              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-851

                                Filed: 16 May 2017

Beaufort County, Nos. 13 CRS 52279, 52289

STATE OF NORTH CAROLINA

             v.

SUSAN MARIE MALONEY


      Appeal by defendant from judgment entered 15 February 2016 by Judge

Marvin K. Blount III in Beaufort County Superior Court. Heard in the Court of

Appeals 21 March 2017.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Daniel
      Snipes Johnson, for the State.

      Michael E. Casterline for defendant-appellant.


      BRYANT, Judge.


      Where 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 dismiss.
                                 STATE V. MALONEY

                                  Opinion of the Court



       In 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.

       By 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.

       At the 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.




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                                 STATE V. MALONEY

                                  Opinion of the Court



      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 custody.

      However, 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.

      The 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



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                                   STATE V. MALONEY

                                   Opinion of the Court



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 methamphetamine.

      On 7 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.

      Defendant’s 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



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                                   Opinion of the Court



52289, the charge of possession of precursors to methamphetamine, which motion the

court granted.

      At the 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.

      Burmeister 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



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                                   Opinion of the Court



that defendant appeared “sickly,” “a little disoriented,” and seemed not to know what

she needed, or what she was buying.

      At the 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.

           _________________________________________________________

      On 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

counts of manufacturing methamphetamine as the crime was a “continuing offense.”

                                            I

      Defendant first argues the trial court erred in entering judgment on two counts

of manufacturing methamphetamine where the trial court failed to instruct the jury

on two distinct offenses. In other words, defendant contends the trial court’s failure

to so instruct functioned to dismiss one of the manufacturing indictments as a matter

of law and, therefore, one conviction arising from that indictment must be vacated.



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                                   STATE V. MALONEY

                                   Opinion of the Court



      Defendant has failed to properly preserve this issue for our review by not

objecting at trial—either during the charge conference or before the jury retired—to

the court’s failure to instruct on what defendant now considers relevant instructions.

Defendant will not now be heard on this issue. “A party may not make any portion

of the jury charge or omission therefrom the basis of an issue presented on appeal

unless the party objects thereto before the jury retires . . . .” N.C. R. App. P. 10(a)(2)

(2017). “Therefore, defendant is entitled only to review pursuant to the plain error

rule.” State v. Call, 349 N.C. 382, 424, 508 S.E.2d 496, 522 (1998) (citation omitted).

             In criminal cases, an issue that was not preserved by
             objection noted at trial and that is not deemed preserved
             by rule or law without any such action nevertheless may be
             made the basis of an issue presented on appeal when the
             judicial action questioned is specifically and distinctly
             contended to amount to plain error.

N.C. R. App. P. 10(a)(4) (2017).

      However, because defendant failed to “specifically and distinctly” argue plain

error on appeal, she has waived appellate review. We deem this assignment of error

waived. See State v. Davis, 202 N.C. App. 490, 497, 688 S.E.2d 829, 834 (2010)

(“[B]ecause [the] [D]efendant did not ‘specifically and distinctly’ allege plain error as

required by [our appellate rules], [the] [D]efendant is not entitled to plain error




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                                      STATE V. MALONEY

                                       Opinion of the Court



review of this issue.” (quoting State v. Dennison, 359 N.C. 312, 312–13, 608 S.E.2d

756, 757 (2005)).1

                                               II

       Next, defendant argues the trial court lacked jurisdiction to enter judgment for

possession of precursor chemicals because the indictment for that offense was fatally

defective and the State’s attempt to cure the defect involved a substantial alteration

to the indictment. In other words, defendant contends that because the indictment

could not be cured at trial by amendment, the trial court lacked jurisdiction as to this

offense and defendant’s conviction for possession of methamphetamine precursor

materials should be vacated. We agree.

       “Although defendant did not object at trial to the facial inadequacy of the

precursor indictment, ‘[a] challenge to the facial validity of an indictment may be

brought at any time, and need not be raised at trial for preservation on appeal.’ ”

State v. Oxendine, ___ N.C. App. ___, ___, 783 S.E.2d 286, 289 (2016) (alteration in

original) (quoting State v. LePage, 204 N.C. App. 37, 49, 693 S.E.2d 157, 165 (2010)).

