State v. LuÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-80
Filed: 19 November 2019
Catawba County, No. 13 CRS 056704
STATE OF NORTH CAROLINA,
v.
WEIPENG “JIMMY” LU, Defendant.
Appeal by Defendant from judgments entered 18 September 2018 by Judge
Gregory R. Hayes in Catawba County Superior Court. Heard in the Court of Appeals
5 June 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Matthew
Kraus, for the State.
The Epstein Law Firm, PLLC, by Drew Nelson, for defendant-appellant.
MURPHY, Judge.
A jury found Defendant, Weipeng “Jimmy” Lu, guilty of felony possession of a
Schedule I controlled substance (Methylone), misdemeanor possession of marijuana,
and misdemeanor possession of drug paraphernalia. Defendant argues that his
probation terms exceed the statutory maximum and that the trial court committed
plain error by giving jury instructions that vary from the indictment. After careful
review, we vacate and remand for resentencing and hold that the trial court did not
commit plain error.
STATE V. LU
Opinion of the Court
BACKGROUND
At a traffic checkpoint, Sergeant Amanda Efird (“Efird”) screened a vehicle in
which Defendant was a passenger. Efird detected “[t]he overwhelming odor of
marijuana emitting from the vehicle,” and Defendant confirmed the presence of
marijuana. Efird proceeded to search the vehicle with another officer’s assistance.
Defendant told Efird that the marijuana was located “in a bag behind the driver’s
seat,” and Efird located a drawstring bag, which Defendant professed to own along
with its contents.1 Within the drawstring bag, the officer discovered two sealable
plastic bags containing marijuana, a hookah, a “snort straw,” and a beer can. The
beer can had been altered to serve as an unscrewable container, and inside Efird
found “two white crystallized substances”—later identified as Methylone—and a
Lorazepam tablet.
Defendant was indicted on three offenses, and one indictment specified “an
altered beer can” as the sole basis for a possession of drug paraphernalia charge. At
trial, the judge gave instructions regarding the possession of drug paraphernalia
charge, and, although only the “altered beer can” was named in the paraphernalia
indictment, the instructions did not specify the item(s) deemed to be drug
paraphernalia.
1Some disagreement emerged at trial as to whether Defendant intended to communicate that
he owned all of the bag’s contents, or only some.
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Opinion of the Court
The jury found Defendant guilty of all charges, including possession of drug
paraphernalia. He received a suspended sentence of 6-17 months for the felony.
Defendant also received two consecutive sentences of 120 days for the two
misdemeanor possession offenses. Each sentence was suspended pending a probation
period of 36 months and a 12-day split active sentence was imposed for the felony. If
activated, the sentences were to run consecutively: the felony sentence first and then
the misdemeanor possession sentences.
ANALYSIS
A. Probation Sentencing Error and Clerical Error
Defendant argues the trial court violated N.C.G.S. § 15A-1343.2(c)(2) when it
placed him on 36 months’ probation for his misdemeanor convictions. We agree.
We review alleged statutory errors de novo. State v. Wilkerson, 223 N.C. App.
195, 200, 733 S.E.2d 181, 184 (2012). On review, “[w]hen a trial court acts contrary
to a statutory mandate, the error ordinarily is not waived by the defendant’s failure
to object at trial.” State v. Hucks, 323 N.C. 574, 579, 374 S.E.2d 240, 244 (1988)
(emphasis omitted). The statutory mandate, in this case, restricts the probationary
period for misdemeanants sentenced to intermediate punishment, and that time
must be between 12 and 24 months “[u]nless the court makes specific findings that
longer or shorter periods of probation are necessary . . . .” N.C.G.S. § 15A-1343.2(d)(2)
(2017). When a “trial court [does] not make specific findings that a longer period of
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Opinion of the Court
probation [is] necessary,” we remand. State v. Wheeler, 202 N.C. App. 61, 71, 688
S.E.2d 51, 57 (2010); see also State v. Love, 156 N.C. App. 309, 576 S.E.2d 709 (2003).
Here, Defendant argues that the record lacks specific findings to justify a
36-month probation period. The State does not disagree and our review of the record
supports Defendant’s argument. Thus, the probation period set at trial is vacated
and remanded.
