               IN THE SUPREME COURT OF NORTH CAROLINA

                                    No. 278PA17

                                Filed 26 October 2018

 STATE OF NORTH CAROLINA

              v.
 JOHN ANDREW MADDUX



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

unpublished decision of the Court of Appeals, ___ N.C. App. ___, 803 S.E.2d 463

(2017), finding plain error in judgments entered on 20 April 2016 by Judge C. Winston

Gilchrist in Superior Court, Johnston County, and granting defendant a new trial.

Heard in the Supreme Court on 29 August 2018.


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

      Anne Bleyman for defendant-appellee.


      HUDSON, Justice.



      This case comes to us by way of the State’s petition for discretionary review of

the opinion of the Court of Appeals. Specifically, the State has asked us to determine

whether the Court of Appeals erred in awarding defendant a new trial because of

plain error in a jury instruction on aiding and abetting. We agree that the trial court

erred in giving the aiding and abetting instruction; however, because the Court of
                                       STATE V. MADDUX

                                        Opinion of the Court



Appeals incorrectly concluded that the trial court’s error amounted to plain error, we

reverse the decision of the Court of Appeals.

   I.         Factual and Procedural Background


        This case began with two searches of defendant’s residence by the Johnston

County Sheriff’s Office Narcotics Division on 19 August 2015. On that date, two

detectives responded to a complaint that drug activity was occurring at defendant’s

home. When they arrived at the house, defendant answered the door, identified

himself as the owner of the property, and consented to a search of his residence.


        During the first search, the two detectives walked through the interior of the

home. Defendant first took the detectives to his master bedroom and adjoining

master bathroom, where they found no evidence of drug activity. Then defendant

took the detectives to the bedroom of one of his sons, where they found on the floor a

clear baggie containing four white pills and a homemade bong. Upon finding these

things, detectives asked defendant whether any methamphetamine manufacturing

items or paraphernalia were in the home. Defendant responded in the negative but

added that his stepson Lyn Sawyer (Sawyer), who occasionally spent the night on

defendant’s couch, was on probation for manufacturing methamphetamine in South

Carolina.1




        1   Detectives would later find mail addressed to Sawyer in defendant’s residence.

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       Next, the detectives’ search took them to the outside of defendant’s residence,

where they found a one-pot meth lab2 inside a burn barrel.3 The one-pot meth lab

and burn barrel were located approximately thirty yards behind defendant’s home,

and they were accessible to neighboring properties. Upon finding the burn barrel,

the two detectives turned the investigation over to another detective, who carried out

his own search of defendant’s residence and conducted a more general investigation.


       The other detective’s search of defendant’s residence revealed the following

items that are commonly used in methamphetamine production: (1) in defendant’s

master bedroom, an empty package of lithium batteries, a metal strainer, a glass

measuring cup, the top portion of a plastic bottle containing a white residue, 4 a

Walgreens receipt for pseudoephedrine,5 and a plastic tube located inside a plastic

tote bag sitting by defendant’s bed; (2) in defendant’s master bathroom, an open box




       2 The one-pot meth lab is one of a number of methods that methamphetamine
producers use to cook meth. The process involves placing the ingredients, including
ammonium nitrate, into a plastic bottle and shaking the bottle to produce an ammonia gas
reaction. As the ammonia gas is produced, the person cooking the meth alternatively shakes
the bottle and partially opens the cap to release the pressure building inside the bottle. The
result of this process is that the pseudoephedrine inside the bottle will convert into
methamphetamine. After the pseudoephedrine converts into methamphetamine, a separate
process is used to change the methamphetamine into a powdery substance. That powdery
substance is then filtered through strainers and coffee filters.
       3 A burn barrel houses a burn pile, which is a commonly used method by

methamphetamine producers to destroy the evidence of methamphetamine production.
       4 This residue was not chemically analyzed.

       5 Pseudoephedrine is an immediate precursor chemical to the manufacture of

methamphetamine under N.C.G.S. § 90-95(d2)(37)(2017).

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of instant cold packs,6 a clear plastic baggie containing a white powdered substance

that appeared to be methamphetamine,7 and a trash bag containing balled-up, burnt

strips of aluminum foil that were consistent with meth boats used to smoke

methamphetamine; and (3) in defendant’s kitchen, a can of acetone8 that was either

nearly or completely empty, a water bladder from an instant cold pack, 9 and more

meth boats inside a diaper box.


