             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-508

                                Filed: 5 April 2016

Union County, No. 11 CRS 51552

STATE OF NORTH CAROLINA

            v.

ROGER CHRISTOPHER OXENDINE, Defendant.


      Appeal by defendant from judgments entered 6 November 2014 by Judge

Christopher W. Bragg in Union County Superior Court.        Heard in the Court of

Appeals 21 October 2015.


      Attorney General Roy Cooper, by Assistant Attorney General Mariana M.
      DeWeese, for the State.

      John R. Mills for defendant-appellant.


      GEER, Judge.


      Defendant Roger Christopher Oxendine appeals from his convictions of

manufacturing methamphetamine and possessing precursors to methamphetamine.

On appeal, defendant contends that the indictment’s language was insufficient

because (1) with respect to the possession of methamphetamine precursors count, it

failed to allege defendant’s intent to use the precursors to manufacture or his

knowledge that they would be used to manufacture methamphetamine; and (2) with

respect to the manufacturing methamphetamine count, the indictment relied on

defendant’s possessing precursors as the basis for the manufacturing charge. We

hold, as to the possession count, that the indictment was insufficient and therefore
                                  STATE V. OXENDINE

                                   Opinion of the Court



arrest    judgment   on   that   count   for   possessing   a   precursor   chemical   to

methamphetamine. As to the count for manufacturing methamphetamine, however,

we hold that the indictment was sufficient.

                                         Facts

         The State’s evidence tended to show the following facts. On 15 March 2011,

Lieutenant Mendel Miles of the Union County Sheriff’s Office received information

causing him to go to a residence in Stallings, North Carolina, along with Detectives

James Godwin and Mark Thomas, both of the Union County Sheriff’s Office. When

Lieutenant Miles and the other officers arrived, they observed a detached garage

about 75 feet from the main residence. The officers approached the building using

the public driveway and heard two different male voices inside of the building. They

also smelled a strong odor of ammonia.

         Lieutenant Miles stepped around to an open door where he initially saw Tony

Sowards standing behind a drill press. To the right side of the open door, he saw

defendant, who appeared to be condensing ammonia.               After Lieutenant Miles

announced his presence and identified himself, defendant attempted to hide.

Lieutenant Miles ordered both individuals to exit the building, but defendant had to

be told twice before he complied. Defendant and Mr. Sowards were then placed in

handcuffs.




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                                  Opinion of the Court



      After securing the location, Lieutenant Miles put on protective gear and

entered the garage to perform a safety assessment. In the garage, the investigating

team found materials used to manufacture methamphetamine, including, among

other things: Coleman fuel, an ammonia condenser, cold packs, lye, Roebic Crystal

Drain Cleaner, Liquid Fire, tubing, lithium batteries, pseudoephedrine tablets, and

muriatic acid. The team also found a liquid solution in containers in the garage that

was   analyzed    and   samples     of     the      solution   revealed     the     presence   of

methamphetamine, as well as chemicals consistent with a clandestine manufacture

of methamphetamine.

      On 3 October 2011, defendant was indicted, in a superseding indictment, for

manufacturing methamphetamine and for possessing a precursor chemical to

methamphetamine. Defendant was found guilty of both charges, and the trial court

sentenced defendant to a term of 86 to 113 months for manufacturing

methamphetamine and a concurrent term of 17 to 21 months for possession of a

precursor to methamphetamine. Defendant timely appealed to this Court.

                                                I

      Defendant    first   argues        that       the   indictment      for     possession   of

methamphetamine precursors was insufficient because it failed to allege either

defendant’s intent to use the precursors to manufacture methamphetamine or his

knowledge that they would be used to manufacture methamphetamine. We agree.



