                IN THE SUPREME COURT OF NORTH CAROLINA

                                    No. 143PA18

                                  Filed 10 May 2019

STATE OF NORTH CAROLINA

               v.
RAMELLE MILEK LOFTON



        On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 816 S.E.2d 207 (2018), finding no error in

part and vacating in part a judgment entered on 20 July 2016 by Judge Martin B.

McGee in Superior Court, Wayne County. Heard in the Supreme Court on 5 March

2019.


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

        William D. Spence for defendant-appellee.


        ERVIN, Justice.


        The issue before the Court in this case is whether an indictment returned for

the purpose of charging defendant Ramelle Milek Lofton with manufacturing

marijuana is fatally defective because it fails to allege that defendant acted with an

“intent to distribute.”   After careful consideration of the record in light of the

applicable law, we reverse the Court of Appeals’ decision to vacate defendant’s

manufacturing marijuana conviction and remand this case to the Court of Appeals
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                                    Opinion of the Court



for consideration of defendant’s challenge to the sufficiency of the evidence to support

that conviction.

       On 20 January 2015, officers of the Goldsboro Police Department obtained the

issuance of a warrant authorizing a search of defendant’s residence. While executing

this search warrant, investigating officers discovered loose marijuana seeds and

stems, a marijuana grinder, a digital scale, cigar wrappers, and clear plastic bags

with green residue in a dresser and aluminum foil-lined walls and a light hanging

from a hanger above a blue plastic container that had dirt in its corners, a container

lid into which circular holes had been cut, and a stack of perforated Styrofoam cups

in a closet. In addition, investigating officers seized a bag of fertilizer, planting rocks,

and a book containing instructions for growing marijuana from the closet. After these

items had been discovered, defendant admitted to the investigating officers that he

had created the growing facility, that the materials discovered in the residence

belonged to him, and that he had attempted to grow marijuana five or six years

earlier.

       On 2 May 2016, the Wayne County grand jury returned a bill of indictment

charging    defendant     with   manufacturing       marijuana,    possession     of   drug

paraphernalia, and possession of marijuana. In the indictment returned against

defendant for the purpose of charging him with manufacturing marijuana, the grand

jury alleged that defendant “unlawfully, willfully and feloniously did manufacture

[marijuana] . . . by producing, preparing, propagating and processing a controlled


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substance.” The charges against defendant came on for trial before the trial court

and a jury at the 18 July 2016 criminal session of Superior Court, Wayne County. On

20 July 2016, the jury returned a verdict convicting defendant of attempting to

manufacture marijuana and possessing marijuana and acquitting defendant of

possessing drug paraphernalia.      Based upon the jury’s verdict, the trial court

consolidated defendant’s convictions for judgment and sentenced defendant to a term

of six to seventeen months imprisonment, suspended defendant’s sentence, and

placed him on supervised probation for a period of twenty-four months. Defendant

noted an appeal to the Court of Appeals from the trial court’s judgment.

      In seeking relief from the trial court’s judgment before the Court of Appeals,

defendant argued that the trial court had erred by denying his motion to dismiss the

manufacturing marijuana charge for insufficiency of the evidence. On 1 May 2018,

the Court of Appeals filed an opinion finding no error in defendant’s conviction for

possessing marijuana and vacating defendant’s attempted manufacturing marijuana

conviction on the grounds that the indictment underlying that conviction was fatally

defective given the failure of the manufacturing marijuana indictment to allege that

defendant had acted with an “intent to distribute.” State v. Lofton, ___ N.C. App. ___,

___, 816 S.E.2d 207, 211 (2018).

      In reaching this result, the Court of Appeals relied upon this Court’s decision

in State v. Brown, 310 N.C. 563, 313 S.E.2d 585 (1984) (citing State v. Childers, 41

N.C. App. 729, 732, 255 S.E.2d 654, 656-57, disc. rev. denied, 298 N.C. 302, 259 S.E.2d


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916 (1979)), which stated that a conviction for manufacturing a controlled substance