      When the other detective searched the burn barrel in defendant’s back yard,

he found two two-liter plastic bottles that the North Carolina State Crime Laboratory

would later determine contained methamphetamine and pseudoephedrine, along

with coffee filters, a latex glove, trash bags, paper towels, and battery casings that

apparently had been pried open.10


      After searching the burn barrel, the detective continued to walk around the

exterior premises of defendant’s residence, during which he was approached by

defendant’s neighbor. After briefly speaking with the neighbor, the detective decided




      6   The specific brand of instant cold packs found in defendant’s bathroom contains
ammonium nitrate, which is an essential element in manufacturing methamphetamine.
        7 This powdered substance was not chemically analyzed.

        8   Acetone is an immediate precursor chemical to the manufacture of
methamphetamine under N.C.G.S. § 90-95(d2)(2)(2017).
        9 In the process of cooking methamphetamine, producers separate the water bladder

from the ammonium nitrate contained in the cold pack and discard the water bladder.
        10 Methamphetamine producers pry open casings for AA lithium batteries to access

the lithium strips that are used in methamphetamine production. It is unclear whether the
battery casing recovered from the burn barrel belonged to a AA lithium battery.

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                                   Opinion of the Court



to search the neighbor’s residence also. Before searching the house, the detective

learned that the neighbor shared her house with her daughter, Alex Tucker (Tucker),

and Sawyer, defendant’s stepson. After receiving consent from Tucker to search her

room, the detective found a pink bag containing materials that he identified as

methamphetamine components.


      Also, while the detective was at the neighbor’s residence, a child informed him

that Sawyer had run out of the back door when the detective approached the

residence.   Although Sawyer would not return to the neighbor’s residence, the

detective spoke with him over the telephone. Sawyer said he was scared to return

because he was on probation, and he was afraid the detective would arrest him for

manufacturing meth.


      Next, the detective spoke with defendant, who stated that: (1) “Sawyer was a

liar”; (2) Sawyer possibly cooked meth with Tucker next door; (3) Sawyer talked about

cooking meth all the time; and (4) defendant had once tried meth but did not like it.


      On     5   October   2015,   defendant      was     indicted   for   manufacturing

methamphetamine, possession of a methamphetamine precursor, and felony

conspiracy to manufacture methamphetamine. On 2 November 2015, defendant was

further indicted for two counts of trafficking in methamphetamine by manufacture

and one count of conspiring to traffic in methamphetamine. Later, on 7 March 2016,

the second indictment was replaced by a superseding indictment charging trafficking

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in methamphetamine by manufacture, trafficking in methamphetamine by

possession, and conspiracy to traffic in methamphetamine.


      Defendant’s trial began on 18 April 2016, and the State presented the above

evidence through the testimonies of (1) the detectives who conducted the 19 August

2015 searches and interviews, (2) an agent with the State Bureau of Investigation

who entered defendant’s home and processed the items related to the one-pot meth

lab and those found in the burn barrel located on defendant’s property, and (3) a drug

chemist at the North Carolina State Crime Laboratory who analyzed the contents of

plastic bottles contained in the one-pot meth lab and burn-barrel.


      At the close of the State’s evidence, defendant moved to dismiss all charges.

The State voluntarily dismissed the two conspiracy charges, and the trial court

granted defendant’s motion to dismiss as to the charge of possession of an immediate

precursor; however, the court denied the motion as to the rest of the charges.

Defendant offered no evidence at trial.


      At the close of all evidence, the trial court instructed the jury that defendant

could be found guilty of manufacturing methamphetamine, trafficking in

methamphetamine by manufacture, and trafficking in methamphetamine by

possession either through a theory of individual guilt or of aiding and abetting.

Defendant did not object to these instructions.




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                                  Opinion of the Court



      The jury convicted defendant of the following charges by means of a general

verdict   sheet:    (1)   manufacturing     methamphetamine,     (2)   trafficking   in

methamphetamine by manufacture, and (3) trafficking in methamphetamine by

possession. Because there was no special verdict sheet, the record does not reflect

whether the jury convicted defendant based on individual guilt or a theory of aiding

and abetting. Defendant appealed his convictions to the Court of Appeals.