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                                   Opinion of the Court



      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. LePage, 204 N.C. App. 37, 49, 693 S.E.2d 157, 165 (2010). “[W]e review the

sufficiency of an indictment de novo.” 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.’ ” State v. Billinger, 213 N.C. App. 249, 255, 714 S.E.2d

201, 206 (2011) (quoting State v. Courtney, 248 N.C. 447, 451, 103 S.E.2d 861, 864

(1958)). However, “ ‘[o]ur courts have recognized that[,] while an indictment should

give a defendant sufficient notice of the charges against him, it should not be

subjected to hyper technical scrutiny with respect to form.’ ” State v. Harris, 219 N.C.

App. 590, 592, 724 S.E.2d 633, 636 (2012) (quoting In re S.R.S., 180 N.C. App. 151,

153, 636 S.E.2d 277, 280 (2006)). “ ‘The general rule in this State and elsewhere is

that an indictment for a statutory offense is sufficient, if the offense is charged in the

words of the statute, either literally or substantially, or in equivalent words.’ ” State

v. Simpson, ___ N.C. App. ___, ___, 763 S.E.2d 1, 3 (2014) (quoting State v. Greer, 238

N.C. 325, 328, 77 S.E.2d 917, 920 (1953)).




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                                         Opinion of the Court



       Here, defendant was charged with violating N.C. Gen. Stat. § 90-95(d1)(2)

(2013),1 which makes it unlawful for any person to “[p]ossess an immediate precursor

chemical with intent to manufacture methamphetamine” or to “[p]ossess or distribute

an immediate precursor chemical knowing, or having reasonable cause to believe,

that    the    immediate       precursor      chemical      will    be   used     to    manufacture

methamphetamine.” The indictment in this case alleged that defendant “unlawfully,

willfully and feloniously did possess lithium batteries, ammonia nitrate, malonic acid,

pseudoephedrine blister packs, coleman fuel, roebic drain cleaner, liquid fire, cold

pack, household lye and tubing used in the manufacture of methamphetamine.”

       Defendant contends that this indictment failed to allege, as required by N.C.

Gen. Stat. § 90-95(d1)(2), that he had the required specific intent: that he either

possessed the precursor with intent himself to manufacture methamphetamine or he

possessed the precursor knowing or having reasonable cause to believe that it would

be used by someone else to manufacture methamphetamine.                          In support of his

argument that the indictment was insufficient because of this omission, defendant

relies on State v. Miller, 231 N.C. 419, 420, 57 S.E.2d 392, 394 (1950), in which our

Supreme Court held “[w]hen a specific intent is a constituent element of the crime, it

must be alleged in the indictment. The omission of such allegation is fatal.”


       1N.C.   Gen. Stat. § 90-95(d1) was amended by 2014 N.C. Sess. Ch. 115, § 41(b) and 2015 N.C.
Sess. Ch. 32, § 3. Because defendant committed the charged offenses on 15 March 2011, well before
the effective dates of these respective amendments, we cite to the 2013 version of N.C. Gen. Stat. § 90-
95(d1), which is the most current version of this subsection applicable to defendant.

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                                   Opinion of the Court



      We agree with defendant that the indictment is insufficient to allege the

necessary specific intent or knowledge.       While the indictment alleges that the

identified materials possessed by defendant are used in the manufacture of

methamphetamine, the indictment fails to allege that 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 contains nothing about defendant’s intent or knowledge about how the

materials would be used.

      The State, in arguing that the indictment is adequate, relies upon Harris. In

Harris, however, this Court was not required to address the question presented by

this case: whether an element of the crime relating to defendant’s specific intent or

knowledge or belief of someone else’s intent was omitted. Instead, the statute at issue

in Harris required the State to prove generally that a defendant was “knowingly” on

school premises. Id. at 596, 724 S.E.2d at 637. The Court observed that the term

“willfully” implies that an act was done “knowingly.” Id. at 595, 724 S.E.2d at 637.

Consequently, the Court concluded, the indictment’s allegation that defendant was

“willfully” on school premises “sufficed to allege the requisite ‘knowing’ conduct.” Id.

at 596, 724 S.E.2d at 638.

