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State v. Miller

Supreme Court of North Carolina

June 9, 2017

STATE OF NORTH CAROLINA
v.
AUSTIN LYNN MILLER

          Heard in the Supreme Court on 14 February 2017.

         On discretionary review pursuant to N.C. G.S. § 7A-31 of a unanimous decision of the Court of Appeals, ___ N.C.App. ___, 783 S.E.2d 512 (2016), vacating a judgment entered on 5 February 2015 by Judge Eric C. Morgan in Superior Court, Watauga County.

          Joshua H. Stein, Attorney General, by Joseph L. Hyde, Assistant Attorney General, for the State-appellant.

          Jeffrey William Gillette for defendant-appellee.

          ERVIN, Justice.

         On 12 June 2013, the General Assembly enacted legislation that, effective 1 December 2013, made it "unlawful for any person" to "[p]ossess a pseudoephedrine product if the person has a prior conviction for the possession or manufacture of methamphetamine, " with any person convicted of this offense to "be punished as a Class H felon." Act of June 12, 2013, ch. 124, secs. 1, 3, 2013 N.C. Sess. Laws 291, 291-93 (codified at N.C. G.S. § 90-95(d1)(1)(c)).[1] Prior to the enactment of N.C. G.S. § 90-95(d1)(1)(c), any person aged eighteen or older was entitled to purchase "at retail" up to "3.6 grams of any pseudoephedrine products[2] per calendar day" and up to "9 grams of pseudoephedrine products within any 30-day period, " N.C. G.S. § 90-113.53 (2015), [3] as long as the purchaser furnished appropriate photo identification and a current valid residential address and signed a form attesting to the validity of his or her personal information and other information that could be accessed by law enforcement officers, see id. §§ 90-113.52 (2015), -113.53. The ultimate issue presented for our consideration in this case is whether N.C. G.S. § 90-95(d1)(1)(c), as applied to defendant, worked a deprivation of defendant's right to due process of law under the federal constitution. After careful consideration of the record evidence in light of the applicable legal principles, we conclude that defendant's as-applied challenge to the constitutionality of N.C. G.S. § 90-95(d1)(1)(c) lacks merit and reverse the decision of the Court of Appeals, State v. Miller, ___ N.C.App. ___, ___, 783 S.E.2d 512, 523-24 (2016), to the contrary.

         On 3 October 2012, Judge R. Stuart Albright entered a judgment in Ashe County File Nos. 12 CrS 248, 11 CrS 50918, 11 CrS 50919, and 11 CrS 50920 sentencing defendant to a term of sixteen to twenty months of imprisonment, with this sentence being suspended and with defendant being placed on supervised probation for a period of thirty-six months, based upon defendant's convictions for possession of a methamphetamine precursor with the intent to distribute (File No. 12 CrS 248), maintaining a vehicle or dwelling for the purpose of selling or delivering a controlled substance (File No. 11 CrS 50918), possession of methamphetamine (File No. 11 CrS 50919), and possession of drug paraphernalia (File No. 11 CrS 50920). On 5 January 2014, defendant purchased "Allergy Congestion Relief D-ER tabs, " which contained 3.6 grams of pseudoephedrine, from a Walmart pharmacy in Boone. On 7 January 2014, Detective John Hollar of the Watauga County Sheriff's Office examined the National Precursor Log Exchange, which is an electronic database administered by the National Association of Drug Diversion Investigators that tracks pseudoephedrine purchases, N.C. G.S. § 90-113.52A (2015), and determined that defendant had made this pseudoephedrine purchase. In view of the fact that Detective Hollar knew that defendant had previously been convicted of possessing methamphetamine, he obtained the issuance of a warrant for defendant's arrest. On 4 August 2014, the Watauga County grand jury returned a bill of indictment charging defendant with "possess[ing] an immediate precursor chemical, pseudoephedrine, having a prior conviction for the possession of methamphetamine, to wit: The defendant was convicted of Possession of Methamphetamine in Ashe County, File Number 11 CRS 50919, on 1 October 2012."[4]

         On 4 February 2015, defendant filed a motion in which he requested the trial court to declare N.C. G.S. § 90-95(d1)(1)(c) unconstitutional on the grounds that punishing him for violating this newly enacted statutory provision contravened his federal due process rights as enunciated in Lambert v. California, 355 U.S. 225, 2 L.Ed.2d 228 (1957). In support of this contention, defendant argued that N.C. G.S. § 90-95(d1)(1)(c) had criminalized the otherwise innocent act of possessing a pseudoephedrine product for a subset of felons to which defendant belonged despite the fact that the purchase of such substances by individuals like defendant had been entirely lawful little more than a month earlier and that the State's failure to provide adequate notice of this change in law constituted a federal due process violation like that identified in Lambert. In addition, defendant asserted that federal due process principles required that a mens rea or scienter element be imported into N.C. G.S. § 90-95(d1)(1)(c) in light of Lambert; Morissette v. United States, 342 U.S. 246, 96 L.Ed. 288 (1952); and Liparota v. United States, 471 U.S. 419, 85 L.Ed.2d 434 (1985). For that reason, in the event that this case proceeded to trial, defendant argued that the trial court would be required to instruct the jury that, in order to return a verdict of guilty, the jury would have to find beyond a reasonable doubt that defendant had the specific intent to violate the law consisting of proof that defendant "had knowledge that it was illegal to purchase [a pseudoephedrine product] because he had a meth[amphetamine] conviction."