      The Court of Appeals announced two holdings pertinent to this appeal. First,

the Court of Appeals determined that the trial court erred in giving an aiding and

abetting instruction because “[t]he evidence does not reveal Defendant expressly

communicated his intent to aid or encourage either Tucker or Sawyer.” State v.

Maddux, ___ N.C. App.___, 803 S.E.2d 463, 2017 WL 3259784, at *6 (2017)

(unpublished). The Court of Appeals added:

                    Further, there is no evidence to warrant the
             inference of aid from the relationship or friendship they
             shared. Defendant is Sawyer’s stepfather. However,
             Sawyer did not live with Defendant. The only evidence
             linking Sawyer to Defendant’s home is Defendant’s
             admission he allowed Sawyer to “occasionally crash[ ] on
             his couch in the living room ... every once in a while,” and
             one piece of mail addressed to Sawyer at Defendant’s
             address. The evidence does not disclose a friendship or
             close relationship between the men. On the contrary, the
             evidence tends to show a contentious relationship.
             Defendant told Detectives Sawyer “was a liar and that you
             cannot trust anything that he said.” Furthermore, the only
             evidence linking Defendant to Tucker is their mutual
             connection to Sawyer, living next door to one another, and
             Tucker's statement to Detective Creech about the bag
             found in her room.

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                    This evidence is not enough to show Defendant aided
              and abetted another. Accordingly, we hold the court erred
              by instructing the jury on the State’s theory of aiding and
              abetting.

Maddux, 2017 WL 3259784, at *6 (alterations in original) (footnote and citations

omitted).

       Second, the Court of Appeals held that the instruction constituted plain error

entitling defendant to a new trial. Id. at *7. The Court of Appeals correctly noted

that because defendant did not object to the instruction at trial, the court must review

the instruction for plain error. Id. at *5. Then the Court of Appeals set out the test

for plain error as follows:

              Plain error occurs when the error is “so basic, so
              prejudicial, so lacking in its elements that justice cannot
              have been done [.]” State v. Odom, 307 N.C. 655, 660, 300
              S.E.2d 375, 378 (1983) (quotation marks omitted) (quoting
              United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. [
              ])[, cert. denied, 459 U.S. 1018 (1982)]). “Under the plain
              error rule, defendant must convince this Court not only
              that there was error, but that absent the error, the jury
              probably would have reached a different result.” State v.
              Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993)
              (citation omitted).”

Id. (alteration in original).

       After reciting the test for plain error as stated above, the Court of Appeals

opined that “absent the erroneous jury instruction, the jury probably would have

reached a different result” for four reasons: (1) “The evidence linking Defendant to

the offenses is entirely circumstantial”; (2) “There is no direct evidence linking


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                                   Opinion of the Court



Defendant to the manufacturing evidence found in the house”; (3) “The items found

in his home, such as the cold packs and pseudoephedrine medication, are common

household products”; and (4) “Detectives found the actual manufacturing device and

only evidence chemically analyzed and determined to be methamphetamine in the

back yard, between Defendant and Tucker’s homes.” Id. at *7. Later in its opinion,

however, the Court of Appeals concluded that “[h]ere, unlike in Lawrence, the

evidence is not ‘overwhelming and uncontroverted’ showing Defendant’s guilt.” Id.

(quoting State v. Lawrence, 365 N.C. 506, 519, 723 S.E.2d 326, 335 (2012)). As a

result of its conclusion that the trial court committed plain error, the Court of Appeals

granted a new trial to Defendant. Id.

      Following the decision by the Court of Appeals, the State filed a petition for

discretionary review, which we allowed on 1 March 2018. In its petition, the State

requested that we examine whether the Court of Appeals erred by holding that the

trial court committed plain error in giving the aiding and abetting instruction.

      This Court reviews the decision of the Court of Appeals to determine whether

it contains any errors of law. N.C. R. App. P. 16(a); State v. Mumford, 364 N.C. 394,

398, 699 S.E.2d 911, 914 (2010) (citation omitted). We agree with the Court of

Appeals that the trial court erred in giving the aiding and abetting instruction. The

Court of Appeals, however, incorrectly concluded that the error amounted to plain

error. For the reasons stated below we conclude that the Court of Appeals erred in

determining that plain error occurred.