      In this case, however, simple “knowing” possession of the materials specified

in the indictment does not violate the law. Therefore, the fact that this Court has



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                                   Opinion of the Court



equated an allegation of willfulness with knowledge does not lead to the conclusion

that the indictment is valid. The allegation that defendant “willfully” possessed the

materials does not allege that he did so for any particular purpose or with knowledge

or reasonable cause to believe that the materials would be used for any particular

purpose. Therefore, Harris is inapplicable.

      The dissent also relies upon this Court’s unpublished opinion in State v. Ricks,

232 N.C. App. 186, 754 S.E.2d 259, disc. review denied, 367 N.C. 785, 766 S.E.2d 645

(2014), in which the Court addressed the sufficiency of an indictment charging the

defendant with possession of a stolen firearm, an offense requiring that the defendant

know that the firearm was stolen. This Court held: “[T]he indictment alleged that

defendant ‘unlawfully, willfully, and feloniously’ possessed the stolen rifle. This

allegation of willfulness was sufficient under . . . Harris to allege the knowledge

element of the offense of possession of a stolen firearm.” In other words, since the

offense required mere knowledge that the firearm was stolen, an allegation that the

defendant “ ‘willfully’ ” possessed the stolen gun was sufficient.

      For this case to be analogous to Ricks, the criminal offense would have to make

possession of the products specified in the indictment unlawful if the defendant knew

that they could be used in the manufacture of methamphetamine. However, that

knowledge is not what makes possession of precursor chemicals illegal. Even though

much of the public knows that pseudoephedrine is used in the manufacture of



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                                  Opinion of the Court



methamphetamine, that knowledge does not make it unlawful to go to the drugstore

and buy the product when a person has a cold. The statute makes it unlawful to

possess the precursors if the individual intends to use them in the manufacture of

methamphetamine or knows or has cause to believe that someone else will do so. The

issue is the defendant’s knowledge of how the precursors will be used. Just as an

indictment for possession of cocaine with intent to sell or deliver must allege the

specific intent regarding why the defendant possesses the cocaine, so too the

indictment in this case must have alleged why defendant possessed the precursors:

for manufacture of methamphetamine by himself or someone else.

      Without an allegation that defendant possessed the required intent,

knowledge, or cause to believe, the indictment fails to allege an essential element of

the crime.   Accordingly, we must arrest judgment on defendant’s conviction of

possession of a precursor chemical in violation of N.C. Gen. Stat. § 90-95(d1)(2)(b).

                                          II

      Next, defendant argues that the indictment was insufficient to allege the

offense of manufacturing methamphetamine. The indictment alleged that defendant:

             unlawfully, willfully and feloniously did knowingly
             manufacture methamphetamine, a controlled substance
             listed in Schedule II of the North Carolina Controlled
             Substances Act.      The manufacturing consisted of
             possessing lithium batteries, ammonia nitrate, malonic
             acid, pseudoephedrine blister packs, coleman fuel, roebic
             drain cleaner, liquid fire, cold pack, household lye and



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                                  Opinion of the Court



             tubing in a garage at 4701 Stevens Mill Road, Stallings,
             North Carolina.

      Defendant contends that possession of materials that can be used to

manufacture methamphetamine is not the same as manufacturing the substance

itself. Further, defendant argues that this count of the indictment essentially just

alleges another count of possession of precursor chemicals.

      Under N.C. Gen. Stat. § 90-95(a)(1) (2015), “it is unlawful for any person [t]o

manufacture . . . a controlled substance[.]” The first sentence of the indictment

precisely tracks the language of the statute. An indictment is only required to allege

the essential elements of the crime sought to be charged. Billinger, 213 N.C. App. at

255, 714 S.E.2d at 206. “ ‘Allegations beyond the essential elements of the crime

sought to be charged are irrelevant and may be treated as surplusage.’ ” State v.

