              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-636

                                Filed: 15 March 2016

Watauga County, No. 14 CRS 50091

STATE OF NORTH CAROLINA

             v.

AUSTIN LYNN MILLER


      On writ of certiorari to review judgment dated 4 February 2015 by Judge Eric

C. Morgan in Watauga County Superior Court. Heard in the Court of Appeals 18

November 2015.


      Attorney General Roy Cooper, by Assistant Attorney General Jill F. Cramer, for
      the State.

      Jeffery William Gillette for Defendant.


      STEPHENS, Judge.


      The sole issue presented by this appeal is one of first impression: whether

Defendant Austin Lynn Miller’s conviction under subsection 90-95(d1)(1)(c) of our

North Carolina General Statutes, which makes possession of a product containing

pseudoephedrine      by   any     person    previously    convicted    of   possessing

methamphetamine a class H felony, violated his due process rights. For the reasons

which follow, we hold that Miller’s due process rights under the United States

Constitution were violated by his conviction of a strict liability offense criminalizing
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otherwise innocuous and lawful behavior without providing him notice that a

previously lawful act had been transformed into a felony for the subset of convicted

felons to which he belonged.

                           Factual and Procedural History

      Like the legislative branches of many other states across the nation, our

General Assembly has passed various laws over the past three decades seeking to

combat the scourge of methamphetamine abuse. Each of the provisions discussed

herein falls under Article 5, Chapter 90 of our General Statutes: the North Carolina

Controlled Substances Act (“the CSA”). Pertinent to this case, effective 1 January

2012, section 90-113.52A of the CSA (“the record-keeping statute”) mandated

electronic   record   keeping   by    retail   stores       that   sell   products   containing

pseudoephedrine, an essential ingredient in the manufacture of methamphetamine.

Subsection (a) of the record-keeping statute provides that “[a] retailer shall, before

completing a sale of a product containing a pseudoephedrine product, electronically

submit the required information to the National Precursor Log Exchange (NPLEx)

administered by the National Association of Drug Diversion Investigators

(NADDI)[.]” N.C. Gen. Stat. § 90-113.52A(a) (2013). In turn, subsection (c) of the

record-keeping statute specifies that “NADDI shall forward North Carolina

transaction records in NPLEx to the State Bureau of Investigation weekly and

provide real-time access to NPLEx information through the NPLEx online portal to



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law enforcement in the State . . . .” N.C. Gen. Stat. § 90-113.52A(c). Finally, the

General Assembly mandated that the record-keeping “system shall be capable of

generating a stop sale alert, which shall be a notification that completion of the sale

would result in the seller or purchaser violating the quantity limits set forth in

[section] 90-113.52.”1 N.C. Gen. Stat. § 90-113.52A(d).

       Prior to 1 December 2013, section 90-95, which proscribes violations and

penalties under the CSA, made it “unlawful for any person to . . . [p]ossess an

immediate precursor chemical with intent to manufacture a controlled substance . . .

[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 a controlled substance.” N.C. Gen. Stat. § 90-95(d1)(1)(a)-(b) (2011)

(emphasis added). Thus, before 1 December 2013, the purchase and possession of

pseudoephedrine products was legal for all citizens, even those with prior

methamphetamine convictions, unless the products were possessed with the

knowledge or intent that they be used to manufacture methamphetamine. Effective

1 December 2013, section 90-95(d1)(1) was amended to add subsection (c) (“the new




1 The reference to quantity limits in section 90-113.52 appears to be a clerical error as that statute
includes no quantity limits on sales, but rather specifies other regulations for the sale of
pseudoephedrine products, such as age restrictions and a requirement that those products be stored
behind the pharmacy counter. See N.C. Gen. Stat. § 90-113.52 (2013). However, section 90-113.53,
entitled “Pseudoephedrine transaction limits[,]” does specify daily and monthly quantity limits on the
delivery and purchase of pseudoephedrine products. See N.C. Gen. Stat. § 90-113.53 (2013) (limiting
sales to 3.6 grams per calendar day and 9 grams in any 30-day period).

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subsection”), making it “unlawful for any person to . . . [p]ossess a pseudoephedrine

product if the person has a prior conviction for the possession or manufacture of

methamphetamine.”         N.C. Gen. Stat. § 90-95(d1)(1)(c) (2013).            Violation of this

provision is a Class H felony. Id.

       On Monday, 7 January 2014, Detective John Hollar of the Watauga County

Sheriff’s Office (“WCSO”) reviewed the weekend’s NPLEx logs and saw that Miller, a

former methamphetamine offender,2 had purchased one 3.6 gram box of allergy and

congestion relief medicine, a pseudoephedrine product, from the Boone Walmart. As

noted supra, Miller’s purchase and possession of this product in this amount had been

entirely lawful up until the new subsection went into effect the previous month.

Hollar went to the Walmart to investigate Miller’s purchase where he learned that

the store’s video surveillance system had not been working over the weekend.

However, Hollar did obtain a copy of a Walmart receipt that appeared to contain

Miller’s electronic signature and indicated that Miller purchased a pseudoephedrine

product on Saturday afternoon.

