An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-892
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 20 May 2014


STATE OF NORTH CAROLINA

      v.                                      Franklin County
                                              Nos. 12 CRS 50024
CHARLES DOUGLAS BROWNING, JR.                      12 CRS 50025
          Defendant.


      Appeal by defendant from judgments entered 3 October 2012

by Judge James E. Hardin, Jr. in Franklin County Superior Court.

Heard in the Court of Appeals 8 January 2014.


      Attorney General Roy Cooper, by Special                   Deputy    Attorney
      General Richard E. Slipsky, for the State.

      Kevin P. Bradley for defendant-appellant.


      GEER, Judge.


      Defendant appeals from his convictions of trafficking in

marijuana      by     possession,        trafficking       in     marijuana       by

manufacture, intentionally maintaining a dwelling for keeping a

controlled substance, and possession of drug paraphernalia.                       We

hold that the State did not produce substantial evidence that

the marijuana seized weighed more than 10 pounds, and therefore

we dismiss the marijuana trafficking convictions and remand for
                                 -2-
entry of judgment on the lesser included offenses.               We also

vacate the judgment entered on the conviction for maintaining a

dwelling for keeping a controlled substance because that was a

charge for which defendant was not indicted.

                                Facts

      The State's evidence tended to show the following facts.

On 30 December 2011, pursuant to a valid search warrant, Captain

William Mitchell and Detective Justin Hastings, of the Franklin

County Sheriff's Department,     entered defendant's residence to

search for marijuana.

      The officers found marijuana growing in three rooms of the

house and seized 85 plants at various stages of maturity ranging

from seedlings to three-foot-tall plants.          The officers seized

the growing plants, cutting them off a few inches above the root

ball and putting the whole plants in a large paper bag.              They

took the plants to the Post Office to weigh and determined that

the   marijuana   plants   weighed     10.05   pounds.     The    police

additionally seized processed marijuana weighing 37.2 grams.

      On 27 February 2012, defendant was indicted for trafficking

in    marijuana   by   possession,   trafficking    in   marijuana     by

manufacture, knowingly and intentionally keeping and maintaining

a dwelling for the purpose of using controlled substances, and
                                          -3-
possession of drug paraphernalia.                    When the case proceeded to

trial, defendant chose to represent himself.

       The jury returned guilty verdicts on all four charges.                           The

trial court consolidated the marijuana trafficking charges and

sentenced defendant to 25 to 30 months imprisonment.                           The court

then    imposed    a    consecutive       sentence         of   six      to    17   months

imprisonment      for    the     consolidated         charges      of    maintaining      a

dwelling and possession of drug paraphernalia, but suspended the

sentence    and    placed       defendant       on    probation         for    30   months

following    the       conclusion    of     his       active    sentence        for     the

trafficking charges.           Defendant timely appealed to this Court.

                                           I

       Defendant    first      argues     that       the   trial      court     erred    in

denying    his    motion    to    dismiss       the    trafficking        in    marijuana

charges.    "'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)).          "This Court reviews the trial court's denial
                                        -4-
of a motion to dismiss de novo."               State v. Smith, 186 N.C. App.

57, 62, 650 S.E.2d 29, 33 (2007).

       "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).      We    must    "consider       all   evidence    admitted,

whether competent or incompetent, in the light most favorable to

the State, giving the State the benefit of every reasonable

inference and resolving any contradictions in its favor."                      State

v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).                             "A

motion to dismiss should be granted, however, when 'the facts

and circumstances warranted by the evidence do no more than

raise a suspicion of guilt or conjecture since there would still

remain a reasonable doubt as to defendant's guilt.'"                        State v.

McDowell, ___ N.C. App. ___, ___, 720 S.E.2d 423, 424 (2011)

(quoting State v. Turnage, 362 N.C. 491, 494, 666 S.E.2d 753,

755 (2008)).

       Defendant was indicted under N.C. Gen. Stat. § 90-95(h)(1)

(2013),      which     provides     that       "[a]ny     person      who     sells,

manufactures, delivers, transports, or possesses in excess of 10

pounds (avoirdupois) of marijuana shall be guilty of a felony

which felony shall be known as 'trafficking in marijuana[.]'"