White, 202 N.C. App. 524, 529, 689 S.E.2d 595, 598 (2010) (quoting State v. Bollinger,

192 N.C. App. 241, 246, 665 S.E.2d 136, 139 (2008), aff’d per curiam, 363 N.C. 251,

675 S.E.2d 333 (2009)). Consequently, “[t]he use of superfluous words should be

disregarded.” State v. Taylor, 280 N.C. 273, 276, 185 S.E.2d 677, 680 (1972).

      The essential elements of the offense of manufacturing methamphetamine do

not include what form the manufacturing took, but rather simply that the defendant

(1) manufactured (2) a controlled substance. N.C. Gen. Stat. § 90-95(a)(1). Indeed,

in State v. Miranda, ___ N.C. App. ___, ___, 762 S.E.2d 349, 353-54 (2014), this Court




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                                    Opinion of the Court



specifically rejected any contention that the State is required to allege in the

indictment the type of manufacturing activity in which the defendant engaged:

             Although Defendant contends in his brief that the
             indictment purporting to charge him with trafficking in
             cocaine by manufacturing was fatally defective based upon
             the fact that it failed to specify the exact manner in which he
             allegedly manufactured cocaine or a cocaine-related mixture,
             Defendant has failed to cite any authority establishing the
             existence of such a requirement, and we have not identified
             any such authority in the course of our own research. On the
             contrary, the relevant count of the indictment that had been
             returned against Defendant in this case is clearly couched in
             the statutory language and alleges that Defendant’s conduct
             encompassed each of the elements of the offense in question.
             Although Defendant is correct in noting that the indictment
             does not explicitly delineate the manner in which he
             manufactured cocaine or a cocaine-related mixture, the
             relevant statutory language creates a single offense
             consisting of the manufacturing of a controlled substance
             rather than multiple offenses depending on the exact
             manufacturing activity in which Defendant allegedly
             engaged.

Id. at ___, 762 S.E.2d at 353-54.

      Because the State was not required to allege the specific form that the

manufacturing activity took, the allegations in the indictment regarding possession

of precursor chemicals is mere surplusage and may be disregarded. The indictment,

therefore, properly alleges a violation of N.C. Gen. Stat. § 90-95(a)(1).

      Defendant, however, further argues that our courts have held indictments

“void for uncertainty” when more than one offense is charged within a single count.

Defendant points to State v. Williams, 210 N.C. 159, 160, 185 S.E. 661, 662 (1936), in


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                                   Opinion of the Court



which the Supreme Court held that the fact the State charged several separate

offenses in one count rendered the indictment void for uncertainty. In Williams, the

bill of indictment charged that the defendant “ ‘unlawfully, willfully, and feloniously

did possess, manufacture, have under his control, sell, prescribe, administer, or

dispense a narcotic drug, to-wit: Cannibis[.]’ ” Id. at 159-60, 185 S.E. at 661.

       Here, unlike the indictment in Williams, the indictment included two separate

and   distinct     counts.    Count   I   charged     defendant   with   manufacturing

methamphetamine in violation of N.C. Gen. Stat. § 90-95(a)(1), while Count II

charged defendant with possession of a methamphetamine precursor in violation of

N.C. Gen. Stat. § 90-95(d1)(2). We, therefore, hold that the indictment was not void

for uncertainty.

                                           III

       Finally, defendant argues that the trial court erred in instructing the jury on

the manufacturing methamphetamine charge. According to defendant, the court

instructed the jury on a non-existent crime. Defendant did not, however, object at

trial to the jury instructions.

       While, ordinarily, we could review the instructions under a plain error

standard, State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996), defendant

has specifically asserted that “Mr. Oxendine has not requested plain error review.”

Defendant further notes our Supreme Court’s holding that a defendant waives plain



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                                    Opinion of the Court



error review when he does not specifically argue plain error. See State v. Wiley, 355

N.C. 592, 607, 565 S.E.2d 22, 35 (2002). We, therefore, do not review the jury

instructions in this case for plain error.