“does not require an intent to distribute unless the activity constituting manufacture

is preparation or compounding.” Lofton, ___ N.C. App. at ___, 816 S.E.2d at 210

(emphasis omitted) (quoting Brown, 310 N.C. at 568, 313 S.E.2d at 588). In view of

the fact that the indictment returned against defendant for the purpose of charging

him with manufacturing marijuana “included preparation as a basis” for its

contention that defendant had unlawfully manufactured marijuana, the Court of

Appeals concluded that the indictment “failed to allege a required element—intent to

distribute.” Id. at ___, 816 S.E.2d at 211. As a result, “because the State chose to

allege four separate bases pursuant to which it could attempt to prove [d]efendant’s

guilt of the single count of manufacturing a controlled substance,” the Court of

Appeals concluded that “it was necessary that all four of those bases were alleged

with sufficiency” in the indictment in order “to confer jurisdiction on the trial court

for the manufacturing charge,” with “[t]he omission of the element of intent from the

indictment   charging    [d]efendant   of   manufacturing        a   controlled   substance

constitut[ing] a fatal defect.” Id. at ___, 816 S.E.2d at 211.

      On 24 May 2018, the State filed a petition seeking discretionary review of the

Court of Appeals’ decision. In its petition, the State argued that “[a]n indictment

alleging a violation of Section 90-95(a)(1) need not contain allegations negating every

statutory exclusion,” citing State v. Land, 223 N.C. App. 305, 311, 733 S.E.2d 588,

592 (2012), aff’d, 366 N.C. 550, 742 S.E.2d 803 (2013) (holding that an indictment


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                                       Opinion of the Court



charging the unlawful delivery of marijuana did not need to allege that the defendant

had received no remuneration on the grounds that, since the defendant’s guilt could

be proved by either evidence of a transfer of more than five grams or a transfer for

remuneration and since, as stated in Land, “the methods of proof set out in [Section]

90-95(b)(2) are mere evidentiary matters, they need not be included in the

indictment” (alterations in the petition)). In addition, the State contended that “it

was not necessary to specify the manner of manufacturing, and the terms ‘producing,

preparing, propagating, and processing’ may be disregarded as surplusage,” citing

State v. Miranda, 235 N.C. App. 601, 607, 762 S.E.2d 349, 354 (2014). According to

the State, even though “intent to distribute is an ‘element’ of manufacturing, in the

sense that the State has to disprove preparation for personal use at trial,” “it does not

follow that intent to distribute is an element, in the sense that an indictment which

omits it is fatally defective.” As a result of the fact that this case represents the first

occasion upon which “the Court of Appeals [found] an indictment for manufacturing

defective for failure to allege intent to distribute” and “created an entirely new rule

for indictments without notice or hearing from either of the parties on appeal,” the

State urged us to grant further review in this case.1 On 5 December 2018, the Court

granted the State’s discretionary review petition.




      1   Defendant did not file a response to the State’s discretionary review petition.

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                                   Opinion of the Court



      In seeking to persuade us to reverse the Court of Appeals’ decision in this case,

the State begins by arguing that “[a]n indictment need not contain ‘allegations of an

evidentiary nature,’ ” citing N.C.G.S. §15A-924(a)(5) (2015), with such unnecessary

allegations “includ[ing] methods of proving such crimes.” Although an indictment

must, “[e]xcept where a short form is authorized,” “allege all the essential elements

of the offense,” citing State v. Jerrett, 309 N.C. 239, 259, 307 S.E.2d 339, 350 (1983),

“[e]videntiary matters need not be alleged,” quoting State v. Coker, 312 N.C. 432, 437,

323 S.E.2d 343, 347 (1984).     In addition, the State asserts that “[t]he use of a

conjunctive . . . does not require the State to prove various alternative matters

alleged,” quoting State v Montgomery, 331 N.C. 559, 569, 417 S.E.2d 742, 747 (1992)

(alterations in original). As a result, the State contends that “[a]n indictment is not

fatally defective so long as one of the alternatives stated sufficiently alleges an

offense,” citing State v. Ellis, 368 N.C. 342, 347, 776 S.E.2d 675, 679 (2015).