Defendant     contends     that     the       State     presented     insufficient
                                    -5-
evidence of the marijuana's weight because the State weighed the

marijuana plants as a whole, including the mature stalks, which

are excluded from the statutory definition of marijuana.

       N.C. Gen. Stat. § 90-87(16) (2013) provides:

              "Marijuana" means all parts of the plant of
              the genus Cannabis, whether growing or not;
              the seeds thereof; the resin extracted from
              any part of such plant; and every compound,
              manufacture, salt, derivative, mixture, or
              preparation of such plant, its seeds or
              resin, but shall not include the mature
              stalks of such plant, fiber produced from
              such stalks, oil, or cake made from the
              seeds of such plant, any other compound,
              manufacture, salt, derivative, mixture, or
              preparation of such mature stalks (except
              the resin extracted therefrom), fiber, oil,
              or cake, or the sterilized seed of such
              plant which is incapable of germination.

(Emphasis added.)       "Those parts of the plant not included in the

statutory definition of marijuana, such as the mature stalks and

sterilized seeds, are necessarily not to be included in the

weight of the marijuana when determining a trafficking charge."

State v. Gonzales, 164 N.C. App. 512, 515, 596 S.E.2d 297, 299

(2004), aff'd per curiam, 359 N.C. 420, 611 S.E.2d 832 (2005).

See also State v. Manning, 184 N.C. App. 130, 138, 646 S.E.2d

573,    578    (2007)   ("Under   the     statute,   'mature   stalks   and

sterilized seeds' are not 'marijuana.'" (quoting Gonzales, 164

N.C. App. at 515, 596 S.E.2d at 299)).
                                     -6-
       "Proving the weight of the marijuana is an element of the

trafficking offense" which the State has the burden of proving

at trial beyond a reasonable doubt.              Gonzales, 164 N.C. App. at

515, 596 S.E.2d at 299.       On the other hand, the burden is on the

defendant to make an affirmative showing "that any part of the

seized matter is not 'marijuana' as defined.                  In such a case

where   the   defendant    does    come    forth    with   evidence   that    the

State's offered weight of the marijuana includes substances not

within the definition (e.g., mature stems or sterile seeds), it

then    becomes    the    jury's    duty    to      accurately     'weigh'    the

evidence."    Id. at 516, 596 S.E.2d at 300.

       "[I]n order to prove the element of weight of the marijuana

in   question,    [the   State]    must    either    offer   evidence   of    its

actual,   measured   weight    or   demonstrate       that   the   quantity    of

marijuana itself is so large as to permit a reasonable inference

that its weight satisfied this element."              State v. Mitchell, 336

N.C. 22, 28, 442 S.E.2d 24, 27 (1994).              This Court has found the

State's evidence sufficient to defeat a motion to dismiss when

the State produced        evidence that the measured weight of                the

marijuana met the statutory minimum, and the defendant failed to

make an affirmative showing that the weight included substances

excluded from the statutory definition of marijuana.                  See State

v. Anderson, 57 N.C. App. 602, 608, 292 S.E.2d 163, 167 (1982)
                                           -7-
(holding State's evidence that marijuana weighed 700 pounds more

than   the      statutory    minimum      of     2,000     pounds      was    substantial

evidence when defendant did not offer any evidence that "the

stalks were mature and, if so, whether the weight of the mature

stalks could possibly reduce the total weight of the 'marijuana'

below 2,000 pounds").

       More recently, this Court has concluded that even when the

defendant       has     presented      evidence     that       the    weight      included

portions of the plants not considered marijuana, the State's

evidence     is    sufficient      when    the     jury,    after      subtracting       the

excluded     portions       of   the      plants    based      on     the     defendant's

evidence,       could    still   conclude        that    the   weight        exceeded    the

statutory       minimum.     See    Manning,       184     N.C.      App.    at   139,   646

S.E.2d     at     578-79    (holding       evidence      marijuana          weighed      25.5

pounds, well in excess of the statutory minimum of 10 pounds,

was substantial because "[u]sing defendant's expert's estimate

that forty percent of the plant material was mature stalk, the

total weight of the remaining marijuana would be 15.3 pounds,

more than the ten pound minimum required by the statute").