       On 23 January 2014, Hollar obtained an arrest warrant for Miller which he

served on Miller at his probation officer’s office the following day. On 4 August 2014,

Miller was indicted under the new subsection for possessing a pseudoephedrine


2 On 3 October 2012, a judgment was entered upon Miller’s conviction on one count each of possession
of a methamphetamine precursor and maintaining a vehicle or dwelling for sale or delivery of a
controlled substance. The trial court imposed a sentence of 16 to 20 months, suspended the sentence,
and placed Miller on 36 months of supervised probation.

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product having been previously convicted of methamphetamine possession. On 4

February 2015, Miller filed a motion to declare the new subsection unconstitutional

as applied to him, citing Lambert v. California, 355 U.S. 225, 2 L. Ed. 2d 228 (1957).

      The matter came on for trial at the 2 February 2015 criminal session of

Watauga County Superior Court, the Honorable Eric C. Morgan, Judge presiding.

During a pretrial motion hearing, Miller argued that the new subsection is

unconstitutional because it lacks any element of scienter or intent and the State

failed to provide him any notice of the statute and its implications. In response, the

State contended that no intent element was necessary because of the extreme danger

to the public posed by methamphetamine labs.             The State compared the new

subsection to laws prohibiting the possession of a firearm by a convicted felon, which

the State contended have been upheld as constitutional despite the lack of any intent

element or notice provision. After hearing arguments of counsel, the trial court

denied Miller’s motion to declare the new subsection unconstitutional, stating:

             All right, in this matter, coming on to be heard, and being
             heard, on the defendant’s motion to declare [section] 90-
             95(d1)(1)(c) unconstitutional.        The [c]ourt having
             considered the arguments of counsel, having reviewed the
             authorities cited by counsel together with the pleadings
             filed in this action, and the [c]ourt having considered the
             [S]tate’s argument of statute, [section] 90-95(d1)(1)(c) is
             analogous to North Carolina[’s] possession of firearm by
             felon statute found in [section] 14-415.1. And the [c]ourt
             noting that the possession of firearm by felon statute has
             been upheld by North Carolina courts as constitutional in
             the cases of [] State [v.]Tanner, 39 N.C. App. 668; State [v.]


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             Cooper, 364 N.C. 404; and State [v.] Coltrane, 188 N.C.
             App. 498, among other cases.

             Further, the Court having reviewed [section] 90-
             95(d1)(1)(c), in the exercise of its discretion, denies [sic] to
             declare N.C. Gen. Stat. [§] 90-95(d1)(1)(c) unconstitutional.

      At trial, the State offered testimony, inter alia, from Hollar about his

investigation, as described supra, and from the Walmart pharmacy manager about

the system for tracking the sale of pseudoephedrine products. At the close of the

State’s evidence, Miller moved to dismiss,

             based on the testimony of the witnesses that have been
             presented by the [S]tate. Chiefly, the pharmacy manager
             and the lack of knowledge that she presented regarding
             how this data is entered, how it could, or could not be,
             manipulated by a pharmacy worker, and just, I don’t
             believe that the [S]tate has presented enough evidence that
             a jury could reasonably find Mr. Miller guilty of this, of the
             crime as charged. I will also note that there is a defect in
             the indictment. I will argue that it is a fatal defect.

The trial court denied the motion to dismiss, and Miller offered no evidence. During

the charge conference, Miller requested a jury instruction on specific intent, and the

court agreed to give North Carolina Pattern Jury Instruction 120.10, informing the

jury that intent “must ordinarily be proved by circumstances from which it may be

inferred.” However, the court did not instruct the jury that the offense with which

Miller was charged required the State to prove any element of intent. The jury

returned a verdict of guilty, and the trial court imposed a sentence of 6 to 17 months,

suspended the sentence, and placed Miller on supervised probation for 24 months.


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                         Miller’s Petition for Writ of Certiorari

       During his sentencing hearing, Miller indicated that he intended to appeal his

conviction.   The parties then discussed an appeal bond, and the court entered

judgment on Miller’s conviction. Following the imposition of judgment, the trial court

asked Miller if he wanted an appointed attorney for his appeal and he responded in

the affirmative. As Miller concedes in his petition for writ of certiorari, however, he

failed to enter proper notice of appeal following entry of judgment. Rule 4 of the Rules

of Appellate Procedure provides that notice of appeal in criminal actions can be taken

by “(1) giving oral notice of appeal at trial, or (2) filing notice of appeal with the clerk

of superior court and serving copies thereof upon all adverse parties within fourteen

days after entry of the judgment . . . .” N.C.R. App. P. 4(a). Oral notice of appeal

must be given after the entry of judgment. See N.C. Gen. Stat. § 15A-1444(a) (2015)

(“A defendant who has entered a plea of not guilty to a criminal charge, and who has

been found guilty of a crime, is entitled to appeal as a matter of right when final

judgment has been entered.” (emphasis added)).

       Recognizing his failure to give timely notice of appeal, on 5 June 2015, Miller

filed in this Court a petition for writ of certiorari asking that we exercise our

discretion to address the merits of his argument. See, e.g., State v. McCoy, 171 N.C.

