State v. Miranda , 235 N.C. App. 601 ( 2014 )

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.