               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA17-716

                                     Filed: 1 May 2018

Wayne County, No. 15 CRS 050319

STATE OF NORTH CAROLINA

              v.

RAMELLE MILEK LOFTON


        Appeal by Defendant from judgment entered 20 July 2016 by Judge Martin B.

McGee in Superior Court, Wayne County. Heard in the Court of Appeals 22 January

2018.


        Attorney General Joshua H. Stein, by Assistant Attorney General Allison A.
        Angell, for the State.

        William D. Spence for Defendant.


        McGEE, Chief Judge.


        Ramelle Milek Lofton (“Defendant”) was indicted 2 May 2016 on charges of

manufacturing a controlled substance pursuant to N.C. Gen. Stat. § 90-95(a)(1),

possession of marijuana, and possession of drug paraphernalia.1 These charges arose

out of events that occurred on 20 January 2015, when officers from the Goldsboro

Police Department executed a search warrant for Defendant’s residence. Defendant




        1
        In the indictment, the State erroneously cites N.C.G.S. § 90-95(a)(3) in support of the
manufacturing charge.
                                   STATE V. LOFTON
                                   Opinion of the Court



was tried at the 18 July 2016 criminal session of Wayne County Superior Court. The

jury was instructed on possession of marijuana and drug paraphernalia, as well as

manufacturing a controlled substance and the lesser included offense of attempting

to manufacture a controlled substance. See State v. Clark, 137 N.C. App. 90, 96–97,

527 S.E.2d 319, 323 (2000) (attempt is a lesser included offense of the underlying

charge). Defendant was found guilty on 20 July 2016 on the charges of attempting to

manufacture a controlled substance and possession of marijuana. He was acquitted

on the charge of possession of drug paraphernalia. Defendant appeals.

      In Defendant’s sole argument, he contends that “[t]he trial court erred in

denying [his] motion to dismiss the charge of attempting to manufacture a controlled

substance[.]” We agree, though on jurisdictional grounds not raised by Defendant.

      We hold that the indictment charging Defendant with manufacturing

marijuana was fatally defective.

            “North Carolina law has long provided that ‘[t]here can be
            no trial, conviction, or punishment for a crime without a
            formal and sufficient accusation. In the absence of an
            accusation the court acquires no jurisdiction whatever, and
            if it assumes jurisdiction a trial and conviction are a
            nullity.’” “[W]here an indictment is alleged to be invalid on
            its face, thereby depriving the trial court of [subject matter]
            jurisdiction, a challenge to that indictment may be made at
            any time, even if it was not contested in the trial court.”
            This Court “review[s] the sufficiency of an indictment de
            novo.”




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                                         STATE V. LOFTON
                                         Opinion of the Court



State v. Harris, 219 N.C. App. 590, 593, 724 S.E.2d 633, 636 (2012) (citations omitted)

(alterations in the original). Defendant was indicted on the manufacturing charge by

the following relevant language:

               [O]n or about the 20th day of January, 2015 in Wayne
               County, [Defendant] unlawfully, willfully and feloniously
               did manufacture a controlled substance in violation of the
               North Carolina Controlled Substances Act, by producing,
               preparing, propagating and processing a controlled
               substance. The controlled substance in question consisted
               of marijuana[.]

(Emphasis added).2

       N.C. Gen. Stat. § 90-95(a)(1) (2017) is the statute pertaining to the illegal

manufacture of controlled substances:

               N.C.G.S. § 90-95(a)(1) makes it unlawful to “manufacture,
               sell or deliver, or possess with intent to manufacture, sell
               or deliver, a controlled substance.” The intent of the
               legislature in enacting N.C.G.S. § 90-95(a)(1) was twofold:
               “(1) to prevent the manufacture of controlled substances,
               and (2) to prevent the transfer of controlled substances
               from one person to another.”

State v. Moore, 327 N.C. 378, 381, 395 S.E.2d 124, 126 (1990) (citation omitted). Our

Supreme Court determined “the language of N.C.G.S. § 90-95(a)(1) creates three

offenses: (1) manufacture of a controlled substance, (2) transfer of a controlled




       2 We note that the use of the conjunction “and,” instead of “or,” placed an additional burden on
the State. The indictment as written required the State to prove that Defendant produced marijuana,
prepared marijuana, propagated marijuana, and processed marijuana in order to prove that
Defendant manufactured marijuana. As discussed in detail below, the relevant statute only requires
the State to prove one basis – e.g. preparing marijuana – in order to sustain a charge of manufacturing
marijuana. The State’s use of the word “and” does not impact our jurisdictional analysis.