“[W]e review the sufficiency of an indictment de novo.” Id. (quoting State v. McKoy,

196 N.C. App. 650, 652, 675 S.E.2d 406, 409 (2009)).

       “To be valid ‘an indictment must allege every essential element of the criminal

offense it purports to charge.’ ” Id. (quoting State v. Billinger, 213 N.C. App. 249, 255,


       1 Further, we reject defendant’s attempt to recast this issue on appeal as structural error
requiring de novo review and dismissal as a matter of law.

                                              -8-
                                  STATE V. MALONEY

                                  Opinion of the Court



714 S.E.2d 201, 206 (2011)). “A conviction based on a flawed indictment must be

arrested.” State v. De La Sancha Cobos, 211 N.C. App. 536, 540, 711 S.E.2d 464, 468

(2011) (citing State v. Outlaw, 159 N.C. App. 423, 428, 583 S.E.2d 625, 629 (2003)).

      In State v. Oxendine, the indictment charging the defendant with possessing

an immediate precursor chemical with intent to manufacture methamphetamine or

possessing precursor chemicals “knowing, or having reasonable cause to believe,” that

the precursor chemicals will be used to manufacture methamphetamine

             fail[ed] to allege that [the] defendant, when he possessed
             those materials, intended to use them, knew they would be
             used, or had reasonable cause to believe they would be used
             to manufacture methamphetamine. The indictment
             contain[ed] nothing about [the] defendant’s intent or
             knowledge about how the materials would be used.

___ N.C. App. at ___, 783 S.E.2d at 289 (emphasis added). Instead, the indictment in

Oxendine alleged that the defendant “unlawfully, willfully and feloniously did possess

[precursor chemicals] used in the manufacture of methamphetamine.”                 Id.

Accordingly, this Court arrested judgment on the defendant’s conviction of possession

of a precursor chemical because, “[w]ithout an allegation that [the] defendant

possessed the required intent, knowledge, or cause to believe, the indictment fail[ed]

to allege an essential element of the crime.” Id. at ___, 783 S.E.2d at 290.

      We agree with defendant, and the State acknowledges, that State v. Oxendine

is directly applicable to the instant case. Here, on 9 February 2016 during pretrial

motions, the district attorney made a motion to amend the second count in the


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                                  STATE V. MALONEY

                                  Opinion of the Court



indictment in case 13 CRS 52289, the charge of possession of precursor materials

used to produce methamphetamine:

             [THE STATE:] . . . In this case, we’re requesting the
             language be substituted--knowing or having reasonable
             cause to believe that the immediate precursor chemical
             would be used to manufacture methamphetamine, a
             controlled substance.

             THE COURT: Okay. All right. The State’s motion is
             allowed.

As a result, Count II of the indictment in case 13 CRS 52289, was amended (the

district attorney’s handwritten addition is underlined), to read as follows:

             The jurors for the State upon their oath present that on or
             about the date shown above and in the county named
             above, the defendant named above unlawfully, willfully
             and did knowingly possess salt, sulfuric acid, lithium,
             amonium [sic] nitrate and pseudoephedrine, such items
             being precursors used to produce methamphetamine know
             or have reason to know and cause to believe that the
             immediate precursor chemical would be used to
             manufacture a controlled subs [sic].

      Similar to the indictment in Oxendine, here, Count II of the indictment in case

13 CRS 52289 also fails to allege an essential element of the crime, namely,

defendant’s intent or knowledge “about how the materials would be used,” i.e., “for

manufacture of methamphetamine by h[er]self or someone else.” See id. at ___, ___,

783 S.E.2d at 289, 290.

      “The Criminal Procedure Act provides that ‘[a] bill of indictment may not be

amended.’ ” De La Sancha Cobos, 211 N.C. App. at 541, 711 S.E.2d at 468 (alteration


                                         - 10 -
                                  STATE V. MALONEY

                                  Opinion of the Court



in original) (quoting N.C. Gen. Stat. § 15A-923(e) (2009)). An “amendment” is “any

change in the indictment which would substantially alter the charge set forth in the

indictment.” Id. (quoting State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224

(1996)). Where an amendment to an indictment involves an element of the crime

charged, it is a “material” one. See id. at 542, 711 S.E.2d at 468–69.

