An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-762
                         NORTH CAROLINA COURT OF APPEALS

                                     Filed: 1 April 2014


STATE OF NORTH CAROLINA

      v.                                           Jackson County
                                                   No. 11 CRS 1787
                                                       11 CRS 1789-95

SCOTT JAY STOUGH



      Appeal by Defendant from judgments entered 1 October 2012

by Judge Alan Z. Thornburg in Jackson County Superior Court.

Heard in the Court of Appeals 9 January 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Derrick C. Mertz, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender Paul M. Green, for Defendant.


      DILLON, Judge.


      Scott Stough (“Defendant”) appeals from judgments entered 1

October    2012        convicting       him   of    eight    drug-related     crimes,

including,      inter      alia,        trafficking     in      methamphetamine    by

possession,       as     well    as     three      conspiracy     crimes    involving

methamphetamine.                On     appeal,      Defendant      challenges     the
                                           -2-
sufficiency    of    the    evidence       to    support      that   the    mixture    he

allegedly possessed was actually methamphetamine or to support

his   conviction      of    multiple          conspiracies.          Defendant      also

contends     the    trial       court      committed         plain   error     in     its

instructions pertaining to the conspiracy charges.                          Because we

believe that the evidence cannot support a conviction for both

conspiracy     to     traffic       methamphetamine            by    possession       and

conspiracy to traffic methamphetamine by manufacture, see State

v. Howell, 169 N.C. App. 741, 749, 611 S.E.2d 200, 206 (2005),

we vacate Defendant’s conviction on the latter charge and remand

this matter to the trial court to arrest judgment on the latter

conviction     only.            However,        as    to     Defendant’s     remaining

arguments, we find no reversible error.

      The    evidence      of    record       tends     to    show   the    following:

Defendant operated the Moonshine Mini Mart (the “Mini Mart”), a

convenient store in Cullowhee, North Carolina.                         The Mini Mart

was owned by Defendant’s sister, Charlotte Stough, who lived in

a basement apartment below the Mini Mart.

      Agent Shannon Ashe, with the North Carolina State Bureau of

Investigation, interviewed Tim Luker and Tripp Parker concerning

illegal     drug    activity      at    the      Mini      Mart.     Both    implicated

Defendant in the illegal manufacturing of methamphetamine.                            For
                                         -3-
example, Luker indicated that he had purchased pseudoephedrine,

an ingredient used in the manufacture of methamphetamine, for

Defendant on three occasions.

    Agent       Ashe    confirmed       through       MethCheck      –    a     statewide

centralized computer that tracks all sales of pseudoephedrine –

that Luker had, indeed, purchased pseudoephedrine three times.

Moreover, he confirmed that Defendant’s license and that of his

sister   were    used     to    purchase      pseudoephedrine         over      30   times

between March 2009 and November 2010.                     Amanda Clawson, Luker’s

girlfriend, purchased pseudoephedrine on four occasions between

September and November 2010.

    On     4   December       2010,   Agent        Ashe   received    a   notification

through MethCheck that Defendant had just made a purchase of

pseudoephedrine at a local pharmacy and immediately proceeded to

that location, where he observed Defendant leaving the pharmacy

and proceeding to his sister’s basement apartment.

    After securing a warrant, a team of officers approached

Defendant’s and Charlotte Stough’s residences.                        In Defendant’s

residence,      police     discovered         marijuana,      pipes       for     smoking

marijuana and methamphetamine, and two boxes of pseudoephedrine.

Police   also    entered       the    Mini    Mart    where   they       saw    Defendant

standing   in    the    gap    between       the    two   counters.        Police     also
                                              -4-
observed another man, Harley Shearer, proceeding from the Mini

Mart to Charlotte’s apartment with a backpack and a cardboard

box.       In   the     cardboard      box,    police      discovered,        inter   alia,

Defendant’s checkbook wrapped in a rubber band, inside which

police discovered a baggie of methamphetamine and several pieces

of paper containing “methamphetamine recipes.”

       Another     warrant       was     obtained     to    search      the     Mini-Mart.

During the search of the Mini Mart, the police discovered a

number of items used in the production of methamphetamine.                            Also

at   the    Mini       Mart,    Police    discovered       a    bottle       containing   a

mixture which purportedly included liquid methamphetamine under

one of the counters where Defendant had been standing.