App. 636, 638, 615 S.E.2d 319, 320 (“While this Court cannot hear [a] defendant’s

direct appeal [for failure to properly give notice of appeal], it does have the discretion



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to consider the matter by granting a petition for writ of certiorari.”), appeal dismissed,

360 N.C. 73, 622 S.E.2d 626 (2005). On 17 June 2015, the State filed its response to

Miller’s petition, acknowledging our discretion to grant the petition. By order entered

24 June 2015, Miller’s petition for writ of certiorari was referred to this panel. We

allow Miller’s petition and address the merits of his appellate argument.

                                       Discussion

      Miller argues that the new subsection is unconstitutional as applied to him in

that it violates the due process clauses of the United States and North Carolina

Constitutions. Specifically, Miller contends that the new subsection violates his

substantive due process rights by subjecting him to punishment for a serious offense

without requiring any evidence of intent and violates his procedural due process

rights by punishing him for an act that was legal a month earlier without any notice

to him that such conduct was now criminal. We hold that Miller’s conviction of the

strict liability offense created by the new subsection in the absence of notice violated

his rights under the Due Process Clause of the Fourteenth Amendment to the United

States Constitution.

I. Standard of review

      “The standard of review for alleged violations of constitutional rights is de

novo.” State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009) (citation




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omitted), appeal dismissed and disc. review denied, 363 N.C. 857, 694 S.E.2d 766

(2010).

II. Strict liability nature of the offense defined in the new subsection

      As part of his argument in the trial court and on appeal, Miller first urges that

an intent element should be read into the new subsection despite the absence of

explicit language regarding mens rea. Because we conclude that this omission was

an intentional decision by our General Assembly, we must decline to graft an intent

element onto this new offense.

      “It is within the power of the Legislature to declare an act criminal irrespective

of the intent of the doer of the act. The doing of the act expressly inhibited by the

statute constitutes the crime.” State v. Hales, 256 N.C. 27, 30, 122 S.E.2d 768, 771

(1961) (citations omitted).

             Whether a criminal intent is a necessary element of a
             statutory offense is a matter of construction to be
             determined from the language of the statute in view of its
             manifest purpose and design. As a cardinal principle of
             statutory interpretation, if the language of the statute is
             clear and is not ambiguous, we must conclude that the
             legislature intended the statute to be implemented
             according to the plain meaning of its terms. Thus, in
             effectuating legislative intent, it is the duty of the courts to
             give effect to the words actually used in a statute and not
             to delete words used or to insert words not used.

State v. Watterson, 198 N.C. App. 500, 505, 679 S.E.2d 897, 900 (2009) (citations,

internal quotation marks, and brackets omitted). The Watterson Court went on to



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note that, where “the General Assembly specifically included additional intent

provisions in [certain] subsections of the statute, we can presume that it did not

intend for courts to impose additional intent requirements in the other subsections.”

Id. at 505-06, 679 S.E.2d at 900 (citing N.C. Dep’t of Revenue v. Hudson 196 N.C. App.

765, 768, 675 S.E.2d 709, 711 (2009) (“When a legislative body includes particular

language in one section of a statute but omits it in another section of the same Act, it

is generally presumed that [the legislative body] acts intentionally and purposely in

the disparate inclusion or exclusion.”) (citation and internal quotation marks

omitted)).

       As noted supra, the new subsection makes it a felony to “[p]ossess a

pseudoephedrine product if the person has a prior conviction for the possession or

manufacture of methamphetamine.” N.C. Gen. Stat. § 90-95(d1)(1)(c). The plain

language of the new subsection does not specify any intent element,3 and we cannot



3 We recognize that any possession of a controlled substance offense contains an implied knowledge
element, to wit, that the defendant must know he possesses the controlled substance and must also
know the identity of the substance. See State v. Galaviz-Torres, 368 N.C. 44, 52, 772 S.E.2d 434, 439
(2015) (“[F]or the defendant to be guilty [of possession of a controlled substance], he had to both
knowingly possess a substance and know that the substance that he possessed was the substance that
he was charged with possessing.”) (discussing State v. Coleman, 227 N.C. App. 354, 742 S.E.2d 346,
disc. review denied, 367 N.C. 271, 752 S.E.2d 466 (2013)). Here, Miller does not dispute that he knew
he was buying a pseudoephedrine product. However, the act criminalized by the new subsection is not
merely possessing a pseudoephedrine product, an undertaking that is entirely legal for most citizens
of our State, but rather possessing a pseudoephedrine product while prohibited by law from doing so
on the basis of a past methamphetamine conviction. This is an entirely different situation from
possession of controlled substances, which is illegal for all citizens. Thus, we reject the State’s
assertion that the new subsection is “a straightforward criminal statute prohibiting possession of a
controlled substance by a person with a prior conviction for the possession or manufacture of
methamphetamine.”

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“insert words not used.” Watterson, 198 N.C. App. at 505, 679 S.E.2d at 900 (citations

omitted). Further, a careful reading of the new subsection in context reveals that our

General Assembly specifically included intent elements in each of the other,

previously enacted subsections of 90-95(d1):

             (1) Except as authorized by this Article, it is unlawful for
             any person to:

                 a. Possess an immediate precursor chemical with
             intent to manufacture a controlled substance; or

                b. Possess or distribute an immediate precursor
             chemical knowing, or having reasonable cause to believe,
             that the immediate precursor chemical will be used to
             manufacture a controlled substance; or

                c. Possess a pseudoephedrine product if the person has
             a prior conviction for the possession or manufacture of
             methamphetamine.