       However, there are limits to what a jury may reasonably

infer from evidence presented by the parties.                         "When determining

whether an element exists, the jury may rely on its common sense

and the knowledge it has acquired through everyday experiences."
                                   -8-
Mitchell, 336 N.C. at 29, 442 S.E.2d at 28.           By the same token,

"[t]he jury may not find the existence of a fact based solely on

its in-court observations where the jury does not possess the

requisite knowledge or expertise necessary to infer the fact

from   the   evidence   as   reflected   in   the   record."   Id.      For

example, "the weight of a given quantity of marijuana is not a

matter of general knowledge and experience."             Id. at 30, 442

S.E.2d at 28.

       In Mitchell, our Supreme Court concluded that the State

presented insufficient evidence that the marijuana exceeded the

minimum weight of one and one half ounces necessary to support a

conviction of felony possession of marijuana under N.C. Gen.

Stat. § 90-95(d)(4) (1994).       336 N.C. at 30, 442 S.E.2d at 28.

The State introduced into evidence (1) two bags of marijuana

seized by the store clerk, and (2) "the clerk's testimony that

she observed the bags sticking out of defendant's shirt pocket

by approximately four inches."           Id. at 28, 442 S.E.2d at 27.

The State did not present any evidence of the measured weight of

the marijuana.    The Court concluded that a finding by a juror as

to the weight of the marijuana based solely on being able to

visually observe the bags and testimony that the bag stuck out

four inches from the defendant's pocket was unreliable.              Id. at

30, 442 S.E.2d at 28.
                                       -9-
      The     Supreme    Court    agreed     with   the   reasoning   of   Judge

Clifton Johnson's dissent from the opinion filed in this Court:

              While jurors may and do rely on their five
              senses and their life experience in deciding
              the facts from the evidence placed before
              them, I would not place a defendant in
              jeopardy of a felony conviction based on the
              jury's perception of the total weight of
              dried vegetable material contained in two
              small plastic bags -- material with which
              the jurors presumably have little or no
              experience, either in handling generally or
              in the weighing of it.      Most people, in
              fact, do not have experience dealing in
              ounces of anything, much less a substance
              with the specific density and bulk of
              marijuana.

Id.

      Here,     the     State    presented    the   testimony   of    Detective

Hastings that the police seized 85 plants total, up to three

feet tall and in various stages of maturity.               Each plant was cut

"above the root ball, or to the lowest shoot or stalk that's

sticking out of . . . the main stalk."               In addition, "[a]ll the

plants from the seedlings to the three foot tall plants were all

placed in the same bag" and taken directly to the post office to

be weighed.       Subtracting the weight of the bag from the total

weight of the plants, the bagged plants weighed 10.05 pounds.

Additionally, the police seized processed marijuana that weighed

37.2 grams.1

      1
          .082 pounds or 1.31 ounces.
                                        -10-
       On cross-examination, Detective Hastings stated that of the

85 plants seized, approximately 20 to 30 were mature plants.                     He

further admitted that because they put each whole plant in the

bag, the bag included           "mature stalks" of the mature plants.

Finally, at defendant's request, the marijuana was laid out on

the courtroom floor so that the jury could view it.

       In sum, the State's evidence showed that the total weight

of all the marijuana seized was 10.13 pounds -- only 2.08 ounces

above the statutory threshold of 10 pounds.                   Defendant, however,

made "an affirmative showing of a specific exclusion to the

definition" of marijuana -- that the weight included at least 20

mature stalks.       Gonzales, 164 N.C. App. at 521, 596 S.E.2d at

303.    The State's evidence as to weight, therefore, consisted of

a showing that the total gross weight of the plants seized,

including at least 20 mature stalks that were not marijuana,

exceeded the statutory minimum by barely more than two ounces.