       Defendant        was    arrested,      after   which     he     was    indicted    on

numerous charges and tried in the 10 September 2012 session of

Jackson County Superior Court, the Honorable Alan Z. Thornburg

presiding.       A jury found Defendant guilty of eight drug-related

charges.        The trial court entered judgments consistent with the

jury’s verdicts and sentenced Defendant to concurrent terms in

the presumptive range of 96 to 125 months, three terms of 90 to

117 months, 21 to 26 months, and 10 to 12 months.                            Defendant was

also sentenced to a term of 6 to 8 months on one of the charges,

which   was      set    as     consecutive,     but     which    was     suspended    with
                                            -5-
Defendant placed on supervised probation.                     From these judgments,

Defendant appeals.

           I:   Sufficiency of the Evidence; Standard of Review

          In Defendant’s first two arguments on appeal, he contends

the   trial     court       erred   by   denying    his     motion    to       dismiss    for

insufficiency of the evidence for two reasons: (1) The State

allegedly presented insufficient evidence to support more than

one       conspiracy        charge,      implicating        principles          of   double

jeopardy;       and   (2)     the   State   allegedly       presented          insufficient

evidence to support Defendant’s possession of 200 to 400 grams

of    a    mixture     containing        methamphetamine.            We    address       each

argument in turn.

          “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).               “‘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 (quoting State v. Barnes, 334 N.C. 67, 75, 430

S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed.
                                         -6-
2d 150 (2000).           “In making its determination, the trial court

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), cert. denied, 515

U.S. 1135, 132 L. Ed. 2d 818 (1995).

                    A:     Multiple Conspiracy Convictions

       Defendant      first     argues   the     State    presented    insufficient

evidence       to   support       his    three     conspiracy       convictions      –

conspiracy to manufacture methamphetamine, conspiracy to traffic

methamphetamine          by    possession,       and     conspiracy    to     traffic

methamphetamine       by      manufacture    –   stating    that,     at   most,   the

State proved one conspiracy to manufacture and possess 200 to

400 grams of a mixture containing methamphetamine.                          Defendant

further contends his right to be free from double jeopardy was

infringed.

       “The crime of conspiracy is, essentially, an agreement to

commit a substantive criminal act.”                    State v. Howell, 169 N.C.

App. 741, 748, 611 S.E.2d 200, 205 (2005) (citation omitted).

“No express agreement need be proved; proof of circumstances

which point to a mutual implied understanding to commit the
                                             -7-
unlawful     act     is        sufficient    to     prove     a    conspiracy.”            Id.

(citation omitted).               “There is no simple test for determining

whether     single        or     multiple     conspiracies         are   involved:         the

essential question is the nature of the agreement or agreements,

but factors such as time intervals, participants, objectives,

and   number    of    meetings        all    must    be     considered.”       State       v.

Rozier, 69 N.C. App. 38, 52, 316 S.E.2d 893, 902, cert. denied,

312 N.C. 88, 321 S.E.2d 907 (1984) (citation omitted).

      The   State     contends        that    Defendant’s         arguments    have    been

waived.        Specifically,          the    State    contends       –   and   Defendant

concedes - that Defendant did not properly preserve his double

jeopardy argument by lodging a motion a trial.                              See State v.

Kirkwood,    __    N.C.        App.   __,    __,    747    S.E.2d    730,    736,   appeal

dismissed, __ N.C. __, __ S.E.2d __ (2013) (holding that “a

double jeopardy issue cannot be raised for the first time on

appeal”).         Further,        inasmuch     as    Defendant’s         argument     is    a

sufficiency argument – based on the State’s alleged failure to

provide     substantial          evidence    of    three    separate      agreements        to

support three conspiracy convictions – and not a constitutional

double jeopardy argument, Defendant concedes that his argument,

likewise, was not properly preserved by his failure at trial to

move to dismiss the charges on this basis.                        See State v. Euceda-
                                                 -8-
Valle,    182    N.C.       App.     268,       271,     641     S.E.2d    858,    861,   cert.

denied,    361       N.C.    698,     652       S.E.2d      923    (2007)      (stating     that

“[w]hen a party changes theories between the trial court and an

appellate court, the [argument] is not properly preserved and is

considered waived”).