             Any person who violates this subdivision shall be punished
             as a Class H felon, unless the immediate precursor is one
             that can be used to manufacture methamphetamine.

             (2) Except as authorized by this Article, it is unlawful for
             any person to:

                 a. Possess an immediate precursor chemical with
             intent to manufacture methamphetamine; or

                b. Possess or distribute an immediate precursor
             chemical knowing, or having reasonable cause to believe,
             that the immediate precursor chemical will be used to
             manufacture methamphetamine.

             Any person who violates this subdivision shall be punished
             as a Class F felon.


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N.C. Gen. Stat. § 90-95(d1) (emphasis added).4 We must presume that our General

Assembly acted “intentionally and purposely in the disparate inclusion or exclusion”

of an intent element in each subsection, see Watterson, 198 N.C. App. at 506, 679

S.E.2d at 900, and accordingly, we conclude that our legislature intended for the new

subsection to be exactly what its plain language indicates: a strict liability offense

without any element of intent.5

III. Consideration of the constitutionality of the new subsection

        We now turn to Miller’s contention that the new subsection is unconstitutional

as applied to him insofar as it is a strict liability offense that criminalizes otherwise

innocuous and lawful behavior by him without providing him notice that those acts

are now crimes. In our consideration of this contention, we emphasize the distinction

between intent to commit a crime, which, as discussed supra, the new subsection does

not require, and notice, i.e., the knowledge that one is subject to criminal penalties

for a particular act. As discussed herein, we conclude that the absence of any notice




4 Although not pertinent to this appeal, we note that our General Assembly has since amended the
new subsection. Session Law 2014-115, s. 41(a) made a minor stylistic change in subdivision (d1)(1)(c)
and rewrote the undesignated paragraph of that subdivision. Session Law 2015-32, s. 1, effective 1
December 2015, inter alia, expanded the list of previous convictions in the first sentence of subdivision
(d1)(1)(c) to include “possession with the intent to sell or deliver methamphetamine, sell or deliver
methamphetamine, trafficking methamphetamine, possession of an immediate precursor chemical”
and added a second sentence to the subdivision: “The prior conviction may be from any jurisdiction
within the United States.”

5 In this regard, we are in full accord with the State, which argued consistently and vigorously both at
trial and on appeal that the crime defined in the new subsection does not include any element of intent.

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to Miller that he was subject to serious criminal penalties for an act legal for most

people, most convicted felons, and indeed, for Miller himself only a few weeks

previously, renders the new subsection unconstitutional as applied to him.

      A. Overview of the role of mens rea and notice to protect due process rights

      Under the United States Constitution, it is a “basic principle that a criminal

statute must give fair warning of the conduct that it makes a crime . . . .” Bouie v.

City of Columbia, 378 U.S. 347, 350, 12 L. Ed. 2d 894, 898 (1964) (discussing the due

process rights guaranteed by U.S. Const. amend. XIV). In criminal statutes, due

process rights are most often protected by the inclusion of a mens rea element:

             The contention that an injury can amount to a crime only
             when inflicted by intention is no provincial or transient
             notion. It is as universal and persistent in mature systems
             of law as belief in freedom of the human will and a
             consequent ability and duty of the normal individual to
             choose between good and evil.

Liparota v. United States, 471 U.S. 419, 425, 85 L. Ed. 2d 434, 440 (1985) (citation

and internal quotation marks omitted).

      While mindful of the “core due process concepts of notice, foreseeability, and,

in particular, the right to fair warning as those concepts bear on the constitutionality

of attaching criminal penalties to what previously had been innocent conduct[,]”

Rogers v. Tennessee, 532 U.S. 451, 459, 149 L. Ed. 2d 697, 706 (2001) (citation

omitted), courts have held constitutional certain strict liability crimes or “public

welfare offense[s] which . . . depend on no mental element but consist only of forbidden


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acts or omissions.” Liparota, 471 U.S. at 433, 85 L. Ed. 2d at 444 (citation and

internal quotation marks omitted). For such offenses, which arise from conduct “a

reasonable person should know is subject to stringent public regulation and may

seriously threaten the community’s health or safety[,]” notice that an act may subject

one to criminal penalties will be presumed even in the absence of any explicit mens

rea element. Id. at 433, 85 L. Ed. 2d at 444. For example, the United States Supreme

Court has held that the government need not prove mens rea when prosecuting

defendants for possessing “[illegal] drugs, . . . hand grenades, . . . [or] sulfuric and

other dangerous acids. . . . [because] the probability of regulation is so great that

anyone who is aware that he is in possession of them or dealing with them must be

presumed to be aware of the regulation.” United States v. Int’l Minerals & Chem.

Corp., 402 U.S. 558, 564-65, 29 L. Ed. 2d 178, 183 (1971) (discussing United States v.