       Here, the State attempted to materially amend Count II of the indictment in

case 13 CRS 52289 before trial by adding that defendant knew or had reason to know

that   the immediate precursor       materials    would be used to       manufacture

methamphetamine, a controlled substance.          This language, which functioned to

establish an essential element of the crime of possession of precursor materials,

materially amended the flawed indictment and constitutes reversible error. Because

this fatally defective indictment could not be cured by the State’s material

amendment prior to trial, we arrest the trial court’s judgment and vacate defendant’s

conviction on Count II of the indictment in case 13 CRS 52289.

                                          III

       Lastly, and in the alternative to defendant’s argument in Section I, supra,

defendant contends the trial court erred in entering judgment for two separate counts

of manufacturing methamphetamine because the crime was a single continuing

offense and, therefore, one of defendant’s convictions should be vacated. We disagree.




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                                  STATE V. MALONEY

                                   Opinion of the Court



      “This Court reviews the trial court’s denial of a motion to dismiss de novo.”

State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citing State v.

Mckinnon, 306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982)). “Upon defendant’s motion

for dismissal, the question for the Court is whether there is substantial evidence (1)

of each essential element of the offense charged, or of a lesser offense included

therein, and (2) of defendant’s being the perpetrator of such offense. If so, the motion

is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000)

(quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). “Substantial

evidence is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980)

(citations omitted).

      “A continuing offense . . . is a breach of the criminal law not terminated by a

single act or fact, but which subsists for a definite period and is intended to cover or

apply to successive similar obligations or occurrences.” State v. Johnson, 212 N.C.

566, 570, 194 S.E.2d 319, 322 (1937). “North Carolina appellate courts have held that

analogous activities are continuing offenses.” State v. Grady, 136 N.C. App. 394, 400,

524 S.E.2d 75, 79 (2000) (citations omitted); see also State v. Calvino, 179 N.C. App.

219, 223, 632 S.E.2d 839, 843 (2006) (vacating one of two convictions for keeping a

vehicle for selling a controlled substance as double jeopardy prohibits a conviction for

two counts under the applicable statute as “the offense is a continuing offense”). For



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                                    STATE V. MALONEY

                                     Opinion of the Court



example, illegal possession of stolen property is a continuing offense beginning at

receipt and continuing until divestment, see State v. Davis, 302 N.C. 370, 372–75, 275

S.E.2d 491, 493–94 (1981), and kidnapping is a continuing offense that lasts from the

time of initial confinement until the victim regains free will, see State v. White, 127

N.C. App. 565, 570, 492 S.E.2d 48, 51 (1997).

       In Grady, the defendant was charged with two counts of maintaining a

dwelling for the use of a controlled substance. In determining that maintaining a

dwelling is a continuing offense, this Court noted that, if it were not, “the State would

be free . . . to ‘divide a single act . . . into as many counts . . . as the prosecutor could

devise.’ ” 136 N.C. App. at 400, 524 S.E.2d at 79 (alterations in original) (quoting

White, 127 N.C. App. at 570, 492 S.E.2d at 51). This Court also described a situation

which would not constitute a continuing offense: “There is no evidence indicating a

termination and subsequent resumption of drug trafficking at this dwelling; to the

contrary, the evidence shows that drugs were readily available there on request

throughout the investigation.” Id. In other words, because the act of maintaining a

dwelling in Grady involved drug transactions which took place over time at a single

dwelling, the act of maintaining a dwelling could not be divided into discrete events

(it was a continuing offense), and, therefore, the two convictions violated the

constitutional prohibition against double jeopardy. Id.




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                                    STATE V. MALONEY

                                    Opinion of the Court



      The crime of manufacturing a controlled substance “means the production,

preparation, propagation, compounding, conversion, or processing of a controlled

substance by any means . . . .” N.C. Gen. Stat. § 90-87(15) (2015). In the instant case,

two separate methamphetamine labs, or the evidence thereof, were discovered in the

trunk of the Taurus and in the storage unit. In both locations, various materials

related to the manufacture of methamphetamine were discovered in black garbage

bags. Defendant argues that this “evidence suggests a single continuous operation

where the same participants were making batches of the drug, with various stages of

the preparation and processing occurring in locations which included the residence,

the car, and the storage locker.”

