State v. Autry ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-218
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
STATE OF NORTH CAROLINA
v. Sampson County
Nos. 12 CRS 1593-5; 50683-4
BOBBY GLENN AUTRY
Appeal by defendant from judgments entered 30 October 2013
by Judge Arnold O. Jones in Sampson County Superior Court.
Heard in the Court of Appeals 21 July 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Thomas J. Campbell, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Emily H. Davis, for defendant-appellant.
HUNTER, JR., Robert N., Judge.
Bobby Glenn Autry (“Defendant”) appeals from judgments
entered upon his convictions of three counts of felony
possession of immediate precursor chemical with the intent to
manufacture methamphetamine1 (pseudoephedrine, sulfuric acid, and
1
While the judgment in 12 CRS 1594 and 50684 states “Poss/Dist
Precursor Chemical (pseudoephedrine)” and “Poss/Dist Precursor
Chemical (sulfuric acid)” respectively, the indictments and jury
-2-
ethyl ether), one count of trafficking in methamphetamine, one
count of possession of methamphetamine, and one count of
possession of drug paraphernalia. After careful review, we find
no error.
The State’s evidence tended to show the following facts.
Defendant resided with his mother in a mobile home that was a
two minute walk from his sister Wanda King’s residence.
Detective William Carr of the Sampson County Sherriff’s Office
drove to Ms. King’s residence to determine if a stolen tractor
was on the premises. Upon arrival, the detective saw a metal
building located behind Ms. King’s residence with a surveillance
camera attached to it. He approached the building and found the
door was locked. Defendant was standing inside the building at
the sink. When Defendant saw the detective, he immediately
opened the door. At that point, several agents from the
sheriff’s office arrived on the scene to assist Detective Carr.
After obtaining consent from Ms. King, the officers assisted
with Detective Carr’s search for stolen property by examining
the inside and surroundings of the metal building. They found
instructions were for possession of precursor chemical
(pseudoephedrine; sulfuric acid) with intent to manufacture
methamphetamine.
-3-
47 items of evidence consistent with the manufacture of
methamphetamine, including pseudoephedrine tablets.
Defendant was charged with four counts of possession of
precursor chemical (ethyl ether, sulfuric acid, pseudoephedrine,
lithium); trafficking in methamphetamine; possession of drug
paraphernalia; possession of methamphetamine; and manufacture of
methamphetamine. The charge of manufacturing methamphetamine
was dismissed for insufficient evidence and Defendant was found
not guilty of possession of precursor chemical (lithium) with
intent to manufacture methamphetamine. The trial court
consolidated 12 CRS 1594 and 50684 and sentenced Defendant to 17
to 30 months in prison for possession of precursor chemicals
(pseudoephedrine and sulfuric acid) with intent to manufacture
methamphetamine. That sentence ran consecutively to Defendant’s
70 to 84 month term for trafficking, 17 to 30 month term for
possession of ethyl ether with intent to manufacture
methamphetamine, 60-day term for possession of drug
paraphernalia, and 17 to 30 month sentence, suspended for 36
months of supervised probation, for possession of
methamphetamine.
Defendant’s sole argument on appeal is that the trial court
erred by denying his motion to dismiss the charge of felony
-4-
possession of precursor chemical pseudoephedrine with the intent
to manufacture methamphetamine under N.C. Gen. Stat. § 90-
95(d1)(2)(a) (2013). We disagree.
“Upon review of a motion to dismiss, the court determines
whether there is substantial evidence, viewed in the light most
favorable to the State, of each essential element of the offense
charged and of the defendant being the perpetrator of the
offense.” State v. Lane, 163 N.C. App 495, 499, 594 S.E.2d 107,
110 (2004). “Substantial evidence is such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.” State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585,
587 (1984). “[T]he State is entitled to every reasonable
intendment and every reasonable inference to be drawn therefrom;
contradictions and discrepancies are for the jury to resolve and
do not warrant dismissal[.]” State v. Hill, 365 N.C. 273, 275,
715 S.E.2d 841, 843 (2011) (citation and quotation marks
omitted). If the evidence “is sufficient only to raise a
suspicion or conjecture as to either the commission of the
offense or the identity of the defendant as the perpetrator of
it, the motion for nonsuit should be allowed. This is true even
though the suspicion so aroused by the evidence is strong.” In
-5-
re Vinson, 298 N.C. 640, 656–57, 260 S.E.2d 591, 602 (1979)
(citation omitted).
It is unlawful to (1) possess a precursor chemical with (2)
intent to manufacture methamphetamine. See N.C. Gen. Stat. §
90-95(d1)(2)(a). Defendant is not challenging his constructive
possession of pseudoephedrine, an identified controlled
substance and precursor chemical. See N.C. Gen. Stat. §§ 90-95(d2)(37), 90-87(5) (2013). Instead, Defendant argues that
because he was acquitted of possession of lithium with intent to
manufacture methamphetamine, and because there was no evidence
that he possessed ammonia, the State’s evidence was insufficient
to show that he possessed the pseudoephedrine tablets with
intent to manufacture methamphetamine rather than for personal
use. We are not persuaded.
N.C. Gen. Stat. § 90–87 (15) (2013) 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
-6-
include the preparation or compounding of a
controlled substance by an individual for
his own use[.]
Our Supreme Court has stated that “[i]ntent is an attitude or
emotion of the mind and is seldom, if ever, susceptible of proof
by direct evidence, it must ordinarily be proven by
circumstantial evidence, i.e., by facts and circumstances from
which it may be inferred.” State v. Gammons, 260 N.C. 753, 756,
133 S.E.2d 649, 651 (1963); see also State v. Alderson, 173 N.C.
App. 344, 348, 618 S.E.2d 844, 847 (2005) (holding that intent
to manufacture, sell and deliver methamphetamine could be
inferred by circumstantial evidence including “numerous items .
. . consistent with the manufacture of methamphetamine.”).
Here, taken in the light most favorable to the State, we
conclude that the State presented sufficient evidence from which
a reasonable juror could infer an intent to manufacture
methamphetamine. First, the State submitted into evidence a
laboratory report which stated that the chemical makeup of all
the methamphetamine found in the metal building included
pseudoephedrine. Second, SBI Special Agent Amanda Aharon, a
forensic chemist, testified and confirmed that the
methamphetamine recovered from Defendant was manufactured using
the ammonia method, which requires ethyl ether, sulfuric acid,
-7-
pseudoephedrine, ammonia, and lithium. Additionally, Defendant,
a self-identified methamphetamine cook and user, was convicted
of possession of ethyl ether and sulfuric acid with intent to
manufacture methamphetamine, and lithium batteries were found
close to the pseudoephedrine tablets. Furthermore, the
pseudoephedrine tablets were found in the same location as:
multiple zip-loc plastic bags, 5 containers of salt, drain
cleaner, 3 containers of starter fluid, 2 containers of
isopropyl and denatured alcohol, coffee filters, 3 funnels, a
large amount of plastic tubing, plastic pitchers, plastic
gloves, 2 propane cylinders with torches, a fire extinguisher, 2
digital scales, burnt aluminum foil, and multiple caps and
containers, all of which are items associated with the
manufacture of methamphetamine.
Given the substantial number of incriminating items found
with the pseudoephedrine, as well as Defendant’s admission that
he was a methamphetamine cook, we conclude there was sufficient
evidence for a jury to reasonably infer Defendant possessed the
pseudoephedrine with intent to manufacture methamphetamine,
rather than merely for personal use. Accordingly, we hold the
trial court did not err by denying Defendant’s motion to
dismiss.
-8-
NO ERROR.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).