       However,       with      respect         to   two    of    Defendant’s      conspiracy

convictions, the State makes the following declaration in its

brief:     “At best, [D]efendant is correct that the conspiracy to

traffick        by     possession,             and     conspiracy         to     traffick     by

manufacture cannot each be supported [by the evidence] . . . and

that judgment must be arrested as to one of these counts,” and

cites     our        decision        in        Howell,      supra,        to   support      this

“concession.”         We agree with the State’s concession that in this

case, like in Howell, though there was substantial evidence “to

support    a     finding        of    [D]efendant’s            guilt      of   conspiracy     to

traffic” in methamphetamine, there was not substantial evidence

that    Defendant         engaged         in    “two     [separate]        conspiracies”      to

traffic.       169 N.C. App. at 748-49, 611 S.E.2d at 606.                             Further,

we choose to consider Defendant’s sufficiency argument to the

extent    that       he   argues      the       insufficiency        of    the    evidence    to

support     both          his      conviction          of      conspiracy         to   traffic

methamphetamine by possession and his conviction of conspiracy
                                       -9-
to     traffic    the   same   by     manufacture;     and,     following       our

resolution in Howell, we vacate judgment on one of Defendant’s

three     conspiracy       convictions,       namely   his      conviction       of

conspiracy to traffic methamphetamine by manufacture.

                   B:   Possession of 200 to 400 grams

       Defendant    argues     on    appeal     that   the    State     presented

insufficient evidence to support his possession of 200 to 400

grams of a mixture containing methamphetamine, an element of

trafficking by possession.           This argument is properly preserved;

however, we conclude it is without merit.1

       Specifically, Defendant argues that there was insufficient

evidence that the mixture in the bottle found under the Mini

Mart    counter    contained      methamphetamine.           Rather,    Defendant

contends    the    State   only     presented    evidence     that     the   bottle

1
  N.C. Gen. Stat. § 90-95(h)(3b)b., under which Defendant was
convicted, does not require that the crime involve 200 grams of
methamphetamine, but rather allows for a conviction if the
“mixture” which contains some amount of methamphetamine weighs
at least 200 grams. This Court held that under a prior version
of this statute, trafficking in methamphetamine was determined
by the amount of the methamphetamine itself and not the weight
of the entire mixture which contained the methamphetamine.
State v. Conway, 194 N.C. App. 73, 669 S.E.2d 40 (2008).
However, this statute was amended by the General Assembly in
2009 Session Law, Chapter 463, which provided “AN ACT TO AMEND
THE LAW REGARDING TRAFFICKING IN METHAMPHETAMINE AND AMPHETAMINE
TO CLARIFY THAT THE CHARGE OF TRAFFICKING IS BASED ON THE WEIGHT
OF THE ENTIRE POWDER OR LIQUID MIXTURE RATHER THAN THE WEIGHT OF
THE ACTUAL AMOUNT OF CONTROLLED SUBSTANCE IN THE POWDER OR
LIQUID MIXTURE.”
                                            -10-
contained four of the five ingredients – namely pseudoephedrine,

ammonium      nitrate,    lithium      metal       strips   and    Coleman        fuel   -

necessary       to    start     the        chemical    reaction     that      produces

methamphetamine, but that the State “presented no evidence that

sodium hydroxide[,]” also called caustic soda or lye, “had been

added    to     the   mixture”        to    complete    the      chemical     process.

Defendant’s theory was supported by testimony from his expert.

       Our review of the record, however, shows contrary evidence,

which supports the State’s position that the bottle found at the

Mini    Mart,   indeed,    contained         methamphetamine.        For     instance,

Special Agent Morrow Lee Tritt (“Agent Tritt”), a clandestine

laboratory expert with twenty years of experience at the State

Bureau of Investigation, testified to the presence of this fifth

ingredient in the bottle as follows:

              Q. And then at the bottom – what would be
              the bottom of the bottle, what would be the
              parts of it that we’re looking at there?

              A. These actually appear to be the little
              round beads of the amonia [sic] nitrate
              fertilizer. Also has sodium hydroxide in it
              and then the pseudoephedrine as well, along
              with the Coleman fuel and the lithium. Five
              items.