      As the Court of Appeals concluded in Childers, 41 N.C. App. at 732, 255 S.E.2d

at 656-57, and this Court concluded in Brown, 310 N.C. at 568, 313 S.E.2d at 588,

“the offense of manufacturing a controlled substance does not require an intent to

distribute unless the activity constituting manufacture is preparation or

compounding,” id. at 568, 313 S.E.2d at 588. Arguing in reliance upon the Court of

Appeals’ decision in Land, 223 N.C. App. at 310-11, 733 S.E. 2d at 592, the State

contends that, since the “ultimate fact” that the State must establish to support a

manufacturing marijuana conviction is “manufacture” and since the various methods


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                                  Opinion of the Court



of manufacture “are evidentiary matters that need not be included in the indictment,”

citing Coker, 312 N.C. at 437, 323 S.E.2d at 347 (stating that “[e]videntiary matters

need not be alleged”), there was no need for the indictment returned for the purpose

of charging defendant with manufacturing marijuana in this case to allege that

defendant acted with an “intent to distribute.”

      Although the indictment returned against defendant for the purpose of

charging him with manufacturing marijuana did allege that he committed the offense

in question “by producing, preparing, propagating and processing” marijuana, the

State contends that these allegations are “harmless surplusage and may properly be

disregarded,” citing State v. Pickens, 346 N.C. 628, 646, 488 S.E.2d 162, 172 (1997).

Even if alleging that defendant acted with the “intent to distribute” was necessary to

charge defendant with manufacturing marijuana by “preparing,” the absence of such

an “intent to distribute” allegation did “not invalidate the indictment” given that

“[a]lleging various methods of proof did not obligate the State to prove each one,”

citing Montgomery, 331 N.C. at 569, 417 S.E.2d at 747, and Ellis, 368 N.C. at 347,

776 S.E.2d at 679. As a result, since “[t]he Court of Appeals’ . . . assertion that the

State must prove each alternative method of proof alleged in the indictment is flatly

contradicted by this Court’s binding precedent,” citing Montgomery, 331 N.C. at 569,

417 S.E.2d at 747, and State v. Birdsong, 325 N.C. 418, 422, 384 S.E.2d 5, 8 (1989),

the State contends that the “Court of Appeals erred in finding the omission [of an




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                                   Opinion of the Court



‘intent to distribute’ allegation] ‘tainted’ the indictment, which sufficiently alleged

manufacture by other means.”

      In arguing that the Court should affirm the Court of Appeals’ decision to vacate

his attempted manufacturing marijuana conviction, defendant contends that, “if

‘intent to distribute’ is an element of the crime of manufacturing marijuana by

preparation, and the State chooses to allege manufacturing by preparation, then ‘with

intent to distribute’ must also be alleged within the bill of indictment.” In light of

this Court’s decision in Brown, 310 N.C. at 569, 313 S.E.2d at 588, that “intent to

distribute is an essential element of the felony of manufacturing marijuana by

preparation” and the fact that “preparation is included within the manufacturing

indictment,” defendant contends that an “ ‘intent to distribute’ must also be

included.”   In defendant’s view, the State’s reliance upon the Court of Appeals’

decision in Land, 223 N.C. App. at 310-11, 733 S.E. 2d at 592, is misplaced given that

Land “involved delivery of a controlled substance rather than manufacturing[.]”

After conceding that the Court of Appeals’ logic appears to conflict with this Court’s

decision in Montgomery, 331 N.C. at 569, 417 S.E.2d at 747, concerning the effect of

the use of disjunctive language in indictments, defendant contends that this apparent

error does not necessitate a decision to overturn the Court of Appeals’ decision in light

of the Court of Appeals’ express statement that the language in question “d[id] not

impact [its] jurisdictional analysis.” As a result, given that the State chose “to word

the indictment as it did,” defendant asserts that the Court of Appeals correctly held


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                                    Opinion of the Court



that “the jury was allowed to convict [d]efendant on a theory of manufacturing a

controlled substance that was not supported by a valid indictment.”

      According to well-established North Carolina law, “a valid bill of indictment is

essential to the jurisdiction of the trial court to try an accused for a felony.”2 State v.