Defendant also argues that the trial court erred by issuing written judgments
containing clerical errors, including misnumbering the prior conviction points and
conviction numbers. The State does not oppose this argument. However, if a
judgment containing a clerical error is vacated, then the clerical error is moot. See
Shaner v. Shaner, 216 N.C. App. 409, 410, 717 S.E.2d 66, 68 n.2 (2011) (noting “this
clerical error has no impact on our minimum contacts analysis and, in light of our
reversal of the order, [defendant]’s argument on this point is moot.”). As we are
remanding to the trial court for resentencing, clerical errors contained in the
judgments can be addressed at that time.
B. Plain Error
Defendant argues that the trial court erred when its jury instructions did not
identify the item that served as the basis for Defendant’s drug paraphernalia charge.
Defendant did not object to the possession of drug paraphernalia jury instruction at
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Opinion of the Court
trial and we review for plain error. N.C. R. App. P. 10(a)(4); State v. Odom, 307 N.C.
655, 659, 300 S.E.2d 375, 378 (1983). The standard for plain error is well-established:
For error to constitute 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. Moreover, because
plain error is to be applied cautiously and only in the
exceptional case, the error will often be one that seriously
affects the fairness, integrity or public reputation of
judicial proceedings.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal marks and
citations omitted). We find no plain error in this case.
We have held that “it is error, generally prejudicial, for the trial judge to permit
a jury to convict upon some abstract theory not supported by the bill of indictment.”
State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980). We have “found that
a trial court’s jury instructions which vary from the allegations of the indictment
might constitute error where the variance is regarding an essential element of the
crime charged.” State v. Lark, 198 N.C. App. 82, 92, 678 S.E.2d 693, 700-01 (2009).
A “trial court’s jury instructions [are] fundamentally erroneous [when] the jury [is]
instructed on a theory based on a different subsection from the subsection under
which the defendant was charged in the indictment.” Id. at 92, 678 S.E.2d at 701
(citing State v. Williams, 318 N.C. 624, 631, 350 S.E.2d 353, 357 (1986)). In State v.
Williams, the trial court committed fundamental error when the indictment charged
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Opinion of the Court
the defendant with rape by force under N.C.G.S. § 14-27.2(a)(2), but the trial court
instructed the jury on the elements for rape of a victim under the age of 13, which
falls under N.C.G.S. § 14-27.2(a)(1).2 Williams, 318 N.C. at 628, 350 S.E.2d at 356.
Although two crimes may share similar elements, the trial court cannot give the jury
instructions for a separate crime unspecified in the indictment. See Lark, 198 N.C.
App. at 92, 678 S.E.2d at 700-01.
Yet, the instructions need not mirror the indictment in at least three respects.
First, a “trial judge is not required to instruct the jury with any greater particularity
upon any element of the offense than is necessary to enable the jury to apply the law
with respect to such element to the evidence bearing thereon.” State v. Spratt, 265
N.C. 524, 527, 144 S.E.2d 569, 572 (1965). Second, nor does the trial judge need “to
state, summarize, or recapitulate the evidence, or to explain the application of the
law to the evidence . . . .” State v. Wallace, 104 N.C. App. 498, 504, 410 S.E.2d 226,
230 (1991). Finally, additional instructions “beyond the essential elements of the
crime sought to be charged are irrelevant and may be treated as surplusage.” State
v. Bollinger, 192 N.C. App. 241, 246, 665 S.E.2d 136, 139 (2008), aff’d per curiam, 363
N.C. 251, 675 S.E.2d 333 (2009). We reasoned that “[t]he gist of the offense is carrying
a concealed weapon” and “the additional language, ‘to wit: a Metallic set of Knuckles’
2 Effective 1 December 2015, this statute was recodified as § 14-27.21 by S.L. 2015-181, § 3(a).
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STATE V. LU
Opinion of the Court
. . . is mere surplusage and not an essential element of the crime of carrying a
concealed weapon.” Id., 665 S.E.2d at 139-40.
