State v. Lofton , 372 N.C. 216 ( 2019 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 143PA18
Filed 10 May 2019
STATE OF NORTH CAROLINA
v.
RAMELLE MILEK LOFTON
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 816 S.E.2d 207 (2018), finding no error in
part and vacating in part a judgment entered on 20 July 2016 by Judge Martin B.
McGee in Superior Court, Wayne County. Heard in the Supreme Court on 5 March
2019.
Joshua H. Stein, Attorney General, by Joseph L. Hyde, Assistant Attorney
General, for the State-appellant.
William D. Spence for defendant-appellee.
ERVIN, Justice.
The issue before the Court in this case is whether an indictment returned for
the purpose of charging defendant Ramelle Milek Lofton with manufacturing
marijuana is fatally defective because it fails to allege that defendant acted with an
“intent to distribute.” After careful consideration of the record in light of the
applicable law, we reverse the Court of Appeals’ decision to vacate defendant’s
manufacturing marijuana conviction and remand this case to the Court of Appeals
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Opinion of the Court
for consideration of defendant’s challenge to the sufficiency of the evidence to support
that conviction.
On 20 January 2015, officers of the Goldsboro Police Department obtained the
issuance of a warrant authorizing a search of defendant’s residence. While executing
this search warrant, investigating officers discovered loose marijuana seeds and
stems, a marijuana grinder, a digital scale, cigar wrappers, and clear plastic bags
with green residue in a dresser and aluminum foil-lined walls and a light hanging
from a hanger above a blue plastic container that had dirt in its corners, a container
lid into which circular holes had been cut, and a stack of perforated Styrofoam cups
in a closet. In addition, investigating officers seized a bag of fertilizer, planting rocks,
and a book containing instructions for growing marijuana from the closet. After these
items had been discovered, defendant admitted to the investigating officers that he
had created the growing facility, that the materials discovered in the residence
belonged to him, and that he had attempted to grow marijuana five or six years
earlier.
On 2 May 2016, the Wayne County grand jury returned a bill of indictment
charging defendant with manufacturing marijuana, possession of drug
paraphernalia, and possession of marijuana. In the indictment returned against
defendant for the purpose of charging him with manufacturing marijuana, the grand
jury alleged that defendant “unlawfully, willfully and feloniously did manufacture
[marijuana] . . . by producing, preparing, propagating and processing a controlled
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Opinion of the Court
substance.” The charges against defendant came on for trial before the trial court
and a jury at the 18 July 2016 criminal session of Superior Court, Wayne County. On
20 July 2016, the jury returned a verdict convicting defendant of attempting to
manufacture marijuana and possessing marijuana and acquitting defendant of
possessing drug paraphernalia. Based upon the jury’s verdict, the trial court
consolidated defendant’s convictions for judgment and sentenced defendant to a term
of six to seventeen months imprisonment, suspended defendant’s sentence, and
placed him on supervised probation for a period of twenty-four months. Defendant
noted an appeal to the Court of Appeals from the trial court’s judgment.
In seeking relief from the trial court’s judgment before the Court of Appeals,
defendant argued that the trial court had erred by denying his motion to dismiss the
manufacturing marijuana charge for insufficiency of the evidence. On 1 May 2018,
the Court of Appeals filed an opinion finding no error in defendant’s conviction for
possessing marijuana and vacating defendant’s attempted manufacturing marijuana
conviction on the grounds that the indictment underlying that conviction was fatally
defective given the failure of the manufacturing marijuana indictment to allege that
defendant had acted with an “intent to distribute.” State v. Lofton, ___ N.C. App. ___,