      Defendant asks instead that this Court suspend the Rules of Appellate

Procedure under Rule 2 of those Rules, apply a de novo review to the question

whether the trial court erred in its instructions, and then conclude that this error

amounts to manifest injustice as required under Rule 2. However, the analysis under

“plain error” review is not more rigorous than that required if we were to act under

Rule 2.

      Our Supreme Court has held:

             For error to constitute plain error, a defendant must
             demonstrate that a fundamental error occurred at trial. To
             show that an error was fundamental, a defendant must
             establish prejudice -- that, after examination of the entire
             record, the error had a probable impact on the jury’s
             finding that the defendant was guilty. Moreover, because
             plain error is to be applied cautiously and only in the
             exceptional case, the error will often be one that seriously
             affect[s] the fairness, integrity or public reputation of
             judicial proceedings[.]

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations

and quotation marks omitted). The first step under plain error review is, therefore,

to determine whether any error occurred at all. However, in the second step, the

defendant must show that any error was fundamental by establishing that the error

had a probable effect on the verdict.


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                                   Opinion of the Court



       Our Supreme Court has held with respect to Rule 2: “While an appellate court

has the discretion to alter or suspend its rules, exercise of this discretion should only

be undertaken with a view toward the greater object of the rules. This Court has

tended to invoke Rule 2 for the prevention of manifest injustice in circumstances in

which substantial rights of an appellant are affected.” State v. Hart, 361 N.C. 309,

316, 644 S.E.2d 201, 205 (2007) (internal quotation marks omitted). In other words,

rather than deciding whether an error had a probable impact on the verdict, we must

determine whether suspending the Appellate Rules is necessary to prevent manifest

injustice.

       Here, the jury was given the following instruction related to the offense of

manufacturing methamphetamine:

             For you to find the defendant guilty of this offense, the
             state must prove beyond a reasonable doubt that the
             defendant manufactured methamphetamine. Knowingly
             possessing lithium batteries, ammonia nitrate, malonic
             acid, pseudoephedrine blister packs, Coleman fuel, Roebic
             drain cleaner, liquid fire, cold packs, household lye and
             tubing for the purpose of combining which created
             methamphetamine would be manufacture of a controlled
             substance.

(Emphasis added.)

       The trial court further instructed the jury:

                   If you find from the evidence beyond a reasonable
             doubt that on or about the alleged date the defendant,
             acting either by himself or acting together with other
             persons, knowingly possessed lithium batteries, ammonia


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                                   Opinion of the Court



              nitrate, malonic acid, pseudoephedrine blister packs,
              Coleman fuel, Roebic drain cleaner, liquid fire, cold packs,
              household lye and tubing for the purpose of combining
              which created methamphetamine, it would be your duty to
              return a verdict of guilty. If you do not so find or have a
              reasonable doubt, it would be your duty to return a verdict
              of not guilty.

(Emphasis added.)

       While defendant argues that the trial court was instructing the jury that it

could find manufacturing based on possession of precursor chemicals alone, we do not

agree. Although the instruction could have been more precisely worded, we believe a

jury would understand from this instruction that it was required to find not only that

defendant possessed these chemicals, but also that he possessed the chemicals in

order to combine them, and, upon doing so, he created methamphetamine.

       Even if the instruction is imprecise, defendant has not shown that a failure to

suspend the Appellate Rules would result in manifest injustice. The evidence at trial

established that officers caught defendant in the actual act of manufacturing

methamphetamine and, following a search of the garage where defendant was found,

officers   discovered   numerous    precursor      chemicals   used   in   manufacturing

methamphetamine and containers that held liquid, which tested positive for

methamphetamine and chemicals consistent with the clandestine manufacture of

methamphetamine. Further, defendant claimed to Detective Godwin that “it was not

his cook” and that he was just “helping someone out.” The evidence against defendant



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                                   Opinion of the Court



was overwhelming and we can see no manifest injustice warranting application of

Rule 2.

                                      Conclusion

      We arrest judgment on Count II of the indictment, alleging a violation of N.C.