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                                  STATE V. LOFTON
                                  Opinion of the Court



substance by sale or delivery, and (3) possession with intent to manufacture, sell or

deliver a controlled substance.” Id. (emphasis in original). Therefore, a defendant

may be indicted, separately, for manufacturing a controlled substance, transferring

a controlled substance, or possessing with intent to manufacture or transfer a

controlled substance. Id.

      In Moore, the defendant was convicted of “selling” hallucinogenic mushrooms

and “delivering” hallucinogenic mushrooms pursuant to a single transfer. Id. at 379-

80, 395 S.E.2d at 125-26. Each of these convictions was treated as a separate offense.

Id. Our Supreme Court held that, pursuant to N.C.G.S. § 90-95(a)(1), “selling” and

“delivering” constitute two ways in which the crime of transferring a controlled

substance may be proven, but that “selling” and “delivering” in this context did not

constitute separate offenses for which a defendant may be convicted based upon a

single transaction. Moore, 327 N.C. at 381, 395 S.E.2d at 126. Therefore, the Court

in Moore held: “The jury in this case was improperly allowed under each indictment

to convict the defendant of two offenses – sale and delivery – arising from a single

transfer.” Id. at 383, 395 S.E.2d at 127. Because the defendant in Moore was

convicted of both “selling” and “delivering” the same mushrooms in a single

transaction, one of the defendant’s convictions based upon transferring a controlled

substance was vacated. Id.

      Our Supreme Court was careful to explain that its reasoning did not implicate

issues of unanimity:


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                                   STATE V. LOFTON
                                  Opinion of the Court



             Our conclusion regarding the proper interpretation of
             N.C.G.S. § 90-95(a)(1) does not create a risk of a defendant
             being convicted by a nonunanimous verdict.                The
             legislature intended that there be one conviction and
             punishment under the statute for defendants who transfer,
             i.e., “sell or deliver,” a controlled substance. The transfer
             by sale or delivery of a controlled substance is one statutory
             offense, the gravamen of the offense being the transfer of
             the drug. So long as each juror finds that the defendant
             transferred the substance, whether by sale, by delivery, or
             by both, the defendant has committed the statutory
             offense, and no unanimity concerns are implicated.

Id. (citations omitted).

      In the present case, Defendant was indicted for manufacturing marijuana in

violation of N.C.G.S. § 90-95(a)(1). As with a charge of transferring pursuant to

N.C.G.S. § 90-95(a)(1), a charge of manufacturing may be proven in multiple ways.

N.C.G.S. § 90-95(a)(1) states:

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

                 (1) To manufacture, sell or deliver, or possess with
                 intent to manufacture, sell or deliver, a controlled
                 substance[.]

Relevant to this appeal, “manufacture” is defined by statute as follows:

             “Manufacture” means the production, preparation,
             propagation, compounding, . . . or processing of a controlled
             substance by any means, whether directly or indirectly,
             artificially or naturally[.] [However, “manufacture”] does
             not include the preparation or compounding of a controlled
             substance by an individual for his own use[.]




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                                         STATE V. LOFTON
                                         Opinion of the Court



N.C. Gen. Stat. § 90-87(15) (2017) (emphasis added). Therefore, the State could have

indicted Defendant on a single count of manufacturing marijuana, based on the

multiple bases of production, preparation, propagation, or processing which,

pursuant to Moore, could have been proven by evidence that Defendant either

produced, prepared, propagated, or processed the marijuana. Moore, 327 N.C. at 383,

395 S.E.2d at 127. The fact that the jury could thereby convict Defendant based upon

different methods of “manufacturing” – i.e. some jurors could find that Defendant

produced marijuana, some could find that he prepared marijuana, some could find

that he propagated marijuana, and some could find that he processed marijuana –

does not raise any unanimity concerns.3

       However, Defendant’s indictment for manufacturing marijuana is fatally

flawed. Defendant was indicted pursuant to the “manufacturing” prong of N.C.G.S.

§ 90-95(a)(1) based upon the following relevant language: “[O]n or about the 20th day

of January, 2015 in Wayne County, [Defendant] unlawfully, willfully and feloniously

did manufacture a controlled substance in violation of [N.C.G.S. § 90-95(a)(1)], by

producing, preparing, propagating and processing [marijuana].” Our Supreme Court

has held that proof of intent to distribute is required by portions of the

“manufacturing” prong of N.C.G.S. § 90-95(a)(1), stating that “the offense of




       3As noted above, because the indictment in this case used the language “producing, preparing,
propagating and processing,” instead of “producing, preparing, propagating, or processing,” the
indictment as written required the State to prove all four of these bases in order to convict Defendant
of manufacturing marijuana.

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                                  STATE V. LOFTON
                                  Opinion of the Court



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

the activity constituting manufacture is preparation or compounding.”        State v.

