in the Supreme Court on 5 March 2019.
discretionary review pursuant to N.C. G.S. § 7A-31 of a
unanimous decision of the Court of Appeals, __ N.C.App. __,
816 S.E.2d 207 (2018), finding no error in part and vacating
in part a judgment entered on 20 July 2016 by Judge Martin B.
McGee in Superior Court, Wayne County.
H. Stein, Attorney General, by Joseph L. Hyde, Assistant
Attorney General, for the State-appellant.
William D. Spence for defendant-appellee.
issue before the Court in this case is whether an indictment
returned for the purpose of charging defendant Ramelle Milek
Lofton with manufacturing marijuana is fatally defective
because it fails to allege that defendant acted with an
"intent to distribute." After careful consideration
of the record in light of the applicable law, we reverse the
Court of Appeals' decision to vacate defendant's
manufacturing marijuana conviction and remand this case to
the Court of Appeals for consideration of defendant's
challenge to the sufficiency of the evidence to support that
January 2015, officers of the Goldsboro Police Department
obtained the issuance of a warrant authorizing a search of
defendant's residence. While executing this search
warrant, investigating officers discovered loose marijuana
seeds and stems, a marijuana grinder, a digital scale, cigar
wrappers, and clear plastic bags with green residue in a
dresser and aluminum foil-lined walls and a light hanging
from a hanger above a blue plastic container that had dirt in
its corners, a container lid into which circular holes had
been cut, and a stack of perforated Styrofoam cups in a
closet. In addition, investigating officers seized a bag of
fertilizer, planting rocks, and a book containing
instructions for growing marijuana from the closet. After
these items had been discovered, defendant admitted to the
investigating officers that he had created the growing
facility, that the materials discovered in the residence
belonged to him, and that he had attempted to grow marijuana
five or six years earlier.
May 2016, the Wayne County grand jury returned a bill of
indictment charging defendant with manufacturing marijuana,
possession of drug paraphernalia, and possession of
marijuana. In the indictment returned against defendant for
the purpose of charging him with manufacturing marijuana, the
grand jury alleged that defendant "unlawfully, willfully
and feloniously did manufacture [marijuana] . . . by
producing, preparing, propagating and processing a controlled
substance." The charges against defendant came on for
trial before the trial court and a jury at the 18 July 2016
criminal session of Superior Court, Wayne County. On 20 July
2016, the jury returned a verdict convicting defendant of
attempting to manufacture marijuana and possessing marijuana
and acquitting defendant of possessing drug paraphernalia.
Based upon the jury's verdict, the trial court
consolidated defendant's convictions for judgment and
sentenced defendant to a term of six to seventeen months
imprisonment, suspended defendant's sentence, and placed
him on supervised probation for a period of twenty-four
months. Defendant noted an appeal to the Court of Appeals
from the trial court's judgment.
seeking relief from the trial court's judgment before the
Court of Appeals, defendant argued that the trial court had
erred by denying his motion to dismiss the manufacturing
marijuana charge for insufficiency of the evidence. On 1 May
2018, the Court of Appeals filed an opinion finding no error
in defendant's conviction for possessing marijuana and
vacating defendant's attempted manufacturing marijuana
conviction on the grounds that the indictment underlying that
conviction was fatally defective given the failure of the
manufacturing marijuana indictment to allege that defendant
had acted with an "intent to distribute." State
v. Lofton, __ N.C.App. __,, 816 S.E.2d 207, 211 (2018).
reaching this result, the Court of Appeals relied upon this
Court's decision in State v. Brown, 310 N.C.
563, 313 S.E.2d 585 (1984) (citing State v.
Childers, 41 N.C.App. 729, 732, 255 S.E.2d 654, 656-57,
disc. rev. denied, 298 N.C. 302, 259 S.E.2d 916
(1979)), which stated that a conviction for manufacturing a
controlled substance "does not require an intent to
distribute unless the activity constituting manufacture is
preparation or compounding." Lofton, __
N.C.App. at __, 816 S.E.2d at 210 (emphasis omitted) (quoting
Brown, 310 N.C. at 568, 313 S.E.2d at 588). In view
of the fact that the indictment returned against defendant
for the purpose of charging him with manufacturing marijuana
"included preparation as a basis" for its
contention that defendant had unlawfully manufactured
marijuana, the Court of Appeals concluded that the indictment
"failed to allege a required element-intent to
distribute." Id. at, 816 S.E.2d at 211. As a
result, "because the State chose to allege four
separate bases pursuant to which it could attempt to prove
[d]efendant's guilt of the single count of manufacturing
a controlled substance," the Court of Appeals concluded
that "it was necessary that all four of those
bases were alleged with sufficiency" in the indictment
in order "to confer jurisdiction on the trial court for
the manufacturing charge," with "[t]he omission of
the element of intent from the indictment charging
[d]efendant of manufacturing a controlled substance
constitut[ing] a fatal defect." Id. at, 816
S.E.2d at 211.
