in the Court of Appeals 22 January 2018.
by Defendant from judgment entered 20 July 2016 by Judge
Martin B. McGee in Superior Court, Wayne County No. 15 CRS
Attorney General Joshua H. Stein, by Assistant Attorney
General Allison A. Angell, for the State.
William D. Spence for Defendant. Mc
Milek Lofton ("Defendant") was indicted 2 May 2016
on charges of manufacturing a controlled substance pursuant
to N.C. Gen. Stat. § 90-95(a)(1), possession of
marijuana, and possession of drug
paraphernalia. These charges arose out of events that
occurred on 20 January 2015, when officers from the Goldsboro
Police Department executed a search warrant for
Defendant's residence. Defendant was tried at the 18 July
2016 criminal session of Wayne County Superior Court. The
jury was instructed on possession of marijuana and drug
paraphernalia, as well as manufacturing a controlled
substance and the lesser included offense of attempting to
manufacture a controlled substance. See State v.
Clark, 137 N.C.App. 90, 96-97, 527 S.E.2d 319, 323
(2000) (attempt is a lesser included offense of the
underlying charge). Defendant was found guilty on 20 July
2016 on the charges of attempting to manufacture a controlled
substance and possession of marijuana. He was acquitted on
the charge of possession of drug paraphernalia. Defendant
Defendant's sole argument, he contends that "[t]he
trial court erred in denying [his] motion to dismiss the
charge of attempting to manufacture a controlled
substance[.]" We agree, though on jurisdictional grounds
not raised by Defendant.
that the indictment charging Defendant with manufacturing
marijuana was fatally defective.
"North Carolina law has long provided that '[t]here
can be no trial, conviction, or punishment for a crime
without a formal and sufficient accusation. In the absence of
an accusation the court acquires no jurisdiction whatever,
and if it assumes jurisdiction a trial and conviction are a
nullity.'" "[W]here an indictment is alleged to
be invalid on its face, thereby depriving the trial court of
[subject matter] jurisdiction, a challenge to that indictment
may be made at any time, even if it was not contested in the
trial court." This Court "review[s] the sufficiency
of an indictment de novo."
State v. Harris, 219 N.C.App. 590, 593, 724 S.E.2d
633, 636 (2012) (citations omitted) (alterations in the
original). Defendant was indicted on the manufacturing charge
by the following relevant language:
[O]n or about the 20th day of January, 2015 in Wayne County,
[Defendant] unlawfully, willfully and feloniously did
manufacture a controlled substance in violation of the North
Carolina Controlled Substances Act, by producing, preparing,
propagating and processing a controlled substance.
The controlled substance in question consisted of
Gen. Stat. § 90-95(a)(1) (2017) is the statute
pertaining to the illegal manufacture of controlled
N.C. G.S. § 90-95(a)(1) makes it unlawful to
"manufacture, sell or deliver, or possess with intent to
manufacture, sell or deliver, a controlled substance."
The intent of the legislature in enacting N.C. G.S. §
90-95(a)(1) was twofold: "(1) to prevent the manufacture
of controlled substances, and (2) to prevent the ...