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                                    Opinion of the Court



   II.      Analysis

         The Court of Appeals improperly applied the plain error standard of review to

the facts here. Specifically, the Court of Appeals erred in two ways by (1) incorrectly

applying the plain error standard we articulated in State v. Lawrence, and (2)

concluding on this evidence that there was plain error when applying the correct

standard.

         An appellate court will apply the plain error standard of review to unpreserved

instructional and evidentiary errors in criminal cases. Lawrence, 365 N.C. at 512,

723 S.E.2d at 330. In Lawrence, we reaffirmed our holding in State v. Odom that

initially incorporated the plain error rule into North Carolina law. Id. at 516-18, 723

S.E.2d at 333-34; see also Odom, 307 N.C. at 659-62, 300 S.E.2d at 378-79 (adopting

the plain error rule used by the federal courts).

         In reaffirming Odom, we held that to demonstrate that a trial court committed

plain error, the defendant must show “that a fundamental error occurred at trial.”

Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (citing Odom, 307 N.C. at 660, 300

S.E.2d at 378). To show fundamental error, a defendant “must establish prejudice—

that, after examination of the entire record, the error ‘had a probable impact on the

jury’s finding that the defendant was guilty.’ ” Id. at 518, 723 S.E.2d at 334 (quoting

Odom, 307 N.C. at 660, 300 S.E.2d at 378). Further, we held that, “because plain

error is to be applied cautiously and only in the exceptional case, the error will often

be one that “seriously affect[s] the fairness, integrity or public reputation of judicial


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                                  Opinion of the Court



proceedings.” ’ ” Id. at 518, 723 S.E.2d at 334 (alteration in original) (internal

citations omitted) (quoting Odom, 307 N.C. at 660, 300 S.E.2d at 378).

      In Lawrence, while we reaffirmed the legal principles applicable to plain error

review, we concluded that the defendant failed to meet his burden of demonstrating

such error. Id. at 519, 723 S.E.2d at 334. Specifically, we held that the trial court’s

instruction on conspiracy to commit robbery with a dangerous weapon was erroneous;

however, we determined that the error was not plain error, because “[i]n light of the

overwhelming and uncontroverted evidence, defendant cannot show that, absent the

error, the jury probably would have returned a different verdict.” Id. at 519, 723

S.E.2d at 335.

      Here the Court of Appeals stated the standard for plain error review correctly

and in accord with Lawrence: “Defendant must demonstrate that ‘absent the error,

the jury probably would have reached a different result.’ ” Maddux, 2017 WL

3259784, at *7 (quoting State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697

(1993)). But, the court later reasoned that “[h]ere, unlike in Lawrence, the evidence

is not ‘overwhelming and uncontroverted’ showing Defendant’s guilt.” Id. (quoting

Lawrence, 365 N.C. at 519, 723 S.E.2d at 335).

      The Court of Appeals concluded that the lack of “overwhelming and

uncontroverted” evidence against defendant, see id. (quoting Lawrence, 365 N.C. at

519, 723 S.E.2d at 335), meant that “the jury probably would have reached a different

result” absent the improper aiding and abetting instruction. Id. (quoting Jordan, 333


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N.C. at 440, 426 S.E. 2d at 697). In other words, the court appears to have indicated

that the lack of overwhelming and uncontroverted evidence against defendant

required the conclusion that a jury probably would have reached a different result.

The Court of Appeals erred in this line of reasoning. We did not hold in Lawrence

that plain error is shown, and a new trial is required, unless the evidence against

defendant is overwhelming and uncontroverted. Accordingly, the Court of Appeals

erred to the extent it so held. See id.

      The Court of Appeals also erred in applying the correct standard for plain

error. It erred because, “after examination of the entire record,” we conclude that the

ample evidence of defendant’s individual guilt made it unlikely that the improper

aiding and abetting instruction “had a probable impact on the jury’s finding that the

defendant was guilty.” Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (citing and

quoting Odom, 307 N.C. at 660, 300 S.E.2d at 378).