___, 816 S.E.2d 207, 211 (2018).
In reaching this result, the Court of Appeals relied upon this Court’s decision
in State v. Brown, 310 N.C. 563, 313 S.E.2d 585 (1984) (citing State v. Childers, 41
N.C. App. 729, 732, 255 S.E.2d 654, 656-57, disc. rev. denied, 298 N.C. 302, 259 S.E.2d
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Opinion of the Court
916 (1979)), which stated that a conviction for manufacturing a controlled substance
“does not require an intent to distribute unless the activity constituting manufacture
is preparation or compounding.” Lofton, ___ N.C. App. at ___, 816 S.E.2d at 210
(emphasis omitted) (quoting Brown, 310 N.C. at 568, 313 S.E.2d at 588). In view of
the fact that the indictment returned against defendant for the purpose of charging
him with manufacturing marijuana “included preparation as a basis” for its
contention that defendant had unlawfully manufactured marijuana, the Court of
Appeals concluded that the indictment “failed to allege a required element—intent to
distribute.” Id. at ___, 816 S.E.2d at 211. As a result, “because the State chose to
allege four separate bases pursuant to which it could attempt to prove [d]efendant’s
guilt of the single count of manufacturing a controlled substance,” the Court of
Appeals concluded that “it was necessary that all four of those bases were alleged
with sufficiency” in the indictment in order “to confer jurisdiction on the trial court
for the manufacturing charge,” with “[t]he omission of the element of intent from the
indictment charging [d]efendant of manufacturing a controlled substance
constitut[ing] a fatal defect.” Id. at ___, 816 S.E.2d at 211.
On 24 May 2018, the State filed a petition seeking discretionary review of the
Court of Appeals’ decision. In its petition, the State argued that “[a]n indictment
alleging a violation of Section 90-95(a)(1) need not contain allegations negating every
statutory exclusion,” citing State v. Land, 223 N.C. App. 305, 311, 733 S.E.2d 588,
592 (2012), aff’d, 366 N.C. 550, 742 S.E.2d 803 (2013) (holding that an indictment
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Opinion of the Court
charging the unlawful delivery of marijuana did not need to allege that the defendant
had received no remuneration on the grounds that, since the defendant’s guilt could
be proved by either evidence of a transfer of more than five grams or a transfer for
remuneration and since, as stated in Land, “the methods of proof set out in [Section]
90-95(b)(2) are mere evidentiary matters, they need not be included in the
indictment” (alterations in the petition)). In addition, the State contended that “it
was not necessary to specify the manner of manufacturing, and the terms ‘producing,
preparing, propagating, and processing’ may be disregarded as surplusage,” citing
State v. Miranda, 235 N.C. App. 601, 607, 762 S.E.2d 349, 354 (2014). According to
the State, even though “intent to distribute is an ‘element’ of manufacturing, in the
sense that the State has to disprove preparation for personal use at trial,” “it does not
follow that intent to distribute is an element, in the sense that an indictment which
omits it is fatally defective.” As a result of the fact that this case represents the first
occasion upon which “the Court of Appeals [found] an indictment for manufacturing
defective for failure to allege intent to distribute” and “created an entirely new rule
for indictments without notice or hearing from either of the parties on appeal,” the
State urged us to grant further review in this case.1 On 5 December 2018, the Court
granted the State’s discretionary review petition.
1 Defendant did not file a response to the State’s discretionary review petition.
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Opinion of the Court
In seeking to persuade us to reverse the Court of Appeals’ decision in this case,
the State begins by arguing that “[a]n indictment need not contain ‘allegations of an
evidentiary nature,’ ” citing N.C.G.S. §15A-924(a)(5) (2015), with such unnecessary
allegations “includ[ing] methods of proving such crimes.” Although an indictment
must, “[e]xcept where a short form is authorized,” “allege all the essential elements
of the offense,” citing State v. Jerrett, 309 N.C. 239, 259, 307 S.E.2d 339, 350 (1983),
“[e]videntiary matters need not be alleged,” quoting State v. Coker, 312 N.C. 432, 437,
323 S.E.2d 343, 347 (1984). In addition, the State asserts that “[t]he use of a
conjunctive . . . does not require the State to prove various alternative matters
alleged,” quoting State v Montgomery, 331 N.C. 559, 569, 417 S.E.2d 742, 747 (1992)
(alterations in original). As a result, the State contends that “[a]n indictment is not
fatally defective so long as one of the alternatives stated sufficiently alleges an
offense,” citing State v. Ellis, 368 N.C. 342, 347, 776 S.E.2d 675, 679 (2015).