Freed, 401 U.S. 601, 609, 28 L. Ed. 2d 356, 362 (1971) (observing that “one would

hardly be surprised to learn that possession of hand grenades is not an innocent act”)

and United States v. Balint, 258 U.S. 250, 254, 66 L. Ed. 604, 606 (1922) (holding no

mens rea is required for convictions for sales of narcotics)). See also United States v.

Dotterweich, 320 U.S. 277, 284-85, 88 L. Ed. 48, 53 (1943) (upholding conviction for

violation of the Food, Drug, and Cosmetic Act for shipping adulterated and

misbranded drugs “even though consciousness of wrongdoing be totally wanting”).




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      The public welfare exception is limited, however, to circumstances where

notice can reasonably be inferred. As the Court in Int’l Minerals & Chem. Corp.

noted, like illegal drugs, grenades, and dangerous chemicals, “[p]encils, dental floss,

[and] paper clips may also be regulated. But they may be the type of products which

might raise substantial due process questions” were their possession criminalized in

the absence of a mens rea element. 402 U.S. at 564-65, 29 L. Ed. 2d at 183. In

Liparota, the Court held that a law which “declare[d] it criminal to use, transfer,

acquire, alter, or possess food stamps in any manner not authorized by statute or

regulations. . . . require[d] a showing that the defendant knew his conduct to be

unauthorized by statute or regulations” because the act prohibited would not

reasonably be assumed illegal. 471 U.S. at 426, 85 L. Ed. 2d. at 440 (citations

omitted). See also United States v. X-Citement Video, 513 U.S. 64, 130 L. Ed. 2d 372

(1994) (reversing convictions under the Protection of Children Against Sexual

Exploitation Act of 1977, which prohibited knowingly transporting, shipping,

receiving, distributing, or reproducing a visual depiction of a minor engaging in

sexually explicit conduct, after holding that the word “knowingly” applied to both the

explicit nature of the depiction and to the age of the performers).

      Similarly, in Lambert, the Court discussed the due process implications of

strict liability offenses. 355 U.S. at 228, 2 L. Ed. 2d at 231 (limiting the principle that

“ignorance of the law will not excuse”) (citation and internal quotation marks



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omitted). In that case, the Court considered the constitutionality of a provision of the

Los Angeles Municipal Code that criminalized the presence in Los Angeles for more

than five days of any person convicted of a felony in California unless the person

registered with the police. Id. at 226-27, 2 L. Ed. 2d at 230. In reversing the

appellant’s conviction and holding the ordinance unconstitutional, the Court

observed that

             circumstances which might move one to inquire as to the
             necessity of registration are completely lacking. . . . We
             believe that actual knowledge of the duty to register or
             proof of the probability of such knowledge and subsequent
             failure to comply are necessary before a conviction under
             the ordinance can stand. . . . A law which punished conduct
             which would not be blameworthy in the average member of
             the community would be too severe for that community to
             bear. Its severity lies in the absence of an opportunity either
             to avoid the consequences of the law or to defend any
             prosecution brought under it. Where a person did not know
             of the duty to register and where there was no proof of the
             probability of such knowledge, he may not be convicted
             consistently with due process. Were it otherwise, the evil
             would be as great as it is when the law is written in print
             too fine to read or in a language foreign to the community.

Id. at 229-30, 2 L. Ed. 2d at 232 (citation and internal quotation marks omitted;

emphasis added).

      This Court has observed that

             Lambert has been very narrowly construed and that few
             cases since have been able to successfully argue its
             application to new facts before the Court. However, we
             note that each time a court has refused to apply Lambert,



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             the defendant at hand either knew or should have known of
             the possible violation.

State v. Young, 140 N.C. App. 1, 12, 535 S.E.2d 380, 386 (2000) (emphasis added)

(discussing cases involving: distribution of child pornography, United States v. Lamb,

945 F. Supp. 441 (N.D.N.Y. 1996); possession of a firearm by a person subjected to a

judicial anti-stalking order or who had committed a crime of domestic violence,

United States v. Meade, 175 F.3d 215 (1st Cir. 1999); and possession of a firearm by

a person against whom a domestic violence protective order has been obtained,

United States v. Bostic, 168 F.3d 718 (4th Cir. 1999), cert. denied, 527 U.S. 1029, 144

L. Ed. 2d 785 (1999)), disc. review improvidently allowed, 354 N.C. 213, 552 S.E.2d

142 (2001). This observation is consistent with the United States Supreme Court

case law discussed supra, to wit, that the requirement of knowledge that an act is

prohibited “is particularly appropriate where . . . to interpret the statute otherwise

would be to criminalize a broad range of apparently innocent conduct.” Liparota, 471

U.S. at 426, 85 L. Ed. 2d. at 440 (holding that a law which “declare[d] it criminal to

use, transfer, acquire, alter, or possess food stamps in any manner not authorized by

statute or regulations. . . . requires a showing that the defendant knew his conduct to

be unauthorized by statute or regulations”) (citations omitted; emphasis added).

      B. Appropriateness of requiring knowledge or notice that possessing an over-
      the-counter medication is prohibited by law for a specific group of felons




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      We agree with the State that methamphetamine manufacture and use is a

significant law enforcement and public health problem which demands serious

criminal penalties. However, in light of the precedent established in Lambert and

Liparota, we conclude that the new subsection is unconstitutional as applied to

Miller. The new subsection made it a felony for Miller to possess a pseudoephedrine

product because he had a previous conviction for possession of methamphetamine.