         In response, the State argued that N.C. G.S. § 90-95(d1)(1)(c) resembles N.C. G.S. § 14-415.1, which provides, in pertinent part, that "[i]t shall be unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm or any weapon of mass death and destruction" and which has repeatedly been upheld by North Carolina courts. N.C. G.S. § 14-415.1(a) (2015). More specifically, the State asserted that N.C. G.S. § 90-95(d1)(1)(c), like N.C. G.S. § 14-415.1, merely requires an "intent to act"; that the dangers posed by methamphetamine are similar to those posed by firearms in the possession of felons; and that the similarities between these two statutes demonstrate the constitutionality of N.C. G.S. § 90-95(d1)(1)(c). Additionally, the State asserted that defendant's specific intent argument amounted to a claim that "ignorance of the law should be an excuse." At the conclusion of the pretrial hearing, the trial court denied defendant's motion to declare N.C. G.S. § 90-95(d1)(1)(c) unconstitutional "without prejudice to later arguments at the charging conference as to jury instructions."

         At the jury instruction conference held near the conclusion of defendant's trial, defendant reiterated his request that the trial court instruct the jury concerning the necessity for a showing that he had acted with specific intent to violate the law using the "instruction from the Liparota case which tracked an earlier federal pattern jury instruction." Ultimately, the State and defendant agreed that the trial court would instruct the jury utilizing N.C. P.I. Crim. 120.10, which defines intent, 1 N.C. P.I.- Crim. 120.10 (June 2012), and N.C. P.I. Crim. 261.55, which defines the showing that the State was required to make in order to convict defendant of the substantive offense with which he had been charged, 3 N.C. P.I.-Crim. 261.55 (June 2014). In light of that agreement, the trial court instructed the jury that:

Intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred. You arrive at the intent of a person by such just and reasonable deductions from the circumstances proven as a reasonably prudent person would ordinarily draw therefrom.
The defendant has been charged with the possession of a pseudoephedrine product with a prior conviction of the possession of methamphetamine. For you to find the defendant guilty of this offense, the State must prove two things beyond a reasonable doubt: First, that the defendant possessed a pseudoephedrine product. And, second, that the defendant has a prior conviction for the possession of methamphetamine.
If you find from the evidence beyond a reasonable doubt that the defendant possessed a pseudoephedrine product and has a prior conviction for the possession of methamphetamine, then it would be your duty to return a verdict of guilty. If you do not so find, or have a reasonable doubt as to one or more of these things, then it would be your duty to return a verdict of not guilty.

         At the conclusion of its deliberations, the jury returned a verdict convicting defendant as charged. Based upon the jury's verdict, the trial court entered a judgment sentencing defendant to a term of six to seventeen months of imprisonment, with this sentence having been suspended and with defendant having been placed on supervised probation for a period of twenty-four months. Defendant successfully sought review of the trial court's judgment by filing a petition seeking the issuance of a writ of certiorari with the Court of Appeals. Miller, ___ N.C.App. at ___, 783 S.E.2d at 516.

         In seeking relief from the trial court's judgment before the Court of Appeals, defendant argued that N.C. G.S. § 90-95(d1)(1)(c), as applied to him, violated his due process rights. In support of this contention, defendant argued that, in instances, like this one, in which a state has rendered otherwise innocent and lawful behavior subject to significant criminal penalties, due process considerations require either that scienter or mens rea be shown in order to prove guilt or, in the alternative, that the State establish that defendant had fair warning that a previously lawful act was now subject to the criminal sanction. Defendant claimed that he reasonably believed that he had the right to lawfully purchase pseudoephedrine products on 5 January 2014, that he reasonably lacked any knowledge that the law had changed effective 1 December 2013, that he did not intend to violate the law by purchasing an allergy medication, and that punishing him as a felon for purchasing a product containing pseudoephedrine under such circumstances was fundamentally unfair. For that reason, defendant asserted that guilt of the offense made punishable by N.C. G.S. § 90-95(d1)(1)(c) should require proof that defendant knew that his actions were unlawful or, in the absence of such a scienter or mens rea requirement, that the State's failure to notify him and other similarly situated individuals that they were prohibited from purchasing products containing pseudoephedrine as a precondition for subjecting them to the criminal sanction for acting in that manner rendered the relevant statutory provision unconstitutional.