As the Court of Appeals concluded in Childers, 41 N.C. App. at 732, 255 S.E.2d
at 656-57, and this Court concluded in Brown, 310 N.C. at 568, 313 S.E.2d at 588,
“the offense of manufacturing a controlled substance does not require an intent to
distribute unless the activity constituting manufacture is preparation or
compounding,” id. at 568, 313 S.E.2d at 588. Arguing in reliance upon the Court of
Appeals’ decision in Land, 223 N.C. App. at 310-11, 733 S.E. 2d at 592, the State
contends that, since the “ultimate fact” that the State must establish to support a
manufacturing marijuana conviction is “manufacture” and since the various methods
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Opinion of the Court
of manufacture “are evidentiary matters that need not be included in the indictment,”
citing Coker, 312 N.C. at 437, 323 S.E.2d at 347 (stating that “[e]videntiary matters
need not be alleged”), there was no need for the indictment returned for the purpose
of charging defendant with manufacturing marijuana in this case to allege that
defendant acted with an “intent to distribute.”
Although the indictment returned against defendant for the purpose of
charging him with manufacturing marijuana did allege that he committed the offense
in question “by producing, preparing, propagating and processing” marijuana, the
State contends that these allegations are “harmless surplusage and may properly be
disregarded,” citing State v. Pickens, 346 N.C. 628, 646, 488 S.E.2d 162, 172 (1997).
Even if alleging that defendant acted with the “intent to distribute” was necessary to
charge defendant with manufacturing marijuana by “preparing,” the absence of such
an “intent to distribute” allegation did “not invalidate the indictment” given that
“[a]lleging various methods of proof did not obligate the State to prove each one,”
citing Montgomery, 331 N.C. at 569, 417 S.E.2d at 747, and Ellis, 368 N.C. at 347,
776 S.E.2d at 679. As a result, since “[t]he Court of Appeals’ . . . assertion that the
State must prove each alternative method of proof alleged in the indictment is flatly
contradicted by this Court’s binding precedent,” citing Montgomery, 331 N.C. at 569,
417 S.E.2d at 747, and State v. Birdsong, 325 N.C. 418, 422, 384 S.E.2d 5, 8 (1989),
the State contends that the “Court of Appeals erred in finding the omission [of an
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Opinion of the Court
‘intent to distribute’ allegation] ‘tainted’ the indictment, which sufficiently alleged
manufacture by other means.”
In arguing that the Court should affirm the Court of Appeals’ decision to vacate
his attempted manufacturing marijuana conviction, defendant contends that, “if
‘intent to distribute’ is an element of the crime of manufacturing marijuana by
preparation, and the State chooses to allege manufacturing by preparation, then ‘with
intent to distribute’ must also be alleged within the bill of indictment.” In light of
this Court’s decision in Brown, 310 N.C. at 569, 313 S.E.2d at 588, that “intent to
distribute is an essential element of the felony of manufacturing marijuana by
preparation” and the fact that “preparation is included within the manufacturing
indictment,” defendant contends that an “ ‘intent to distribute’ must also be
included.” In defendant’s view, the State’s reliance upon the Court of Appeals’
decision in Land, 223 N.C. App. at 310-11, 733 S.E. 2d at 592, is misplaced given that
Land “involved delivery of a controlled substance rather than manufacturing[.]”
After conceding that the Court of Appeals’ logic appears to conflict with this Court’s
decision in Montgomery, 331 N.C. at 569, 417 S.E.2d at 747, concerning the effect of
the use of disjunctive language in indictments, defendant contends that this apparent
error does not necessitate a decision to overturn the Court of Appeals’ decision in light
of the Court of Appeals’ express statement that the language in question “d[id] not
impact [its] jurisdictional analysis.” As a result, given that the State chose “to word
the indictment as it did,” defendant asserts that the Court of Appeals correctly held
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Opinion of the Court
that “the jury was allowed to convict [d]efendant on a theory of manufacturing a
controlled substance that was not supported by a valid indictment.”
According to well-established North Carolina law, “a valid bill of indictment is
essential to the jurisdiction of the trial court to try an accused for a felony.”2 State v.
