the Evidence of Maintaining a Vehicle for Keeping or Selling Methamphetamine Defendant motion to argues dismiss the the trial charge court of keeping or selling methamphetamine. erred in denying his a vehicle for maintaining We agree. A. Standard of Review We review 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). The trial court must determine whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense. 347 (2012) State v. Bradshaw, 366 N.C. 90, 93, 728 S.E.2d 345, (internal quotation marks omitted). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The trial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences in the State s favor. Id. at 92, 728 S.E.2d at 347. All evidence, competent or incompetent, must be considered. contradictions or conflicts in the evidence are resolved Any in favor of the State, and evidence unfavorable to the State is not -3considered. Id. at 93, 728 S.E.2d at 347 (internal citations and quotation marks omitted). B. Analysis It shall be unlawful for any person . . . [t]o knowingly keep or maintain any . . . vehicle . . . which is resorted to by persons using controlled substances in violation of this Article for the purpose of using such substances, or which is used for the keeping or selling of the same in violation of this Article[.] N.C. Gen. Stat. § 90-108(a)(7) (2011). [T]his Article refers to Article 5, the North Carolina Controlled Substances Act. The statute provides two ways to show a violation. first statutory alternative requires that the State The prove defendant knowingly allowed others to resort to his dwelling to consume controlled substances. State v. Thompson, 188 N.C. App. 102, 105, 654 S.E.2d 814, 816 (2008). Under the first alternative, the State must prove Defendant knowingly allowed others to resort to his vehicle to use controlled substances. The second statutory alternative requires that defendant knowingly used the dwelling controlled substances. for the keeping or selling Id. at 105, 654 S.E.2d at 817. of Under this alternative, the State must prove Defendant knowingly used the vehicle for the keeping or selling of controlled substances. Jeremy Cox ( Mr. testified for the State. Cox ), an acquaintance of Defendant, Portions of his testimony follow: -4[Defense Attorney]. . . . . [Y]ou told the detectives that you contacted [Defendant] to get more meth, shortly after you got out of jail. [Mr. Cox]. . . . . As I remember, I saw him and he said he had some work. He was a framer or construction man, and he said he had some concrete work, but it never came through. We ended up riding around, getting high. [Defense Attorney]. So you get into trouble for making methamphetamine, and you get out on bond; and then, by your admission, allegedly, you get together with this man and drive around getting high on meth? (Indicating [Defendant].) [Mr. Cox]. That s correct. Mr. Cox further testified as follows: [The State]. You said that you would ride around, getting high. Were you referring to [Defendant] being present during that time? [Mr. Cox]. I m referring to. not sure what you're [The State]. . . . . Have you ever gotten high with [Defendant], on methamphetamines? [Mr. Cox]. Yes. [The State]. Have you ever done so in his vehicle? [Mr. Cox]. Yes. Defendant contends that, even if Mr. Cox used methamphetamine in the vehicle, the State did not establish that anyone else resorted to [the] truck to use -5methamphetamine. Evidence shows that only Mr. Defendant used methamphetamine in the vehicle. statute requires that the State prove Cox and However, the defendant knowingly allowed others to resort to his vehicle to consume controlled substances. Thompson, 188 N.C. App. at 105, 654 S.E.2d at 816 (emphasis added). his vehicle. Defendant cannot allow himself to resort to Our Supreme Court has noted that it does not believe the General Assembly intended resorted to, as used in this statute [N.C.G.S. § 90-108(a)(7)], to include persons who live in the dwelling. State v. Rich, 87 N.C. App. 380, 384, 361 S.E.2d 321, 324 (1987). Similarly, we do not believe the General Assembly intended resorted to, as used in N.C.G.S. §90-108(a)(7), to include persons who own the vehicle at issue. The State presented no evidence, as to the second alternative, that Defendant used the vehicle for the keeping or selling of controlled substances. the evidence shows only that As to the first alternative, Defendant and controlled substances in Defendant s vehicle. Mr. Cox used This evidence is insufficient to show that Defendant allowed others to resort to his vehicle to use controlled substances. The trial court therefore erred in denying Defendant s motion to dismiss the charge of maintaining a vehicle that was resorted to by persons -6using controlled substances or that was used for keeping or selling controlled substances. II. Jury Instructions Defendant next argues the trial court committed plain error in failing to instruct the jury on the intent element of the manufacturing methamphetamine and methamphetamine by manufacture charges. the trafficking in We disagree. A. Standard of Review Because Defendant did not object to the jury instructions at trial, we review for plain error. State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). [T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury s finding that the defendant was guilty. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (alterations in original) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (footnotes omitted)). -7To show plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury s finding that the defendant was guilty. Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (internal citation and quotation marks omitted). B. Analysis The trial court must instruct the jury on the law arising on the evidence. the crime. This includes instruction on the elements of State v. Watterson, 198 N.C. App. 500, 503, 679 S.E.2d 897, 899 (2009). N.C. Gen. Stat. § 90-87 defines manufacture as: the production, preparation, propagation, compounding, conversion, or processing of a controlled substance by any means, whether directly or indirectly, artificially or naturally, or by extraction from substances of a natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis; and manufacture further includes any packaging or repackaging of the substance or labeling or relabeling of its container except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use[.] N.C. Gen. Stat. § 90-87(15) (2011). -8Our Supreme Court held that the offense of manufacturing a controlled substance does not require an intent to distribute unless the activity constituting manufacture is preparation or compounding. 