Possession of pseudoephedrine products is an innocuous and entirely legal act for the

majority of people in our State, including most convicted felons. Thus, unlike selling

illegal drugs, possessing hand grenades or dangerous acids, see Int’l Minerals &

Chem. Corp., 402 U.S. at 564-65, 29 L. Ed. 2d at 183, or shipping adulterated

prescription drugs, see Dotterweich, 320 U.S. at 284, possessing allergy medications

containing pseudoephedrine is an act that citizens, including convicted felons, would

reasonably assume to be legal. See Liparota, 471 U.S. at 426, 85 L. Ed. 2d. at 440.

      Further, although we recognize that the sale and purchase of pseudoephedrine

products has been regulated for many years under the CSA, see, e.g., N.C. Gen. Stat.

§§ 90-113.52A(d), 90-113.53, and that the United States Supreme Court has held that

certain offenses which arise from conduct “a reasonable person should know is subject

to stringent public regulation and may seriously threaten the community’s health or

safety” can be criminalized even in the absence of notice or an explicit mens rea

element, see Liparota, 471 U.S. at 433, 85 L. Ed. 2d at 444, we conclude that the



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existence of those very regulations only serves to highlight the violation of Miller’s

due process rights in the absence of notice to him of the new subsection’s provisions.

Under those provisions, such as the CSA’s quantity limits and record-keeping

requirements, before the effective date of the new subsection, anyone wishing to

purchase a pseudoephedrine product from a retail store had notice of exactly what

was permissible and required without violating the laws of our State, namely: (1)

requesting the products from behind the pharmacy counter, (2) purchasing only

approved quantities of the products, (3) showing the required identification, and (4)

having the necessary personal information submitted to the NPLEx system. If, and

only if, the purchaser complied with the CSA requirements would he be allowed to

purchase a pseudoephedrine product. Before 1 December 2013, it was entirely legal

for Miller, like any member of the general public, to purchase pseudoephedrine

products in this manner. Before 1 December 2013, it was entirely legal for Miller,

despite having been convicted of a methamphetamine offense, to purchase up to “3.6

grams of . . . pseudoephedrine products per calendar day” and up to “9 grams of

pseudoephedrine products within any 30-day period.” See N.C. Gen. Stat. § 90-

113.53(a)-(b).

      Some five weeks later on 5 January 2014, Miller followed those same

procedures in order to purchase a pseudoephedrine product.             The Walmart

pharmacist who sold him the pseudoephedrine product obtained the product from



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behind the counter, ensured Miller’s purchase did not exceed the quantity limits of

the CSA, checked Miller’s identification, and submitted the pertinent data to the

NPLEx system. No stop sale alert was issued. As a result, the pharmacist believed

the sale and purchase were legal, as did Miller. Indeed, for most people, including

the vast majority of convicted felons, this transaction would have been legal. Simply

put, there were no “circumstances which might move one to inquire as to” a

significant change in the CSA’s requirements nor any notice to Miller that the new

subsection had transformed an innocent act previously legal for him into a felony.

See Lambert, 355 U.S. at 229, 2 L. Ed. 2d at 232. As such, the application of the new

subsection to Miller violated his due process rights under the Fourteenth

Amendment.

          Our holding is consistent with the 2012 decision of the Court of Criminal

Appeals of Oklahoma in Wolf v. State of Oklahoma, 292 P.3d 512 (2012), cert. denied,

__ U.S. __, 186 L. Ed. 2d 877 (2013),6 wherein that court held that a state law very

similar to the new subsection before us violated the appellant’s due process rights.

          In 2010, the State of Oklahoma criminalized the possession of pseudoephedrine

products pursuant to the Methamphetamine Registry Act of 2010 which

                  establishe[d] a registry of persons convicted of various
                  methamphetamine crimes, and applie[d] to all persons
                  convicted after November 1, 2010, and all persons on
                  probation for any specified offense as of that date. Upon


6   Although not binding on this Court, we find the reasoning of our sister court highly persuasive.

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              conviction, the district court clerk [wa]s required to send
              the name of the offender to the Oklahoma State Bureau of
              Narcotics and Dangerous Drugs (OSBNDD), which
              maintains the registry. A person subject to the registry is
              prohibited from buying pseudoephedrine.               Every
              pharmacist or other person who sells, manufactures or
              distributes pseudoephedrine must check the registry at
              each purchase, and deny the sale to any person on the list.

Wolf, 292 P.3d at 514. However, “the statute d[id] not provide that [district] court

clerks notify any convicted person that [her] name ha[d] been submitted to the

OSBNDD, or that [she was] subject to the registry” and the attendant criminal

penalties for possessing pseudoephedrine. Id. at 515. The appellant in Wolf, a former

methamphetamine offender who had been convicted of possessing pseudoephedrine

while unknowingly subject to the registry, argued that, “[i]n order to be

constitutional, the offense of unlawfully purchasing pseudo[e]phedrine while subject

to the methamphetamine registry act must be construed as having a mens rea

component . . . .” Id. at 514 (italics added). The state of Oklahoma, in contrast,

asserted that the new law was constitutional as “a strict liability crime . . . [with] no

legal requirement that a person know she has violated the statute or is subject to

criminal penalties . . . .” Id.