Campbell, 368 N.C. 83, 86, 772 S.E.2d 440, 443 (2015) (quoting State v. Sturdivant,
304 N.C. 293, 308, 283 S.E.2d 719, 729 (1981) (citations omitted)). N.C.G.S. § 15A-
924(a)(5) requires that a criminal pleading contain “[a] plain and concise factual
statement in each count which, without allegations of an evidentiary nature, asserts
facts supporting every element of a criminal offense and the defendant’s commission
thereof with sufficient precision clearly to apprise the defendant . . . of the conduct
which is the subject of the accusation.” N.C.G.S. § 15A-924(a)(5) (2017). Thus, “an
indictment ‘must allege lucidly and accurately all the essential elements of the
offense endeavored to be charged.’ ” State v. Hunt, 357 N.C. 257, 267, 582 S.E.2d 593,
600 (citation omitted), cert. denied, 539 U.S. 985, 124 S. Ct. 44, 156 L. Ed. 2d 702
(2003). Put another way, an indictment suffices to charge a defendant with a criminal
offense if the defendant would be guilty of committing a crime if the jury found beyond
a reasonable doubt that the defendant had acted in the manner described in the
2 As a result of the fact that an indictment will support a conviction “of the crime
charged therein or of a less degree of the same crime, or of an attempt to commit the crime
so charged, or of an attempt to commit a less degree of the same crime,” N.C.G.S. § 15-170
(2017), defendant’s conviction for the attempted manufacture of marijuana rested upon the
indictment returned against him for the purpose of charging him with manufacturing
marijuana.
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Opinion of the Court
indictment. “A valid indictment, among other things, serves to ‘identify the offense’
being charged with certainty, to ‘enable the accused to prepare for trial,’ and to
‘enable the court, upon conviction, to pronounce [the] sentence.’ ” State v. Rankin,
371 N.C. 885, 886, 821 S.E.2d 787, 790 (2018) (quoting State v. Saults, 294 N.C. 722,
726, 242 S.E.2d 801, 805 (1978)). The facial validity of an indictment “should be
judged based solely upon the language of the criminal pleading in question without
giving any consideration to the evidence that is ultimately offered in support of the
accusation contained in that pleading.” Ellis, 368 N.C. at 347, 776 S.E.2d at 679.
“The alleged failure of a criminal pleading to charge the essential elements of a stated
offense is an error of law that this Court reviews de novo.” State v. Williams, 368
N.C. 620, 622, 781 S.E.2d 268, 270 (2016) (citing Sturdivant, 304 N.C. at 308-11, 283
S.E.2d at 729-31). As a result, the ultimate issue for our consideration in this case is
whether the allegations contained in the indictment returned against defendant for
the purpose of charging him with manufacturing marijuana, if sustained by proof,
suffice to establish his guilt of the offense in question.
N.C.G.S. § 90-95(a)(1) makes it unlawful “[t]o manufacture, sell or deliver, or
possess with intent to manufacture, sell or deliver, a controlled substance,” N.C.G.S.
§ 90-95(a)(1) (Supp. 2018), with “manufacture” being defined as including “the
production, preparation, propagation, compounding, . . . or processing of a controlled
substance by any means,” but excluding “the preparation or compounding of a
controlled substance by an individual for his own use,” id. § 90-87(15) (2017). In light
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of the relevant statutory language, this Court held in Brown that “the offense of
manufacturing a controlled substance does not require an intent to distribute unless
the activity constituting manufacture is preparation or compounding.” Brown, 310
N.C. at 568, 313 S.E.2d at 588. As a result, this Court has clearly held that, to
establish a defendant’s guilt of manufacturing a controlled substance by “preparing”
or “compounding” that controlled substance, the State must prove beyond a
reasonable doubt that the defendant “prepared” or “compounded” the controlled
substance in question with the “intent to distribute” it.
Although the State argues that the ultimate fact that the State must prove to
establish defendant’s guilt of manufacturing a controlled substance in violation of
N.C.G.S. § 90-95(a)(1) is that defendant “manufactured” the controlled substance in
question and that the specific manner in which defendant “manufactured” that
controlled substance need not be alleged in a valid indictment, we need not determine
whether this argument is or is not valid to properly decide this case. As we have
already noted, the indictment returned against defendant for the purpose of charging
him with manufacturing marijuana alleged the defendant “did manufacture
[marijuana] . . . by producing, preparing, propagating and processing” it. Thus, the
indictment at issue in this case alleged that defendant manufactured marijuana in
four different ways, one of which required a showing of an “intent to distribute” in
order for the State to obtain a conviction and three of which did not.
