in the Court of Appeals 21 March 2017.
by defendant from judgment entered 15 February 2016 by Judge
Marvin K. Blount III in Beaufort County Superior Court Nos.
13 CRS 52279, 52289.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Daniel Snipes Johnson, for the State.
Michael E. Casterline for defendant-appellant.
defendant failed to specifically and distinctly contend on
appeal that the trial court's jury instruction amounted
to plain error, we consider this argument waived. Where a
fatally defective indictment could not be cured by the
State's material amendment prior to trial, we arrest
judgment on and vacate the conviction. Lastly, where the
evidence at trial demonstrated termination, not continuation,
of manufacturing of methamphetamine in more than one
location, two counts of manufacturing of methamphetamine do
not constitute a continuing offense, and the trial court
committed no error in denying defendant's motions to
September 2013, officers at the Beaufort County Sheriff's
Office received information that Randall Burmeister and an
unknown female had been making numerous pseudoephedrine
("PSE") purchases at area pharmacies. PSE is a
precursor chemical in the manufacture of methamphetamine and
is also an ingredient in some over-the-counter cold and
allergy drugs. Purchases of products containing PSE are
tracked through the National Precursor Log Exchange
("NPLEX") database. In order to buy a product
containing PSE, an individual must present identification at
the pharmacy. The individual's ID is scanned and entered
into the NPLEX database, along with the amount of PSE
purchased. If the purchase exceeds a permissible threshold
amount, the sale will be blocked.
analyzing NPLEX records, investigators determined that
Burmeister's companion was defendant Susan Marie Maloney.
Defendant and Burmeister met in Illinois in 2008, shortly
after Burmeister was released from prison after serving seven
years for manufacturing methamphetamine.
request of investigators, a Walgreens pharmacist contacted
police when Burmeister and Maloney purchased a PSE product on
7 October 2013. Under police surveillance, the couple left
the store in a blue Taurus and drove to a residence on River
Road, where officers confronted the couple in the driveway as
they got out of their car.
Burmeister and defendant were not the owners of the
residence, but were renting a room. Burmeister gave police
permission to search their room, and the house's owner,
Ricky Brass, permitted police to search the entire house and
the blue Taurus, which he also owned. In the back seat of the
car, Lieutenant Russell Davenport found a bag containing bags
of salt, which is used in the last process of cooking
methamphetamine. In the trunk of the car, Lieutenant
Davenport found a black garbage bag. Upon opening it, he was
overcome with fumes. The police immediately secured the scene
and called the State Bureau of Investigation
("SBI"). Burmeister and defendant were taken into
defendant, who had recently had heart surgery, was taken to
the emergency room with chest pain. During the hours she was
in the hospital, defendant told police officers that
Burmeister had been arrested for making methamphetamine in
Illinois. Defendant spent several hours in the hospital
before being taken to the magistrate's office and served
with an arrest warrant.
next day, the SBI and local officers returned to the River
Road residence. Among the items found inside the garbage bag
in the trunk of the car were empty cans of solvent, a
container of lye, an empty cold pack, tubing, a peeled
lithium battery, a coffee filter, a funnel, a glass jar, and
plastic bottles containing various residues and liquids.
Inside the passenger compartment, officers also seized a
container of table salt, needle-nosed pliers, a can of
solvent, and a package of PSE decongestant tablets. Officers
also searched defendant and Burmeister's rented storage
unit. There, they found another black garbage bag containing,
inter alia, a cold pack, an empty pack of starter
fluid, coffee filters, peeled lithium batteries, empty
blister packs of nasal decongestant containing
pseudoephedrine hydrochloride, and various bottles containing
off-white crystalline material. At trial, State's
witnesses testified that many of the items found in both the
trunk of the Taurus and the storage unit could be used in the
manufacture of methamphetamine using the "one-pot"
or "shake-and-bake" method. Ultimately, three
plastic bottles-two from the garbage bag found in the trunk
of the car and one recovered from the garbage bag in the
storage unit-were found to contain concentrations of
April 2014, defendant was indicted by a Beaufort County grand
jury in case 13 CRS 52279 for one count of manufacturing
methamphetamine and one count of possession of drug
paraphernalia. Defendant was also indicted in case 13 CRS
52289 for one count of manufacturing methamphetamine, one
count of possession of methamphetamine precursor materials
(salt, sulfuric acid, lithium, ammonium nitrate and
pseudoephedrine), and one count of possession of
methamphetamine. All offenses were alleged to have occurred
on or about 8 October 2013.
cases were called for jury trial on 8 February 2016 before
the Honorable Marvin K. Blount III in Beaufort County
Superior Court. The district attorney made a motion to amend
the second count in the indictment in case 13 CRS 52289, the
charge of possession of precursors to methamphetamine, which
motion the court granted.
close of the State's evidence, defendant made a motion to
dismiss, which the court denied. Defendant presented
evidence, testifying in her own defense and calling
additional witnesses. Among the witnesses who testified on
behalf of defendant was Burmeister, who had previously pled
guilty shortly after his arrest for his involvement in the
same incident underlying this appeal.
told the court that upon moving from Illinois to North
Carolina, he resumed making methamphetamine using the
"one-pot" or "shake-and-bake" method. He
testified that the garbage bags found in the car and the
storage unit both held trash from separate batches of
methamphetamine. He also testified that, after
defendant's surgery, he would use her to help him obtain
the PSE he needed to make methamphetamine. His practice was
to give defendant a dose of her medication that made her
"doped up." Then, he would take defendant to a
pharmacy, put her driver's license in her hand,
"grab the card [for the PSE] off the shelf, stick it in
her hand, and walk her up to the window because she
didn't know what was going on. She didn't know where
we were." A pharmacy tech from the Walmart pharmacy also
testified for defendant, who recalled seeing defendant
several times in the fall of 2013. According to the tech,
defendant was always accompanied by Burmeister, who presented
defendant's identification and requested the medication.
The tech testified that defendant appeared "sickly,
" "a little disoriented, " and seemed not to
know what she needed, or what she was buying.
close of all the evidence, the court again denied
defendant's motion to dismiss. Defendant was found guilty
of each charge and the judge entered two consolidated
judgments. In 13 CRS 52279, defendant received a sentence of
fifty-eight to eighty-two months, and in 13 CRS 52289,
defendant received another sentence of fifty-eight to
eighty-two months, to be served at the expiration of the
first sentence. Defendant appeals.
appeal, defendant contends the trial court (I) erred in
entering judgment on two counts of manufacturing
methamphetamine where the trial court failed to instruct the
jury on two distinct offenses; (II) lacked jurisdiction to
enter judgment for possession of precursor materials; and
(III) erred in entering judgment for two ...