Brown, 310 N.C. 563, 568, 313 S.E.2d 585, 588 (1984) (emphasis added); see also Id.,

(emphasis added) (“the plain language of [N.C.G.S. § 90-87(15)] makes it clear that

these activities [“packaging,” “repackaging,” “labeling,” and “relabeling”] are not

included within the limited exception of those manufacturing activities (preparation,

compounding) for which an intent to distribute is required”); State v. Muncy, 79 N.C.

App. 356, 362, 339 S.E.2d 466, 470 (1986) (citation omitted) (emphasis added) (“intent

to distribute is not a necessary element of the offense of manufacturing a controlled

substance unless the manufacturing activity is preparation or compounding”). It is

clear that intent to distribute is a required element if the manufacturing charge is

based upon either preparation or compounding because preparation or compounding

for personal use is specifically exempted under N.C.G.S. § 90-95(a)(1) and, therefore,

the State must prove that a defendant’s intent was not personal use, but distribution.

Id.

      In the present case, Defendant moved to dismiss the manufacturing charge

based in part on the following argument:

             Judge, we’d move to dismiss the allegation of preparation
             for a fatal defect in the indictment, which takes the
             jurisdiction from this [c]ourt.      Judge, preparation,
             pursuant to General Statute[§ 90-87(15)], requires that the
             State charge preparation with the intent to distribute,
             intent to distribute being an essential element of that
             offense.


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                                  STATE V. LOFTON
                                  Opinion of the Court




The trial court denied Defendant’s motion to dismiss the manufacturing charge in its

entirety, and instructed the jury on attempt to manufacture marijuana on all four

indicted bases: producing, propagating, processing, and preparing.

      Because Defendant’s indictment for the charge of manufacturing a controlled

substance pursuant to N.C.G.S. § 90-95(a)(1) included preparation as a basis, it failed

to allege a required element – intent to distribute.        A valid indictment is a

requirement for jurisdiction, and the fact that Defendant does not argue this issue on

appeal does not relieve this Court of its duty to insure it has jurisdiction over

Defendant’s appeal. Harris, 219 N.C. App. at 593, 724 S.E.2d at 636; State v. Helms,

247 N.C. 740, 745, 102 S.E.2d 241, 245 (1958).

      Because the State chose to allege four separate bases pursuant to which it

could attempt to prove Defendant’s guilt of the single count of manufacturing a

controlled substance, it was necessary that all four of those bases were alleged with

sufficiency to confer jurisdiction on the trial court for the manufacturing charge.

Because one of those bases — “preparation” — required the unalleged element of

“intent to distribute,” and the jury was instructed on all four bases alleged in the

indictment, including “preparation,” the jury was allowed to convict Defendant on a

theory of manufacturing a controlled substance that was not supported by a valid

indictment. The omission of the element of intent from the indictment charging

Defendant of manufacturing a controlled substance constituted a fatal defect. This



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                                        STATE V. LOFTON
                                       Opinion of the Court



Court cannot now, on appeal, isolate the defect in the indictment in a manner that

does not taint the entire indictment.4 The fact that the indictment as written would

have supported the charge of manufacturing a controlled substance had the State

only included the underlying theories of “production,” “propagation,” and “processing”

as bases for proving “manufacturing” does not save the indictment. Because the

underlying basis of “preparation” was also alleged in the indictment and presented to

the jury, “intent to distribute” became a necessary element of the manufacturing

charge, and its absence constituted a fatal defect.

       “An arrest of judgment is proper when the indictment wholly fails to charge

some offense cognizable at law or fails to state some essential and necessary

element of the offense of which the defendant is found guilty.” Harris, 219 N.C.

App. at 593, 724 S.E.2d at 636 (quotation marks and citations omitted). “The legal

effect of arresting the judgment is to vacate the verdict and sentence of imprisonment

below, and the State, if it is so advised, may proceed against the defendant upon a

sufficient bill of indictment.” Id. (quotation marks and citations omitted). Because

the indictment for the charge of manufacturing a controlled substance failed to

include a necessary element of that crime as alleged by the State, the indictment

failed to confer subject matter jurisdiction upon the trial court for that charge, and




       4  Because this issue is not before us, we do not consider whether the trial court could have
cured the defect by allowing amendment of the indictment or only instructing the jury on the
production, propagation, and processing theories of manufacturing a controlled substance alleged by
the State.

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                                   STATE V. LOFTON
                                  Opinion of the Court



we vacate Defendant’s conviction for that charge. Id. at 598, 724 S.E.2d at 639.

Defendant has not challenged his conviction for possession of marijuana, and that

conviction is unaffected by this opinion.

      NO ERROR IN PART, VACATED IN PART.

      Judges DAVIS and TYSON concur.




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