Our holding in McNair is particularly instructive on surplus language in jury
instructions. In that case, the defendant was charged with possession of burglary
tools and argued that “the indictment on the charge of possession of burglary tools
only identified the pry bar and the bolt cutters as implements of housebreaking in
[d]efendant’s possession,” but “the trial court nevertheless instructed the jury that it
could find [d]efendant guilty if it found that he possessed either the pry bar, the bolt
cutters, or the work gloves.” State v. McNair, 253 N.C. App. 178, 188-189, 799 S.E.2d
631, 640 (2017), review dismissed, cert. denied, 370 N.C. 77, 803 S.E.2d 394 (2017).
We held that “[t]he mere fact that the court mentioned three implements of
housebreaking rather than two [did] not constitute error[]” because “the trial court
properly instructed the jury as to both essential elements of the offense.” Id. at 190-
191, 799 S.E.2d at 641.
In short, jury instructions must materially align with the indictment just as
the indictment must align with the crime.
The relevant crime in this case, possession of drug paraphernalia, consists of
three essential elements: (1) “any person to knowingly use, or to possess with intent
to use,” (2) “drug paraphernalia” (3) “to . . . package, store, . . . or conceal a controlled
substance other than marijuana which it would be unlawful to possess . . . .” N.C.G.S.
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Opinion of the Court
§ 90-113.22(a) (2017) (emphasis added). Possession of marijuana drug paraphernalia
is now a separate offense. See N.C.G.S. § 90-113.22A (2017) (making it a crime “for
any person to knowingly use, or to possess with intent to use, drug paraphernalia to
. . . package, . . . store, . . . or conceal marijuana . . . .”).3
Here, the indictment charged Defendant with “Possession of Drug
Paraphernalia”:
III. POSSESSION OF DRUG PARAPHERNALIA
The jurors for the State upon their oath present that on or
about the date of offense shown and in the county named
above the defendant named above unlawfully and willfully
did knowingly possess with intent to use drug
paraphernalia, an altered beer can, for the purpose of
packaging, storing, or concealing a controlled substance
which it would be unlawful to possess. This act was in
violation of the law referenced above.
As in McNair, the superseding indictment charged the Defendant with all essential
elements of the drug paraphernalia offense by asserting that Defendant (1)
“unlawfully and willfully did knowingly possess with intent to use” (2) “drug
paraphernalia” (3) “for the purpose of packaging, storing, or concealing a controlled
substance which it would be unlawful to possess.” Naming a specific item of drug
paraphernalia was “mere surplusage.” See Bollinger, 192 N.C. App. at 246, 665
S.E.2d at 139-40.
3 N.C.G.S. § 90-113.22A became effective 1 December 2014 after passage of S.L. 2014-199.
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STATE V. LU
Opinion of the Court
Next, the trial court’s jury instructions for drug paraphernalia possession
stated:
The defendant has been charged with unlawfully
and knowingly possess with intent to use drug
paraphernalia. For you to find the defendant guilty of this
offense the State must prove three things beyond a
reasonable doubt.
First, that the defendant possessed certain drug
paraphernalia. Drug paraphernalia means all equipment,
products and materials of any kind that are used to
facilitate or intended or designed to facilitate violations of
the Controlled Substances Act.
Second, that the defendant did this knowingly. A
person possessed drug paraphernalia knowingly when the
defendant is aware of its presence and has either by
himself or together with others both the power and intent
to control the disposition or use of said paraphernalia.
And third, that the defendant did so with the intent
to use said drug paraphernalia in order to package, store
or conceal a controlled substance which would be unlawful
to possess.
Methylone is a controlled substance in North
Carolina that is unlawful to possess.
Marijuana is a controlled substance in North
Carolina that is unlawful to possess.
This instruction gave the jury the essential elements for possession of drug
paraphernalia but added an alternate element for possession of marijuana drug
paraphernalia. Unlike the gloves in McNair that were within the sphere of
housebreaking implements, marijuana paraphernalia is not within the sphere of drug
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Opinion of the Court
paraphernalia under N.C.G.S. § 90-113.22. Indeed, possession of marijuana drug
paraphernalia is in violation of N.C.G.S. § 90-113.22A, which is a section entirely
separate from possession of drug paraphernalia. This permitted the jury to convict
under N.C.G.S. § 90-113.22A, which is an alternate theory from the possession of
drug paraphernalia indictment under N.C.G.S. § 90-113.22. Thus, naming marijuana
in the instructions varied from the indictment and was in error.