Gen. Stat. § 90-95(d1)(2). We have found no error, however, with respect to Count I

of the indictment, charging defendant with manufacturing a controlled substance in

violation of N.C. Gen. Stat. § 90-95(a)(1).

      NO ERROR IN PART; JUDGMENT ARRESTED IN PART.

      Judges HUNTER, JR. concurs.

      Judge DILLON concurs in part and dissents in part in a separate opinion.




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 No. COA15-508 – STATE v. OXENDINE


      DILLON, Judge, concurring in part, dissenting in part.


      I concur with Sections II and III of the majority’s opinion. However, because I

believe the indictment for possession of methamphetamine precursors was sufficient,

I respectfully dissent from the majority’s conclusion reached in Section I of its opinion.

      Defendant was found with precursors used in the manufacturing of

methamphetamine. He was convicted under N.C. Gen. Stat. § 90-95(d1)(2), which

makes it unlawful for any person to possess “an immediate precursor chemical

knowing, or having reasonable cause to believe, that . . . [it] will be used to

manufacture methamphetamine.” N.C. Gen. Stat. § 90-95(d1)(2) (2011) (emphasis

added). Defendant argues (and the majority agrees) that the indictment charging

him with the crime was fatally defective because it failed to allege that Defendant

possessed the precursors “knowing that they would be used in the manufacture of

methamphetamine.”

      The indictment, here, alleged that Defendant “unlawfully, willfully, and

feloniously   did   possess   .   .   .   [precursors]   used   in   the   manufacture   of

methamphetamine.” (Emphasis added.) The “knowing/intent” element would have

been more clearly alleged had the pleader employed the phrase “knowing that said

precursors would be used” rather than merely employing the word “used.” However,

by including the word “willfully” in the allegation, I believe that – based on our case

law – the indictment is sufficient to allege that Defendant knew, not only that he
                                   STATE V. OXENDINE

                    DILLON, J., concurring in part and dissenting in part



possessed precursors, but also that said precursors would be “used to manufacture

methamphetamine.”

      Our Supreme Court explained in State v. Falkner, 182 N.C. 793, 108 S.E. 756

(1921), that the term willfully “implies that the act is done knowingly[.]” Id. at 758,

108 S.E. at 758. Our Court applied Falkner in State v. Ricks, 232 N.C. App. 186, 754

S.E.2d 259, 2014 WL 217724 (2014) (unpublished opinion), which involved a situation

almost identical to the case at bar. In Ricks, the defendant was charged under a

statute which required that the State prove that the defendant knew that the rifle

was, in fact, stolen. Id. The indictment itself, however, merely alleged that the

defendant “willfully” possessed a “rifle,” and that the rifle “was stolen property.” Id.

*3. The defendant argued that the indictment was defective because it did not

explicitly state that the defendant knew that the rifle he possessed was, in fact, stolen.

Id. We rejected the defendant’s argument, explaining:

             [O]ur courts have held that the term “willfully,” in the
             criminal context, “implies that the act is done knowingly
             and of stubborn purpose.” . . . Here, the indictment alleged
             that defendant “unlawfully, willfully, and feloniously”
             possessed the stolen rifle. This allegation of willfulness
             was sufficient . . . to allege the knowledge element of the
             offense of possession of a stolen firearm.

Id. *3-4 (internal citations omitted). I see no meaningful difference between Ricks

and the present case.     That is, by alleging that Defendant “willfully” possessed

precursors “used in the manufacture of methamphetamine,” the pleader sufficiently



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                                   STATE V. OXENDINE

                    DILLON, J., concurring in part and dissenting in part



alleged that Defendant knew that the precursors would be used in the manufacture

of methamphetamine. This is not to say that the State is relieved from its burden of

proving at trial that Defendant had the requisite knowledge, but rather that the

allegations in the indictment are sufficient. Being one of the concurring judges in

Ricks, I vote to find no error in the present case.




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