Further,      Elizabeth       Regan,       forensic    chemist    with      the     North

Carolina State crime lab, testified that she did not agree with

Defendant’s expert, but rather she indicated that one sample of
                                              -11-
the mixture she tested contained an “abundance of . . . 100,000

units[,]” which she opined was “a reportable amount.”                                Ms. Regan

said,    “[i]n      this     instance,         that     is    a   significant         amount.”

Accordingly,        there    was    substantial             evidence    that    at    least       a

portion of the mixture in the bottle had combined to become

methamphetamine.

      Defendant further contends that the testimony of his expert

revealed       that    the       State’s      evidence        regarding        its    chemical

analysis       of   the     substance         in      the    bottle    was     “not    .    .     .

scientifically valid,” and therefore inconsistent with State v.

Ward,    364    N.C.      134,    147,     694     S.E.2d     738,     747   (2010),       which

stated    that      “the     burden      is      on    the    State    to    establish          the

identity of any alleged controlled substance[,] . . . [and] some

form of scientifically valid chemical analysis is required.”                                     We

disagree.       Rather, the State’s evidence showed that a chemical

analysis was performed.               Specifically, Agent Michael Piwowar, a

forensic chemist with the State Bureau of Investigation, Crime

Laboratory Division, testified as follows:                            “The first thing I

did was, again, a marquis color test, which turned orange.                                      And

the      orange       indication         indicates            a   possibility          of         a

methamphetamine        or     a    methamphetamine-like               substance.           So    to

confirm the presence, I did use a GC mass spectrometer, which is
                                        -12-
an instrument that will actually separate out any components

contained into a sample.           And upon using that, I got the result

of methamphetamine and pseudoephedrine.”

    After reviewing the evidence in the record in the light

most favorable to the State, we conclude the State presented

sufficient evidence for the jury to infer that the bottle in

Defendant’s constructive possession contained a methamphetamine

mixture.

                   II:    Jury Instruction; Plain Error

    In Defendant’s next argument on appeal, he contends that

the trial court committed plain error in two respects when it

instructed the jury on the              conspiracy indictments.              We have

carefully reviewed the jury instruction and conclude that the

trial court did not commit error, much less plain error, in

either respect.

    In     this     case,       the     trial      court     provided    separate

instructions      for    each   of     the    three     conspiracy   indictments.

Defendant argues that because “[t]he evidence supported no more

than one agreement[,] . . . [t]he trial judge could not properly

instruct   the    jury    on    three       virtually    identical   conspiracies

without giving the jury the option of finding that the three

charges    constituted      only      one    conspiracy.”      In    other    words,
                                           -13-
Defendant does not argue that the trial court misstated the law

with   respect     to   any     one   of    the    three       conspiracies   charged.

Rather, Defendant argues that the trial court erred by failing

to provide an additional instruction that the jury could find

that   Defendant       had    only    entered     into     a    single   agreement   to

commit three crimes – rather than three separate agreements – in

which case, Defendant might have only been convicted of a single

conspiracy.        We note that we have ordered the judgment with

respect    to    one    of     Defendant’s        three    conspiracy      convictions

arrested based on our holding in Section I of this opinion.

However,    even    with      respect      to   the   two      remaining   conspiracy

convictions, we disagree with Defendant’s argument.

       A trial court is required to instruct “on every substantive

feature of the case, even in the absence of a request for such

an instruction[;]” however, “the trial court need not instruct

the jury with any greater particularity than is necessary to

enable the jury to apply the law to the substantive features of

the case arising on the evidence when . . . the defendant makes

no request for additional instructions.”                       State v. Atkinson, 39

N.C.   App.     575,    581,    251    S.E.2d      677,    682    (1979)    (citations

omitted).       “A substantive feature of a case is any component

thereof which is essential to the resolution of the facts in
                                            -14-
issue[;] [e]vidence which does not relate to the elements of the

crime     itself       or    the         defendant’s          criminal        responsibility

therefore are subordinate features of the case.”                              Id. (citations

omitted).

