Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Lofton

Supreme Court of North Carolina

May 10, 2019

STATE OF NORTH CAROLINA
v.
RAMELLE MILEK LOFTON

          Heard in the Supreme Court on 5 March 2019.

         On 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.

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

          William D. Spence for defendant-appellee.

          ERVIN, JUSTICE.

         The 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 conviction.

         On 20 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.

         On 2 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.

         In 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).

         In 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.

         On 24 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.[1] On 5 December 2018, the Court granted the State's discretionary review petition.

         In 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).

         As the 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 distribute."

         Although 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, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.