State v. Gibbs

IN THE SUPREME COURT OF NORTH CAROLINA
No. 402A21
Filed 16 June 2023
STATE OF NORTH CAROLINA
v.
MONTEZ GIBBS
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 2021-NCCOA-607 (unpublished), reversing in part a judgment
entered on 24 September 2019 by Judge Joshua W. Willey Jr. in Superior Court, New
Hanover County. On 1 March 2023, the Supreme Court allowed the State’s petition
for writ of certiorari as to additional issues. Heard in the Supreme Court on 26 April
2023.
Joshua H. Stein, Attorney General, by Zachary K. Dunn, Assistant Attorney
General, for the State-appellant.
Glenn Gerding, Appellate Defender, by Wyatt Orsbon, Assistant Appellate
Defender, for defendant-appellee.
PER CURIAM.
Defendant Montez Gibbs was indicted on 14 January 2019 with one count each
of trafficking opiates by possession, possession with intent to sell or distribute a
Schedule II controlled substance, and possession of drug paraphernalia; and two
misdemeanor counts of resisting, delaying, or obstructing a public officer. The charges
arose out of an incident that occurred on 7 April 2018 when police officers observed
STATE V. GIBBS
Opinion of the Court
Mr. Gibbs moving in between the buildings of the Hillcrest housing community in
Wilmington, North Carolina, and ultimately found a white powdery substance in a
backpack he was carrying. At the close of the evidence during the trial, the trial court
dismissed one misdemeanor count of resisting, delaying, or obstructing a public
officer. Mr. Gibbs was found guilty of the remaining charges. The trial court
consolidated the convictions for sentencing and sentenced Mr. Gibbs to an active term
of seventy to ninety-three months of imprisonment. He appealed to the Court of
Appeals.
In a divided, unpublished opinion, the Court of Appeals reversed the conviction
for trafficking by possession of an opiate on the grounds that the trial court abused
its discretion in ruling that the State’s expert was qualified to testify that fentanyl is
an opiate. State v. Gibbs, 2021-NCCOA-607, ¶¶ 16–21. The State appealed based on
the dissent which would have held that it was not an abuse of discretion to allow the
expert to testify that fentanyl is an opiate. Id. at ¶ 35 (Stroud, C.J., dissenting). The
dissent also noted that the Court of Appeals recently held that “fentanyl ‘does indeed
qualify as an opiate’ as a matter of statutory interpretation.” Id. ¶ 42 (quoting State
v. Garrett, 277 N.C. App. 493, 2021-NCCOA-214, ¶ 16). Garrett involved the version
of the trafficking statute that was in place in 2016, which did not recognize opioids
as a class of controlled substances and listed fentanyl as an opiate. See N.C.G.S. § 90-
90(2) (2015). With the 2018 amendments in effect at the time of the relevant events
at issue in this case, the statute was changed to recognize fentanyl as either an
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STATE V. GIBBS
Opinion of the Court
“opiate[ ] or opioid[ ].” 1 See N.C.G.S. § 90-90(2) (2019).
The Court of Appeals received supplemental briefing on the impact of Garrett
on this case but did not decide whether fentanyl was an opiate as a matter of statutory
interpretation under the version of the trafficking statute that was in place in 2018,
N.C.G.S. § 90-95(h)(4) (2017). The trial court erred in concluding that whether
fentanyl is an opiate is a question of fact. Instead, whether fentanyl was an opiate for
purposes of the trafficking statute in 2018 is a question of law. Because it is a legal
question of statutory interpretation, it was not necessary to have expert testimony to
establish whether fentanyl is an opiate and it was not necessary to have what
otherwise may have been appropriate discovery by the defense of the basis for the
expert’s opinion on that question.
We vacate the opinion of the Court of Appeals and remand to that court for
consideration of whether fentanyl was an opiate as defined by the statutes in effect
at the time of Mr. Gibbs’s actions that are the basis for the conviction and sentence
in this case.
VACATED AND REMANDED.
Justice BERGER did not participate in the consideration or decision of this
case.
1To be clear, N.C.G.S. § 90-95(h)(4), which prohibits the trafficking of opium and
opiates, remained the same between 2016 and the date of Mr. Gibbs’s offense.
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