Campbell, 368 N.C. 83, 86, 772 S.E.2d 440, 443 (2015) (quoting State v. Sturdivant,

304 N.C. 293, 308, 283 S.E.2d 719, 729 (1981) (citations omitted)). N.C.G.S. § 15A-

924(a)(5) requires that a criminal pleading contain “[a] plain and concise factual

statement in each count which, without allegations of an evidentiary nature, asserts

facts supporting every element of a criminal offense and the defendant’s commission

thereof with sufficient precision clearly to apprise the defendant . . . of the conduct

which is the subject of the accusation.” N.C.G.S. § 15A-924(a)(5) (2017). Thus, “an

indictment ‘must allege lucidly and accurately all the essential elements of the

offense endeavored to be charged.’ ” State v. Hunt, 357 N.C. 257, 267, 582 S.E.2d 593,

600 (citation omitted), cert. denied, 539 U.S. 985, 124 S. Ct. 44, 156 L. Ed. 2d 702

(2003). Put another way, an indictment suffices to charge a defendant with a criminal

offense if the defendant would be guilty of committing a crime if the jury found beyond

a reasonable doubt that the defendant had acted in the manner described in the



      2  As a result of the fact that an indictment will support a conviction “of the crime
charged therein or of a less degree of the same crime, or of an attempt to commit the crime
so charged, or of an attempt to commit a less degree of the same crime,” N.C.G.S. § 15-170
(2017), defendant’s conviction for the attempted manufacture of marijuana rested upon the
indictment returned against him for the purpose of charging him with manufacturing
marijuana.

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                                    Opinion of the Court



indictment. “A valid indictment, among other things, serves to ‘identify the offense’

being charged with certainty, to ‘enable the accused to prepare for trial,’ and to

‘enable the court, upon conviction, to pronounce [the] sentence.’ ” State v. Rankin,

371 N.C. 885, 886, 821 S.E.2d 787, 790 (2018) (quoting State v. Saults, 294 N.C. 722,

726, 242 S.E.2d 801, 805 (1978)). The facial validity of an indictment “should be

judged based solely upon the language of the criminal pleading in question without

giving any consideration to the evidence that is ultimately offered in support of the

accusation contained in that pleading.” Ellis, 368 N.C. at 347, 776 S.E.2d at 679.

“The alleged failure of a criminal pleading to charge the essential elements of a stated

offense is an error of law that this Court reviews de novo.” State v. Williams, 368

N.C. 620, 622, 781 S.E.2d 268, 270 (2016) (citing Sturdivant, 304 N.C. at 308-11, 283

S.E.2d at 729-31). As a result, the ultimate issue for our consideration in this case is

whether the allegations contained in the indictment returned against defendant for

the purpose of charging him with manufacturing marijuana, if sustained by proof,

suffice to establish his guilt of the offense in question.

       N.C.G.S. § 90-95(a)(1) makes it unlawful “[t]o manufacture, sell or deliver, or

possess with intent to manufacture, sell or deliver, a controlled substance,” N.C.G.S.

§ 90-95(a)(1) (Supp. 2018), with “manufacture” being defined as including “the

production, preparation, propagation, compounding, . . . or processing of a controlled

substance by any means,” but excluding “the preparation or compounding of a

controlled substance by an individual for his own use,” id. § 90-87(15) (2017). In light


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                                   Opinion of the Court



of the relevant statutory language, this Court held in Brown that “the offense of

manufacturing a controlled substance does not require an intent to distribute unless

the activity constituting manufacture is preparation or compounding.” Brown, 310

N.C. at 568, 313 S.E.2d at 588. As a result, this Court has clearly held that, to

establish a defendant’s guilt of manufacturing a controlled substance by “preparing”

or “compounding” that controlled substance, the State must prove beyond a

reasonable doubt that the defendant “prepared” or “compounded” the controlled

substance in question with the “intent to distribute” it.

      Although the State argues that the ultimate fact that the State must prove to

establish defendant’s guilt of manufacturing a controlled substance in violation of

N.C.G.S. § 90-95(a)(1) is that defendant “manufactured” the controlled substance in

question and that the specific manner in which defendant “manufactured” that

controlled substance need not be alleged in a valid indictment, we need not determine

whether this argument is or is not valid to properly decide this case. As we have

already noted, the indictment returned against defendant for the purpose of charging

him with manufacturing marijuana alleged the defendant “did manufacture

[marijuana] . . . by producing, preparing, propagating and processing” it. Thus, the

indictment at issue in this case alleged that defendant manufactured marijuana in

four different ways, one of which required a showing of an “intent to distribute” in

order for the State to obtain a conviction and three of which did not.