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Opinion of the Court
After acknowledging that certain of the ways in which defendant allegedly
manufactured marijuana did not require proof that defendant acted with an “intent
to distribute,” the Court of Appeals concluded that “it was necessary that all four of
those bases were alleged with sufficiency to confer jurisdiction on the trial court for
the manufacturing charge.” Lofton, ___ N.C. App. at ___, 816 S.E.2d at 211 (emphasis
omitted). The result reached by the Court of Appeals with respect to this issue is,
however, precluded by our prior indictment-related jurisprudence, which, as the
State notes, establishes that “[t]he use of a conjunctive in the indictment does not
require the State to prove various alternative matters alleged,” Montgomery, 331 N.C.
at 569, 417 S.E.2d at 747 (citing State v. Williams, 314 N.C. 337, 356, 333 S.E.2d 708,
721 (1985)), and that “[t]he use of the conjunctive form to express alternative theories
of conviction is proper,” Birdsong, 325 N.C. at 422-23, 384 S.E.2d at 7-8 (first citing
State v. Swaney, 277 N.C. 602, 612, 178 S.E.2d 399, 405, cert. denied, 402 U.S. 1006,
91 S. Ct. 2199, 29 L. Ed. 2d 428 (1971); then citing State v. Moore, 315 N.C. 738, 743,
340 S.E.2d 401, 404 (1986) (stating that, while “the indictment may allege more than
one purpose for the kidnapping, the State has to prove only one of the alleged
purposes in order to sustain a conviction of kidnapping”); and then citing State v.
Gray, 292 N.C. 270, 293, 233 S.E.2d 905, 920 (1977) (opining that, “[w]here an
indictment sets forth conjunctively two means by which the crime charged may have
been committed, there is no fatal variance between indictment and proof when the
state offers evidence supporting only one of the means charged”)). In the same vein,
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we recently held, in a case in which the State alleged that “injury to personal property
was committed against multiple entities, at least one of which is capable of owning
property,” that the “pleading is not facially invalid.” Ellis, 368 N.C. at 347, 776 S.E.2d
at 679. Assuming, without in any way deciding, that a valid indictment charging that
a defendant manufactured a controlled substance by “preparing” or “compounding”
must allege that the defendant acted with an intent to distribute, the indictment
returned against defendant for the purpose of charging him with manufacturing a
controlled substance in this case sufficed to give the trial court jurisdiction to enter
judgment against defendant based upon his conviction for manufacturing marijuana
given that it also alleged that defendant manufactured marijuana by “producing,”
“propagating,” and “processing” it.
Although both the Court of Appeals and defendant assert that a decision to
uphold the facial validity of the indictment returned against defendant for the
purpose of charging him with manufacturing marijuana would allow the jury “to
convict [d]efendant on a theory of manufacturing a controlled substance that was not
supported by a valid indictment,” Lofton, ___ N.C. App. at ___, 816 S.E.2d at 211, this
concern rests upon a failure to recognize the difference between a challenge to the
facial validity of an indictment, which raises a jurisdictional issue, and a challenge to
the trial court’s instructions, which does not. Simply put, the concern expressed by
the Court of Appeals and defendant is properly raised by challenging the trial court’s
decision to instruct the jury that it could convict defendant on the basis of a theory
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Opinion of the Court
not supported by the indictment rather than on the basis of a challenge to the facial
validity of the indictment. However, given that the issue before us in this case is
whether the indictment returned against defendant for the purpose of charging him
with manufacturing marijuana was fatally defective rather than whether the trial
court erroneously instructed the jury on the basis of a theory that had not been
alleged in the relevant indictment, the concern expressed by both the Court of
Appeals and defendant has no bearing upon the proper resolution of the issue that is
before us in this case.
Thus, for all of these reasons, we hold that the indictment returned against
defendant for the purpose of charging him with manufacturing marijuana was not
fatally defective and that the Court of Appeals erred by reaching a contrary
conclusion. As a result, the Court of Appeals’ decision is reversed and this case is
remanded to the Court of Appeals for consideration of defendant’s challenge to the
sufficiency of the evidence to support his attempted manufacturing marijuana
conviction.
REVERSED AND REMANDED.
Justice DAVIS did not participate in the consideration or decision of this
case.
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