      We disagree with defendant’s characterization.        In the present case, the

evidence at trial demonstrated termination, not continuation, of separate processes

of manufacturing methamphetamine in more than one location. In both locations—

the trunk of the car and the storage unit—the chemical reaction process had reached

the end stage where gas had been introduced into the liquid to precipitate a useable

form of methamphetamine. In other words, the two separate garbage bags found in

two distinct locations each contained evidence that separate manufacturing offenses

had been completed.     In fact, defendant’s own witness made the point that the

garbage bags held trash from separate batches of methamphetamine manufactured

on separate dates. While we do not think the statute necessarily requires a completed



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                                STATE V. MALONEY

                                 Opinion of the Court



process—“manufacturing a controlled substance means the production, preparation,

propagation, compounding, conversion, or processing of a controlled substance by any

means,” id. § 90-87(15) (emphasis added)—based on the facts present in the instant

case, it is clear that two separate and distinct locations contained two separate

methamphetamine manufacturing processes. Accordingly, the trial court did not err

by entering judgment for two separate counts of manufacturing methamphetamine.

Defendant’s argument is overruled.

      NO ERROR IN PART; JUDGMENT ARRESTED AND CONVICTION

      VACATED IN PART.

      Judge INMAN concurs.

      Judge MURPHY concurs as to Parts I and II, and concurs in the result in Part

III by separate opinion.




                                        - 15 -
         No. COA16-851 – State v. Maloney


         MURPHY, Judge, Concurring as to Parts I and II and the result of Part III.

         I concur in the Court’s opinion as to Parts I and II and the result of Part III,

but I write separately to express my concerns regarding the application of N.C.G.S. §

90-87(15) to the manufacture of methamphetamine.

         In the present case, there were three locations where drug manufacturing

material was found: in Maloney and Burmeister’s bedroom, in the storage unit

Maloney had rented, and in the car the couple had borrowed from Brass. Indictments

were filed regarding the materials found in the car and storage unit, but not the

bedroom. Defendant argues that the manufacture of a controlled substance, lacking

any specified duration or particular culmination, is a continuing offense.           The

majority emphasizes the separate locations of the materials found. However, I would

hold that the locations of the items found are not controlling on the number of counts

of manufacturing methamphetamine as the items found were only indicative of past

“one-pot” manufacturing or the intention and ability to “cook” in the future.

         As the majority points out, there were three empty bottles evidencing past

cooks.     I believe that each one-pot cook constituted an act of manufacturing

methamphetamine under the statute as it is the bulk of the eventual completed

process of turning chemicals into the controlled substance. While I arrive at the same

result as the majority today, had all three bottles been in the same location I still

would have found no error as they were merely trash and evidence of past illegal

conduct.
                                  STATE V. MALONEY

                                 MURPHY, J., concurring



      As was discussed at length during arguments of counsel, there are many ways

to analyze one continuing process as opposed to individual acts of manufacturing

methamphetamine. It is a reasonable reading of the statute and our case law that

multiple bottles cooked in the same room and producing hundreds of grams of

methamphetamine without a significant break in production could result in only one

conviction of manufacturing. Alternatively, it is just as reasonable a reading of the

statute and case law that each time an additional amount of catalyst is introduced

into the chemical solution the bottle starts a new chemical reaction and is an

individual, though small, manufacture of methamphetamine which could reasonably

result in the conviction of multiple counts from a single one-pot cook.

      First-time offenders face a minimum presumptive sentence of 58 to 82 months

for each offense of manufacturing methamphetamine, thus it is of great importance

to the public that statutes such as N.C.G.S. § 90-87(15) are well-defined. The current

statute and case law, even after today’s decision, leave open to interpretation what

constitutes one continuing offense of manufacture versus several separate instances.

      I concur in today’s result, but believe it is extremely important for this matter

to be addressed for future decisions and to ensure the equal application of our statutes

across the state. However, as an error-correcting court, we do not have the power to

address policy concerns that may exist for various conflicting factual situations. This

matter should be readdressed by the General Assembly or our Supreme Court.



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