585, 588 State v. Brown, 310 N.C. 563, 568, 313 S.E.2d (1984). When the activity is preparation or compounding, Brown indicates that the offense of manufacturing requires an intent to distribute. The trial court instructed the jury on the charge of trafficking in methamphetamine by manufacture as follows: [D]efendant has been charged with trafficking in methamphetamine, or any liquid mixture containing methamphetamine, which is the unlawful manufacturing of 200 grams or more, but less than 400 grams. . . . For you to find [D]efendant guilty of this offense, the state must prove two things, beyond a reasonable doubt: First, that [D]efendant, acting either by himself or acting together with another person, manufactured methamphetamine or any liquid mixture containing methamphetamine. The manufacture of methamphetamine is the production, preparation, propagation, compounding, conversion or processing of methamphetamine, a controlled substance, either by extraction from substances of natural origin or by chemical synthesis. (emphasis added). The trial court instructed the jury on the manufacture of methamphetamine as follows: [D]efendant has been charged with -9manufacture of methamphetamine, a controlled substance. For you to find [D]efendant guilty of this offense, the state must prove, beyond a reasonable doubt, that [D]efendant manufactured methamphetamine by producing, preparing, propagating, compounding, converting or processing methamphetamine, a controlled substance, either by extraction from substances of natural origin or by chemical synthesis. (emphasis added). Defendant contends that the trial court never explained that the State bore the burden of proving that [Defendant] acted with an intent [Defendant] to distribute manufactured if the jury methamphetamine by determined preparation that or compounding. Despite the inclusion of preparing, preparation in its instructions, instruct on intent to distribute. the compounding, and trial court did not Even assuming arguendo that this omission was error, the omission does not rise to the level of plain error. The evidence indicates that Defendant sold methamphetamine and possessed more than 200 grams of a liquid containing methamphetamine and items consistent with the manufacture of methamphetamine. Mr. Cox testified that Defendant asked, on 26 January 2011, for help making methamphetamine. Mr. Cox explained to the jury how to make methamphetamine, using ammonium nitrate, lye, drain cleaner, propane, pseudoephedrine, and batteries. Mr. Cox -10testified he smelled propane when Defendant picked Mr. Cox up in Defendant s vehicle. ingredients, batteries. They went to several stores to purchase including Sudafed, Coleman fuel, filters, and When officers stopped Mr. Cox and Defendant, Mr. Cox and Defendant had all the ingredients for methamphetamine. Officers found a white powder in a plastic bag in Mr. Cox s pocket. Mr. Cox indicated methamphetamine from Defendant. he purchased the A State Bureau of Investigation agent searched the vehicle the next day. The agent found a syringe, spoon, bag with white powder residue, bucket, propane tank, drain opener, funnel, filtration mask, plastic baggies, a shopping bag containing pseudoephedrine[,] January 2011, empty receipts loose boxes for and boxes pseudoephedrine pseudoephedrine pills, containing kind of a clear liquid[.] of liquid containing methamphetamine. and a of dated 26 glass jar The jar held 210 grams Also in the vehicle was a notebook with Defendant s name written inside the cover. The notebook for contained a picture of a cooking synthesis methamphetamine. The evidence of manufacturing methamphetamine and trafficking in methamphetamine by manufacture was overwhelming. In light of this overwhelming evidence, Defendant failed to demonstrate the requisite prejudice that, after examination of -11the entire record, the error had a probable impact on the jury s finding that the defendant was guilty. Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (internal quotation mark omitted). The trial court did not commit plain error in failing to instruct on the intent to distribute. III. Sentencing Defendant s final argument is that the trial court deprived Defendant of his right against double jeopardy by sentencing him for three trafficking in methamphetamine charges, manufacturing methamphetamine, and possession of methamphetamine based on the same illegal substance. The State argues, without citation to authority, that Defendant failed to preserve his right to appeal the conviction for trafficking by transport because Defendant failed to list it in his proposed issues on appeal. The proposed issues on appeal listed in the record on appeal shall not limit the scope of the issues that an appellant may argue in its brief. App. P. 28(b)(2). Defendant N.C.R. This argument is without merit. acknowledges the holdings regarding double jeopardy of our Supreme Court in State v. Pipkins, 337 N.C. 431, 446 S.E.2d 360 (1994), and State v. Perry, 316 N.C. 87, 340 S.E.2d 450 (1986). [T]he Supreme Court of the United States has held that, where a legislature clearly expresses its intent -12to proscribe and punish exactly the same conduct under two separate statutes, a trial court in a single trial may impose cumulative punishments under the statutes. Pipkins, 337 N.C. at 433-34, 446 S.E.2d at 362 (alteration in original). An examination of the subject, language and history of the statutes indicates that the legislature intended that these offenses be punished separately, even where the offenses are based on the same conduct. Id. at 434, 446 S.E.2d at 362 (no double jeopardy in separate punishments for felonious possession of cocaine and trafficking in cocaine by possession). [P]ossessing, manufacturing, and transporting heroin are separate and distinct offenses. S.E.2d at 461. Perry, 316 N.C. at 103, 340 A defendant may be punished separately for trafficking in heroin by possessing 28 grams or more of heroin, trafficking in heroin by manufacturing 28 grams or more of heroin, and trafficking in heroin by transporting 28 grams or more of heroin even when the contraband separate offense is the same heroin. 461. material in each Id. at 104, 340 S.E.2d at Like heroin, methamphetamine is a controlled substance. N.C. Gen. Stat. § 90-95(b) (2011). Being bound by the decisions in Pipkins and Perry, we hold the trial court did not err in sentencing Defendant separately -13for trafficking in methamphetamine, methamphetamine, and possession of methamphetamine. Reversed in part; no error in part. Judges STEELMAN and ERVIN concur. manufacturing

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