Consequently, in order to infer that the marijuana weighed over

10 pounds, the jury was required to conclude, based only on

their visual observations, that the mature stalks they observed

weighed less than two ounces.

       Under    these     circumstances,       this    case    is    analogous   to

Mitchell.        Although       here,    unlike   in    Mitchell,       the   State

presented      evidence    of    the    marijuana's     total       gross   measured
                                          -11-
weight, defendant also made an affirmative showing that at least

part of the weight should be excluded: the weight of the mature

stalks.     As a result, the ultimate task of the jury, in this

case, hinged on its ability to infer the weight of the mature

stalks of marijuana based solely on a visual inspection.                          The

trial court thus "place[d] a defendant in jeopardy of a felony

conviction based on the jury's perception of the total weight of

dried vegetable material . . . material with which the jurors

presumably    have    little      or    no    experience,     either    in   handling

generally or in the weighing of it."                  336 N.C. at 30, 442 S.E.2d

at 28.

     Unlike Anderson, where the State presented evidence that

the weight was       700 pounds         above the statutory threshold, or

Manning, where the weight exceeded the minimum by 15.5 pounds,

here,    the weight exceeded the              statutory     minimum by       only two

ounces.      As    this   Court     has      previously    noted,     "[t]he   weight

element becomes more critical as the State's evidence of weight

approaches the minimum weight charged."                   Gonzales, 164 N.C. App.

at   515,    596    S.E.2d     at      299.      We    find    that    under    these

circumstances, the State failed to produce substantial evidence

that the seized marijuana weighed over 10 pounds.

     The State argues, however, that defendant failed to meet

his burden of showing that the weight included "mature stalks"
                                         -12-
within the meaning of the statute.                  However, Detective Hastings

testified that 20 to 30 plants were mature, that he put the

"whole plant" into the bag, and that the "whole plant" of the

mature plants necessarily then included the mature stalks of

that    plant.       This   evidence    was     sufficient        to   show    that   the

State's evidence of weight included matter that is excluded from

the definition of marijuana.

       Nonetheless, the State cites Manning for the proposition

that "[o]nce defendant offers evidence tending to show the total

weight may have included mature stalks, the burden does not

shift to the State for further evidence," but rather, "[t]he

issue    of   the    'weight'    of    the    marijuana     becomes      one    for   the

jury."       184 N.C. App. at 138, 646 S.E.2d at 578.                     In Manning,

however, in contrast to this case, the jurors had evidence --

the testimony of the defendant's own expert witness -- that gave

them a basis other than simply their own experience on which to

determine the weight of the seized marijuana separate from the

mature stalks.        This case more resembles Mitchell than Manning.

       We,    therefore,     conclude        that   the    trafficking         judgments

should be vacated and the case remanded to the superior court

for entry of judgment and sentencing                      on the lesser included

offenses      of    possession   and    manufacturing        of    marijuana.         See

Mitchell, 336 N.C. at 30, 442 S.E.2d at 28 ("Since the record
                                          -13-
does not reflect that the State produced sufficient evidence

that      the   marijuana      exceeded    one    and    one-half     ounces,    the

conviction for possession of more than one and one-half ounces

of marijuana is reversed.              The case is remanded to the Court of

Appeals for further remand to the trial court for resentencing

as   if    defendant    had     been    convicted   of    simple    possession     of

marijuana.").

                                           II

       Defendant next argues that the trial court committed plain

error by failing to instruct the jury to disregard Detective

Hasting's erroneous interpretation of the statutory definition

of   marijuana.         Even    assuming    arguendo     that   the   trial     court

committed error, defendant cannot, as a matter of law, show that

he was prejudiced.

       Under the doctrine of invited error, "[a] defendant is not

prejudiced by the granting of relief which he has sought or by

error resulting from his own conduct."                   N.C. Gen. Stat. § 15A-

1443(c) (2013).         "Statements elicited by a defendant on cross-

examination      are,    even    if    error,    invited    error,    by   which   a

defendant cannot be prejudiced as a matter of law."                        State v.