       The Oklahoma court agreed that strict liability offenses could be

constitutional, but explained that,

              when otherwise lawful conduct is criminalized, the
              criminal statute must provide sufficient notice for a person
              to know she is committing a crime. . . . There is a distinction


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                                   Opinion of the Court



              between knowledge that one is subject to criminal
              penalties, and intent to commit a crime. A strict liability
              crime does not require any intent to commit a crime.
              However, due process requires notice that specific conduct
              is considered a criminal offense.

Id. (emphasis added). The Oklahoma court then held the statute unconstitutional,

reasoning that,

              [t]aken together, Lambert and Liparota suggest that, while
              a legislature may criminalize conduct in itself, with no
              intent requirement, the legislature must make some
              provision to inform a person that the conduct, as applied to
              her, is criminal. This is particularly important where the
              conduct in question is otherwise legal. This is precisely the
              circumstance here: some convicted felons are prohibited
              from purchasing pseudoephedrine, while others, along
              with the general population, are not.

Id. at 516.

      We fully agree.     The new subsection is unconstitutional as applied to a

defendant in the absence of notice to the subset of convicted felons whose otherwise

lawful conduct is criminalized thereby or proof beyond a reasonable doubt by the

State that a particular defendant was aware that his possession of a pseudoephedrine

product was prohibited by law.

C. Distinctions and analogies to provisions in the Felony Firearms Act

      Before this Court, as in the trial court, the State analogizes the new subsection

to our State’s laws criminalizing possession of a firearm by a felon, observing that the

various incarnations of those statutes have been upheld as constitutional despite the



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                                  Opinion of the Court



absence of any intent element or notice provision. Specifically, the State cites State

v. Tanner, 39 N.C. App. 668, 251 S.E.2d 705, disc. review denied and appeal

dismissed, 297 N.C. 303, 254 S.E.2d 924 (1979); State v. Coltrane, 188 N.C. App. 498,

656 S.E.2d 322 (2008), disc. review denied and appeal dismissed, 362 N.C. 476, 666

S.E.2d 760 (2008); and State v. Whitaker, 364 N.C. 404, 700 S.E.2d 215 (2010). Our

review, however, reveals that these cases are inapposite to Miller’s arguments

regarding notice and intent.

      Our State’s statutes regulating the right of convicted felons to possess firearms

have undergone numerous changes since their original enactment.

             In 1971, the General Assembly enacted the Felony
             Firearms Act, N.C. Gen. Stat. § 14-415.1, which made
             unlawful the possession of a firearm by any person
             previously convicted of a crime punishable by
             imprisonment of more than two years. [Section] 14-415.2
             set forth an exemption for felons whose civil rights had
             been restored.

             In 1975, the General Assembly repealed [section] 14-415.2
             and amended [section] 14-415.1 to ban the possession of
             firearms by persons convicted of certain crimes for five
             years after the date of such conviction, or unconditional
             discharge from a correctional institution, or termination of
             a suspended sentence, probation, or parole upon such
             convictions, whichever is later. . . .

State v. Johnson, 169 N.C. App. 301, 303, 610 S.E.2d 739, 741 (citations and internal

quotation marks omitted), disc. review denied and appeal dismissed, 359 N.C. 855,




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619 S.E.2d 855 (2005). In Tanner, we rejected the defendant’s arguments that the

amended statute was unconstitutionally vague and that the statute’s

             classifications [were] unconstitutional [because]: (1) it
             denie[ed] the right to possess firearms to those convicted of
             certain felonies but not all felonies; (2) it allow[ed] the right
             of possession to some felons in the prohibited class due to
             the length of their sentences, probation and parole; and (3)
             it allow[ed] a convicted felon to possess a firearm in his
             home or place of business but [did] not provide a way for
             him to get the firearm there.

39 N.C. App. at 670, 251 S.E.2d at 706. The defendant did not make, and thus this

Court did not address, any arguments regarding intent or notice.

      “In 1995, the General Assembly amended N.C. Gen. Stat. § 14-415.1 to prohibit

possession of certain firearms by all persons convicted of any felony.” Johnson, 169

N.C. App. at 303, 610 S.E.2d at 741 (citation omitted; emphasis in original). Then,

“in 2004 the General Assembly amended [section] 14-415.1 to extend the prohibition

on possession to all firearms by any person convicted of any felony, even within the

convicted felon’s own home and place of business.” Britt v. State, 363 N.C. 546, 548,

681 S.E.2d 320, 321 (2009) (citation omitted; emphasis in original). This Court

rejected a double jeopardy argument in Coltrane, 188 N.C. App. at 504-05, 656 S.E.2d

at 327, and, in Whitaker, our Supreme Court held that the statute as amended in

2004 was “not an impermissible ex post facto law or bill of attainder.” 364 N.C. at

405, 700 S.E.2d at 216 (italics added). Again, in neither case did the appellant

present or the appellate court consider an argument regarding the due process


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                                          Opinion of the Court



implications of the lack of an intent element or notice provision in the statute in

question.