Having found error by the trial court, we must now determine whether
after examination of the entire record, the error had a
probable impact on the jury’s finding that the defendant
was guilty. Moreover, because plain error is to be applied
cautiously and only in the exceptional case, the error will
often be one that seriously affects the fairness, integrity or
public reputation of judicial proceedings.
Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (internal marks and citations omitted).
“It is the rare case in which an improper instruction will justify reversal of a criminal
conviction when no objection has been made in the trial court.” State v. Tirado, 358
N.C. 551, 574, 599 S.E.2d 515, 532 (2004) (quoting Henderson v. Kibbe, 431 U.S. 145,
154, 52 L. Ed. 2d 203, 212 (1977)). A defendant bears the “burden of showing that the
trial court’s inclusion of [an alternative theory] in the jury instruction had any
probable impact on the jury’s verdict.” State v. Martinez, 253 N.C. App. 574, 582, 801
S.E.2d 356, 361 (2017).
Here, Defendant has a sole surviving contention for plain error: “by instructing
the jury on the illegality of Methylone and marijuana, the trial court invited the jury
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Opinion of the Court
to consider the items associated with marijuana.” The marijuana-related items
include “the drawstring bag, the smaller bags containing the marijuana, and the glass
jar and bag containing the marijuana residue.”
Upon review of the Record, three facts presented during trial undercut any
perceived probable impact on the jury verdict under plain error review. First, Efird
gave substantially more testimony regarding the “altered beer can” and its contents
than the other containers. Although all bags in question were discussed throughout
the trial, they were never discussed in detail beyond basic features, with the bags
directly containing the marijuana described only as “Ziploc bag[s]” designed to
contain a “half sandwich” each. By contrast, the “altered beer can” was the subject of
focused and specific questions, with descriptions detailing the manner in which it was
discovered as well as its weight and temperature relative to a typical beer can. The
jury was also given a demonstration of how it unscrewed. Second, the marijuana
was entered into evidence still inside the plastic bags, indicating that the bag was
part and parcel of the marijuana possession; the “altered beer can,” meanwhile, was
an independent exhibit. Finally, the drawstring bag was not entered into evidence
at all. As such, the likelihood that the jury understood either the plastic bags or the
drawstring bag to be the “paraphernalia” used to “package, maintain, store, or
conceal” any controlled substance is limited.
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STATE V. LU
Opinion of the Court
Similarly, it is uncontroverted that the “altered beer can,” explicitly named in
the possession of drug paraphernalia indictment, contained the Methylone and no
marijuana. The jury found that Defendant was in possession of Methylone, and it is
probable the jury also concluded that Defendant possessed the “altered beer can” that
stored the Methylone. It is illogical that the jury simultaneously concluded that the
can stored marijuana.
Furthermore, even if the jury did consider the plastic or drawstring bags
paraphernalia, the fact that it convicted Defendant on the Schedule I charge for a
drug contained exclusively in the “altered beer can” strongly suggests that the jury
also believed that Defendant possessed the can itself—a can designed, unlike the
other items, for the specific purpose of containing and concealing drugs.
The instruction’s prejudicial impact was not probable. Thus, because
Defendant has failed to show that the trial court’s error did not have a probable
impact on the jury’s finding of guilt, there was no plain error to award a new trial.
CONCLUSION
We vacate in part and remand for resentencing, which will also address any
alleged clerical errors. In addition, although we agree that the trial court erred in
adding marijuana to the possession of drug paraphernalia instruction, Defendant
has failed to show this error had a probable impact on the jury’s finding of guilt to
award a new trial.
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STATE V. LU
Opinion of the Court
VACATED IN PART AND REMANDED FOR RESENTENCING; NO PLAIN
ERROR IN PART.
Judges TYSON and YOUNG concur.
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