May 2018, the State filed a petition seeking discretionary
review of the Court of Appeals' decision. In its
petition, the State argued that "[a]n indictment
alleging a violation of Section 90-95(a)(1) need not contain
allegations negating every statutory exclusion," citing
State v. Land, 223 N.C.App. 305, 311, 733 S.E.2d
588, 592 (2012), aff'd, 366 N.C. 550, 742 S.E.2d
803 (2013) (holding that an indictment charging the unlawful
delivery of marijuana did not need to allege that the
defendant had received no remuneration on the grounds that,
since the defendant's guilt could be proved by either
evidence of a transfer of more than five grams or a transfer
for remuneration and since, as stated in Land,
"the methods of proof set out in [Section] 90-95(b)(2)
are mere evidentiary matters, they need not be included in
the indictment" (alterations in the petition)). In
addition, the State contended that "it was not necessary
to specify the manner of manufacturing, and the terms
'producing, preparing, propagating, and processing'
may be disregarded as surplusage," citing State v.
Miranda, 235 N.C.App. 601, 607, 762 S.E.2d 349, 354
(2014). According to the State, even though "intent to
distribute is an 'element' of manufacturing, in the
sense that the State has to disprove preparation for personal
use at trial," "it does not follow that intent to
distribute is an element, in the sense that an indictment
which omits it is fatally defective." As a result of the
fact that this case represents the first occasion upon which
"the Court of Appeals [found] an indictment for
manufacturing defective for failure to allege intent to
distribute" and "created an entirely new rule for
indictments without notice or hearing from either of the
parties on appeal," the State urged us to grant further
review in this case. On 5 December 2018, the Court granted the
State's discretionary review petition.
seeking to persuade us to reverse the Court of Appeals'
decision in this case, the State begins by arguing that
"[a]n indictment need not contain 'allegations of an
evidentiary nature, '" citing N.C. G.S.
§15A-924(a)(5) (2015), with such unnecessary allegations
"includ[ing] methods of proving such crimes."
Although an indictment must, "[e]xcept where a short
form is authorized," "allege all the essential
elements of the offense," citing State v.
Jerrett, 309 N.C. 239, 259, 307 S.E.2d 339, 350 (1983),
"[e]videntiary matters need not be alleged,"
quoting State v. Coker, 312 N.C. 432, 437, 323
S.E.2d 343, 347 (1984). In addition, the State asserts that
"[t]he use of a conjunctive . . . does not require the
State to prove various alternative matters alleged,"
quoting State v Montgomery, 331 N.C. 559, 569, 417
S.E.2d 742, 747 (1992) (alterations in original). As a
result, the State contends that "[a]n indictment is not
fatally defective so long as one of the alternatives stated
sufficiently alleges an offense," citing State v.
Ellis, 368 N.C. 342, 347, 776 S.E.2d 675, 679 (2015).
Court of Appeals concluded in Childers, 41 N.C.App.
at 732, 255 S.E.2d at 656-57, and this Court concluded in
Brown, 310 N.C. at 568, 313 S.E.2d at 588, "the
offense of manufacturing a controlled substance does not
require an intent to distribute unless the activity
constituting manufacture is preparation or compounding,"
id. at 568, 313 S.E.2d at 588. Arguing in reliance
upon the Court of Appeals' decision in Land, 223
N.C.App. at 310-11, 733 S.E.2d at 592, the State contends
that, since the "ultimate fact" that the State must
establish to support a manufacturing marijuana conviction is
"manufacture" and since the various methods of
manufacture "are evidentiary matters that need not be
included in the indictment," citing Coker, 312
N.C. at 437, 323 S.E.2d at 347 (stating that
"[e]videntiary matters need not be alleged"), there
was no need for the indictment returned for the purpose of
charging defendant with manufacturing marijuana in this case
to allege that defendant acted with an "intent to
the indictment returned against defendant for the purpose of
charging him with manufacturing marijuana did allege that he
committed the offense in question "by producing,
preparing, propagating and processing" marijuana, the
State contends that these allegations are "harmless
surplusage and may properly be disregarded," citing
State v. Pickens, 346 N.C. 628, 646, 488 S.E.2d 162,
172 (1997). Even if alleging that defendant acted with the
"intent to distribute" was necessary to charge
defendant with manufacturing marijuana by
"preparing," the absence of such an "intent to
distribute" allegation did "not invalidate the
indictment" given that "[a]lleging various methods
of proof did not obligate the State to prove each one,"
citing Montgomery, 331 N.C. at 569, 417 S.E.2d at
747, and Ellis, 368 N.C. at 347, 776 S.E.2d at 679.
As a result, since "[t]he Court of Appeals' . . .
assertion that the State must prove each alternative method
of proof alleged in the indictment is flatly contradicted by
this Court's binding precedent," citing
Montgomery, 331 N.C. at 569, 417 S.E.2d at 747, and
State v. Birdsong, 325 N.C. 418, 422, 384 S.E.2d 5,