         In response, the State argued that, since N.C. G.S. § 90-95(d1)(1)(c) does not fall within the narrow category of crimes for which knowledge that the prohibited conduct is unlawful is required, defendant's ignorance of the prohibited nature of his conduct does not preclude a finding of criminal liability. In the State's view, N.C. G.S. § 90-95(d1)(1)(c) is a straightforward and easily understood statutory provision rather than a "highly technical" tax or currency statute of the sort that requires proof that the defendant knew that his or her conduct was unlawful, citing Bryan v. United States, 524 U.S. 184, 194-95, 141 L.Ed.2d 197, 207 (1998). Moreover, the State argued that the exception to the general rule that proof that the defendant knew of the unlawfulness of his or her conduct is not required in order to establish the defendant's guilt set out in Lambert only applies in the event that the challenged statutory provision criminalizes "wholly passive" conduct and that defendant's decision to purchase pseudoephedrine cannot be characterized in that manner. Although proof of defendant's guilt in this case does require a showing that defendant knew that he had a prior methamphetamine possession conviction and that the substance that he possessed contained pseudoephedrine, the relevant statutory provision cannot be reasonably construed to require proof that defendant knew that it was unlawful for him to possess pseudoephedrine as a precondition for a finding of guilt.

         The Court of Appeals began its discussion of defendant's challenges to the trial court's judgment by noting that the extent, if any, to which the General Assembly intended to include a specific intent or scienter element in N.C. G.S. § 90-95(d1)(1)(c) depends upon the manner in which the relevant statutory language should be construed.[5] Miller, ___ N.C.App. at ___, 783 S.E.2d at 516. Given that N.C. G.S. § 90-95(d1)(1)(c) fails to explicitly provide for a specific intent or mens rea element and that the General Assembly has included such language in defining the other offenses listed under N.C. G.S. § 90-95(d1), id. at ___, 783 S.E.2d at 516-17 (discussing N.C. G.S. §§ 90-95(d1)(1)(a)-(b) and 90-95(d1)(2)(a)-(b)), the Court of Appeals concluded that the General Assembly had " ' intentionally and purposely' " excluded "an intent element" from N.C. G.S. § 90-95(d1)(1)(c), id. at ___, 783 S.E.2d at 517 (quoting State v. Watterson, 198 N.C.App. 500, 506, 679 S.E.2d 897, 900 (2009) (quoting N.C. Dep't of Revenue v. Hudson, 196 N.C.App. 765, 768, 675 S.E.2d 709, 711 (2009))). Although "any possession of a controlled substance offense contains an implied knowledge element, to wit, that the defendant must know he possesses the controlled substance and must also know the identity of the substance, " id. at ___ n.3, 783 S.E.2d at 517 n.3 (citing State v. Galaviz-Torres, 368 N.C. 44, 52, 772 S.E.2d 434, 439 (2015) (discussing State v. Coleman, 227 N.C.App. 354, 742 S.E.2d 346, disc. rev. denied, 367 N.C. 271, 752 S.E.2d 466 (2013))), the Court of Appeals concluded that the General Assembly intended for N.C. G.S. § 90-95(d1)(1)(c) "to be exactly what its plain language indicates: a strict liability offense without any element of intent, " id. at, 783 S.E.2d at 517.

         After rejecting defendant's contention that N.C. G.S. § 90-95(d1)(1)(c) should be construed to require proof that defendant knew that he was not entitled to purchase products containing pseudoephedrine, the Court of Appeals addressed defendant's as-applied challenge to the constitutionality of that statutory provision. Id. at, 783 S.E.2d at 517-23. Despite its recognition "that methamphetamine manufacture and use is a significant law enforcement and public health problem which demands serious criminal penalties, " id. at ___, 783 S.E.2d at 519-20, the Court of Appeals concluded that, "in light of . . . Lambert and Liparota, " N.C. G.S. § 90-95(d1)(1)(c) "is unconstitutional as applied to [defendant], " id. at ___, 783 S.E.2d at 520, given that "[p]ossession of pseudoephedrine products is an innocuous and entirely legal act for the majority of people in our State, including most convicted felons, " id. at, 783 S.E.2d at 520, and that "possessing allergy medications containing pseudoephedrine, " unlike the possession of "illegal drugs, " "hand grenades, " or "dangerous acids, " "is an act that citizens, including convicted felons, would reasonably assume to be legal, " id. at, 783 S.E.2d at 520 (citing Liparota, 471 U.S. at 426, 85 L.Ed.2d at 440). Prior to the enactment of N.C. G.S. § 90-95(d1)(1)(c), the statutory provisions regulating the purchase of products containing pseudoephedrine required the provision of notice of the lawfulness of particular purchases at the point of sale, id. at ___, 783 S.E.2d at 520; however, violations of N.C. G.S. § 90-95(d1)(1)(c) can occur without the provision of any such point of sale notice even though such purchases would be lawful "for most people, including the vast majority of convicted felons, " id. at, 783 S.E.2d at 520. "Simply put, " the Court of Appeals reasoned, "there were no 'circumstances which might move one to inquire as to' a significant change in the [Controlled Substances Act's] requirements nor any notice to [defendant] that the new [provision] had transformed an innocent act previously ...


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