        The statute was further amended in 2006, 2010, and 2011,7 and the current

version provides:

                (a)    It shall be unlawful for any person who has been
                convicted of a felony to purchase, own, possess, or have in
                his custody, care, or control any firearm or any weapon of
                mass death and destruction as defined in [section] 14-
                288.8(c). For the purposes of this section, a firearm is (i)
                any weapon, including a starter gun, which will or is
                designed to or may readily be converted to expel a projectile
                by the action of an explosive, or its frame or receiver, or (ii)
                any firearm muffler or firearm silencer. This section does
                not apply to an antique firearm, as defined in [section] 14-
                409.11.

                Every person violating the provisions of this section shall
                be punished as a Class G felon.

                (b)    Prior convictions which cause disentitlement under
                this section shall only include:

                  (1) Felony convictions in North Carolina that occur
                before, on, or after December 1, 1995; and

                 (2) Repealed by Session Laws 1995, c. 487, s. 3, effective
                December 1, 1995.



7 In 2006, subsection (a) was amended to exempt antique firearms from the law. See 2006 N.C. Sess.
Laws 259, s. 7(b). Session Laws 2010-108, s. 3, as amended by Session Laws 2011-2, s.1 added
subsections (d) and (e). Session Laws 2011-268, s. 13, inter alia, rewrote subsection (d), which formerly
read: “This section does not apply to a person whose firearms rights have been restored under [section]
14-415.4, unless the person is convicted of a subsequent felony after the petition to restore the person’s
firearms rights is granted.” Other amendments made in 2010 and 2011 relate to communication with
federal law enforcement agencies and to the applicability of amended provisions to offenses committed
on or after specific dates.

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               (3) Violations of criminal laws of other states or of the
             United States that occur before, on, or after December 1,
             1995, and that are substantially similar to the crimes
             covered in subdivision (1) which are punishable where
             committed by imprisonment for a term exceeding one year.

             . . . . [Provisions regarding use of records of prior
             convictions to prove a violation of this section]

             (c)   . . . . [Provisions regarding requirements for the
             indictment charging a violation of this section]

             (d)    This section does not apply to a person who,
             pursuant to the law of the jurisdiction in which the
             conviction occurred, has been pardoned or has had his or
             her firearms rights restored if such restoration of rights
             could also be granted under North Carolina law.

             (e)    This section does not apply and there is no
             disentitlement under this section if the felony conviction is
             a violation under the laws of North Carolina, another state,
             or the United States that pertains to antitrust violations,
             unfair trade practices, or restraints of trade.

N.C. Gen. Stat. § 14-415.1 (2015). As with previous versions of the law, no defendant

has brought forward a constitutional challenge to the present version of section 14-

415.1 on grounds of lack of notice under the precedent of Lambert and Liparota. We

find it relevant, however, that in holding the 2004 amendment to section 14-415.1

was unconstitutional as applied to the defendant in Britt, our Supreme Court

discussed five factors, including, inter alia, the defendant’s “assiduous and proactive

compliance with the 2004 amendment[,]” emphasizing the defendant’s knowledge

that the statute had changed so as to criminalize his previoulys lawful conduct. 363



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                                    Opinion of the Court



N.C. at 550, 681 S.E.2d at 323 (analyzing the statute under Article I, Section 30 of

the North Carolina Constitution: “A well regulated militia being necessary to the

security of a free State, the right of the people to keep and bear arms shall not be

infringed.”).

       For the reasons discussed supra, we conclude that the distinctions between the

new subsection of the CSA and the provisions of the Felony Firearms Act are

significant. Moreover, we find them dispositive in defeating any reliance on using

our case law regarding the latter in determining the constitutionality of the former.

As previously noted, the act of buying a pseudoephedrine product is innocent and

legal for the general public, and, unlike possession of a firearm, legal for most

convicted felons. Miller’s purchase of a pseudoephedrine product after complying

with the other regulations of the CSA had been legal five weeks before the act which

resulted in his felony conviction, and, having complied as usual with those

regulations, no stop sale alert was issued by the NPLEx system, such that both Miller

and the pharmacist selling him the product believed his purchase was legal.

                                       Conclusion

       While our General Assembly is free to “criminalize conduct in itself, with no

intent requirement, the legislature must make some provision to inform a person that

the conduct, as applied to h[im], is criminal[,] . . . particularly . . . where the conduct

in question is otherwise legal.” See Wolf, 292 P.3d at 516. We leave it to the other



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                                  Opinion of the Court



branches of government to determine the best manner in which to do so, whether by

individually contacting the special subset of felons to whom the new subsection

applies, requiring that signs regarding the provisions of the new subsection be posted

at pharmacy counters, adding an informational statement to the NPLEx system, or

some other method.       However, as applied to Miller, the new subsection is

unconstitutional because it failed to afford him sufficient notice and fair warning as

required by the Due Process Clause of the Fourteenth Amendment to the United

States Constitution, that his previously legal conduct had been criminalized.

Accordingly, the trial court’s judgment entered upon Miller’s conviction is

      VACATED.

      Chief Judge McGEE and Judge HUNTER, JR. concur.




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