       In this case, Defendant’s proposed instruction on appeal,

that the jury had the “option of finding that the [multiple

conspiracy]       charges       [of       conspiracy]           constituted            only        one

conspiracy[,]”         would       not     have     been       an     instruction             on    a

“substantive       feature”         of    the    case,        even    had     the       Defendant

submitted a request, or lodged an objection, at trial.                                             See

State v. McNeill, 346 N.C. 233, 485 S.E.2d 284 (1997) (stating

that    the    defendant’s          “oral       request       to     modify       the     pattern

instruction”       was       “tantamount          to      a     request          for      special

instructions[,]” and holding that because the defendant “did not

submit either of his proposed modifications in writing . . . it

was    not    error    for     the       trial    court       to     fail     to      charge       as

requested”).          Defendant did not request that the trial court

give this additional instruction; rather, he contends it was

plainly       erroneous      for     the        trial     court       not        to    give        the

instruction ex mero motu.                  We find this argument unconvincing.

Here,    the    trial       court    instructed          the       jury     on     all    of       the

substantive features of the conspiracy cases; and it was not
                                           -15-
error, much less plain error, for the trial court to fail to

instruct the jury that it had the “option of finding that the

[multiple]      charges       [of     conspiracy]           constituted          only       one

conspiracy[,]” where no request was made by Defendant for the

instruction.

    Alternatively, Defendant argues the instructions “violated

the unanimity requirement by listing five co-conspirators in the

conjunctive[.]”           Specifically,        in     the      instructions         for     the

conspiracy    charges,       the     trial    court       stated      that    one    of     the

elements     the    State     had     to     prove    was       that     “Defendant        and

Charlotte    Stough,       Harley     Sheerer,       Tim       Luker,    Amanda     Clawson

and/or   Tripp      Parker    entered        into    an     agreement.”          Defendant

argues   that      this    conjunctive       instruction          deprived       him      of   a

unanimous    jury    verdict       because     some       of    the     jurors    may      have

believed     that    he      conspired       with     one       of      the   listed       co-

conspirators       while     other    jurors        may    have       believed      that       he

conspired with a different co-conspirator.                            We addressed this

identical argument in State v. Worthington, 84 N.C. App. 150,

159, 352 S.E.2d 695, 701, disc. review denied, 319 N.C. 677, 356

S.E.2d 785 (1987), and we are bound by the holding in that case

on this issue.
                                    -16-
    The defendant in Worthington was convicted of conspiracy to

sell/deliver cocaine.       The verdict sheet submitted to the jury

stated that the jury could find him guilty if it determined that

he had conspired “with Dalton Woodrow Worthington, Sr. and/or

Patricia Ann Newby . . . to sell or deliver [cocaine].”                      Id.

Similar    to    Defendant’s   argument      in   the     present    case,   the

defendant in Worthington argued that the verdict sheet language

deprived him of his right to a unanimous jury verdict because

“there is a possibility that some jurors found a conspiracy with

Worthington and others found a conspiracy with Newby.”                 Id.   Our

Court    rejected   this   argument,   holding     that    “the     instructions

were adequate to be sure that defendant’s right to a unanimous

verdict    was   not   violated.”      Id.        Accordingly,      Defendant’s

argument is overruled.

    III:     Double Jeopardy; Punitive Controlled Substances Tax

    In Defendant’s final argument on appeal, he contends the

denial of his motion to dismiss on double jeopardy grounds –

because the State had already exacted a criminal punishment by

assessing and collecting a punitive controlled substances tax –

was error.       Citing Lynn v. West, 134 F.3d 582, 593 (4th Cir.

1998),     Defendant    presents    this      argument      on      appeal   for

preservation and to urge this Court “to reconsider the soundness
                                         -17-
of   these    precedents.”         We    are    bound   by   the     decision     of   a

previous      panel    of   this    Court       on   this    issue     in    State     v.

Ballenger, 123 N.C. App. 179, 472 S.E.2d 572 (1996), aff’d per

curiam, 345 N.C. 626, 481 S.E.2d 84, cert. denied, 522 U.S. 817

(1997).      Therefore, this argument must necessarily fail.

                                  IV.    CONCLUSION

      For     the     reasons    stated        above,   we    vacate        Defendant’s

conviction     for     conspiracy       to   traffick   in    methamphetamine          by

manufacture and remand to the trial court to arrest judgment on

this conviction only.           Otherwise, we find no reversible error.

      NO ERROR in part, REVERSED AND REMANDED in part.

      Judge STROUD and Judge HUNTER, JR. concur.

      Report per Rule 30(e).