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                                   Opinion of the Court



      After acknowledging that certain of the ways in which defendant allegedly

manufactured marijuana did not require proof that defendant acted with an “intent

to distribute,” the Court of Appeals concluded that “it was necessary that all four of

those bases were alleged with sufficiency to confer jurisdiction on the trial court for

the manufacturing charge.” Lofton, ___ N.C. App. at ___, 816 S.E.2d at 211 (emphasis

omitted). The result reached by the Court of Appeals with respect to this issue is,

however, precluded by our prior indictment-related jurisprudence, which, as the

State notes, establishes that “[t]he use of a conjunctive in the indictment does not

require the State to prove various alternative matters alleged,” Montgomery, 331 N.C.

at 569, 417 S.E.2d at 747 (citing State v. Williams, 314 N.C. 337, 356, 333 S.E.2d 708,

721 (1985)), and that “[t]he use of the conjunctive form to express alternative theories

of conviction is proper,” Birdsong, 325 N.C. at 422-23, 384 S.E.2d at 7-8 (first citing

State v. Swaney, 277 N.C. 602, 612, 178 S.E.2d 399, 405, cert. denied, 402 U.S. 1006,

91 S. Ct. 2199, 29 L. Ed. 2d 428 (1971); then citing State v. Moore, 315 N.C. 738, 743,

340 S.E.2d 401, 404 (1986) (stating that, while “the indictment may allege more than

one purpose for the kidnapping, the State has to prove only one of the alleged

purposes in order to sustain a conviction of kidnapping”); and then citing State v.

Gray, 292 N.C. 270, 293, 233 S.E.2d 905, 920 (1977) (opining that, “[w]here an

indictment sets forth conjunctively two means by which the crime charged may have

been committed, there is no fatal variance between indictment and proof when the

state offers evidence supporting only one of the means charged”)). In the same vein,


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                                   Opinion of the Court



we recently held, in a case in which the State alleged that “injury to personal property

was committed against multiple entities, at least one of which is capable of owning

property,” that the “pleading is not facially invalid.” Ellis, 368 N.C. at 347, 776 S.E.2d

at 679. Assuming, without in any way deciding, that a valid indictment charging that

a defendant manufactured a controlled substance by “preparing” or “compounding”

must allege that the defendant acted with an intent to distribute, the indictment

returned against defendant for the purpose of charging him with manufacturing a

controlled substance in this case sufficed to give the trial court jurisdiction to enter

judgment against defendant based upon his conviction for manufacturing marijuana

given that it also alleged that defendant manufactured marijuana by “producing,”

“propagating,” and “processing” it.

      Although both the Court of Appeals and defendant assert that a decision to

uphold the facial validity of the indictment returned against defendant for the

purpose of charging him with manufacturing marijuana would allow the jury “to

convict [d]efendant on a theory of manufacturing a controlled substance that was not

supported by a valid indictment,” Lofton, ___ N.C. App. at ___, 816 S.E.2d at 211, this

concern rests upon a failure to recognize the difference between a challenge to the

facial validity of an indictment, which raises a jurisdictional issue, and a challenge to

the trial court’s instructions, which does not. Simply put, the concern expressed by

the Court of Appeals and defendant is properly raised by challenging the trial court’s

decision to instruct the jury that it could convict defendant on the basis of a theory


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                                   Opinion of the Court



not supported by the indictment rather than on the basis of a challenge to the facial

validity of the indictment. However, given that the issue before us in this case is

whether the indictment returned against defendant for the purpose of charging him

with manufacturing marijuana was fatally defective rather than whether the trial

court erroneously instructed the jury on the basis of a theory that had not been

alleged in the relevant indictment, the concern expressed by both the Court of

Appeals and defendant has no bearing upon the proper resolution of the issue that is

before us in this case.

        Thus, for all of these reasons, we hold that the indictment returned against

defendant for the purpose of charging him with manufacturing marijuana was not

fatally defective and that the Court of Appeals erred by reaching a contrary

conclusion. As a result, the Court of Appeals’ decision is reversed and this case is

remanded to the Court of Appeals for consideration of defendant’s challenge to the

sufficiency of the evidence to support his attempted manufacturing marijuana

conviction.

        REVERSED AND REMANDED.

        Justice DAVIS did not participate in the consideration or decision of this

case.




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