Gobal, 186 N.C. App. 308, 319, 651 S.E.2d 279, 287 (2007), aff'd

per curiam, 362 N.C. 342, 661 S.E.2d 732 (2008).
                                       -14-
       Here, during his presentation of evidence, defendant re-

called      Detective   Hastings    to        the    stand.         Defendant     asked

Detective Hastings to read the statutory definition of marijuana

in   N.C.    Gen.   Stat.   §    90-87(16)          out   loud,     and   then    asked

Detective Hastings what he thought the statute meant.                       Detective

Hastings replied that

                  My interpretation -- my opinion of that
             -- of -- of what this is meaning, is stalks.
             What we seized were plants, not stalks.    I
             left stalks at the -- 206 Fox Ridge Road.
             There is pictures of stalks.     We did not
             collect stalks.   We collected plants.   All
             parts of the plants. It was connected.

                    They are all -- it's all one big plant.

Although defendant attempted to explain to Detective Hastings

that   the    seized    plants   did     in    fact       include    mature     stalks,

Detective Hastings insisted on his interpretation.                        In the end,

they agreed to disagree:

             Q.   Okay. But . . . mature stalks are not
             included   within  .   .   . the statutory
             definition, therefore, it should not be
             included in that evidence.

             A.     That's your opinion.

             Q.     That . . . would be my opinion.

             A.     Okay. Our opinions differ, sir.

             Q.     Okay.

Defendant did not object to Detective Hastings' testimony or

move to strike his responses.
                                  -15-
      At defendant's request, the jury instructions included the

statutory definition of marijuana.             Defendant did not request

special jury instructions and did not object to the instructions

given.     The statutory definition is clear that marijuana does

not include the mature stalks of the plant.          Any confusion as to

the   definition   was   caused   by     the    erroneous   interpretation

offered by Detective Hastings that was elicited by defendant

himself.    Under the doctrine of invited error, defendant, as a

matter of law, cannot show that he was prejudiced by the trial

court's failure to correct the erroneous interpretation of law

elicited by defendant.

                                  III

      Finally, defendant contends that the trial court committed

plain error by submitting a charge to the jury for which he was

not indicted.      The State concedes that this was prejudicial

error.

      Defendant was indicted under N.C. Gen. Stat. § 90-108(a)(7)

(2013), which provides that it shall be unlawful

            [t]o knowingly keep or maintain any store,
            shop, warehouse, dwelling house, building,
            vehicle,   boat,  aircraft,  or   any  place
            whatever, which is resorted to by persons
            using controlled substances in violation of
            this Article for the purpose of using such
            substances, or which is used for the keeping
            or selling of the same in violation of this
            Article[.]
                                    -16-
      "There are thus two theories under which the State may

prosecute a defendant under N.C.G.S. § 90-108(a)(7)."                Mitchell,

336 N.C. at 31, 442 S.E.2d at 29.           The statute makes it unlawful

to knowingly keep a dwelling house for two prohibited purposes:

(1) for the purpose of using controlled substances, or (2) for

the keeping or selling of controlled substances.                 Id.        Here,

defendant      was   only   indicted   under      the   first   theory:      for

maintaining a dwelling house for the purpose of using controlled

substances.      However, the jury returned a verdict of guilty for

the charge of "intentionally maintaining a dwelling for keeping

a controlled substance."       (Emphasis added.)

      "Our Supreme Court has 'consistently held that it is error,

generally prejudicial, for the trial judge to permit a jury to

convict upon a theory not supported by the bill of indictment.'"

State v. Sergakis, __ N.C. App. __, __, 735 S.E.2d 224, 227

(2012) (quoting State v. Brown, 312 N.C. 237, 248, 321 S.E.2d

856, 863 (1984)), disc. review denied, 366 N.C. 438, 736 S.E.2d

487 (2013).      Because the trial court convicted on a theory not

supported by the indictment, we vacate the consolidated judgment

of maintaining a dwelling and possession of drug paraphernalia

and   remand    solely   for   sentencing    on   the   possession     of   drug

paraphernalia charge.


      Reversed and remanded.
                         -17-
Judges BRYANT and CALABRIA concur.

Report per Rule 30(e).