      Here the evidence supporting defendant’s individual guilt included the

following: (1) all of the items found throughout defendant’s residence that the State’s

witnesses identified as being commonly used in the production of methamphetamine,

including immediate precursor chemicals to the manufacture of methamphetamine,

and (2) all of the evidence found inside the one-pot meth lab and burn barrel on

defendant’s property, including the plastic bottles that tested positive for

methamphetamine and pseudoephedrine. After examining the entire record, we

conclude that the erroneous aiding and abetting instruction did not have a probable


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                                  Opinion of the Court



impact on the jury’s finding that defendant was guilty because of the evidence

indicating that defendant, individually, used the components found throughout his

house to manufacture methamphetamine in the one-pot meth lab on his own

property.

      The Court of Appeals offered several explanations for its conclusions. First,

the Court of Appeals determined that “[t]he evidence linking Defendant to the

offenses is entirely circumstantial.” Maddux, 2017 WL 3259784, at *7. Relatedly,

the Court of Appeals stated that “[t]here is no direct evidence linking Defendant to

the manufacturing evidence found in the house.”          Id.   Even if accurate, these

assertions are not dispositive. We have routinely stated, in the sufficiency of the

evidence context, that the characterization of evidence as either direct or

circumstantial does not resolve whether the evidence is sufficient. See, e.g., State v.

Chekanow, 370 N.C. 488, 492, 809 S.E.2d 546, 550 (2018) (“[T]he test of the

sufficiency of the evidence to withstand the motion is the same whether the evidence

is direct, circumstantial or both.” (quoting State v. Malloy, 309 N.C. 176, 178-79, 305

S.E.2d 718, 720 (1983))); State v. Haselden, 357 N.C. 1, 18, 577 S.E.2d 594, 605

(“Circumstantial evidence may be sufficient to support a conviction even when ‘the

evidence does not rule out every hypothesis of innocence.’ ” (quoting State v. Stone,

323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988))), cert denied, 540 U.S. 98 (2003).

       Second, the Court of Appeals reasoned that the items found in defendant’s

house were simply common household materials. Maddux, 2017 WL 3259784, at *7


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                                  Opinion of the Court



(“The items found in his home, such as the cold packs and pseudoephedrine

medication, are common household products.”).            But, this explanation is also

unavailing because it treats the items in isolation and without regard for where they

were located in the residence.

      For example, the second search of defendant’s master bedroom area revealed

a metal strainer, a glass measuring cup, and a trash bag containing balled-up, burnt

pieces of aluminum foil that were consistent with meth boats. In isolation, these

items could be innocent household items.        Had they been found in defendant’s

kitchen, one could conclude that they had no purpose outside of routine food

preparation and waste disposal.

      In contrast, here the metal strainer, the glass measuring cup, and the trash

bag containing the balled-up, burnt aluminum foil were found in defendant’s master

bedroom or bathroom, where they would have no obvious or common household

purpose.   Additionally, the State’s witnesses testified that other items used in

methamphetamine production were present throughout defendant’s residence and

that defendant had a one-pot meth lab and a burn barrel on his property.

Furthermore, chemical analysis of a plastic bottle found inside the one-pot meth lab

and burn barrel tested positive for methamphetamine and pseudoephedrine. Lastly,

a Walgreens receipt for pseudoephedrine was also found in defendant’s bedroom.

When viewed with the rest of the evidence, the metal strainer, the glass measuring

cup, and the trash bag containing the burnt, aluminum foil strips appear to be


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                                     Opinion of the Court



something other than mere common household items. In context, these items point

more    toward   usage    in   the     manufacture,         possession,   or   trafficking   of

methamphetamine.

       Finally, the Court of Appeals found that “the actual manufacturing device and

only evidence chemically analyzed and determined to be methamphetamine [were

found] in the back yard, between Defendant[’s] and Tucker’s homes.” Id. at *7. As a

result, the Court of Appeals suggested that, because others had access to the burn

barrel, there is insufficient evidence to establish defendant as the “sole perpetrator.”

Id. This explanation fails, as did the Court of Appeals’ common household items

characterization, because it views in isolation the fact that the burn barrel was

accessible to others.

       We acknowledge that the evidence shows the burn barrel could have been

accessed by Sawyer or Tucker from Tucker’s home. Nonetheless, this finding does

not undermine the theory that defendant was the sole perpetrator. Specifically, the

Court of Appeals recognized the existence of methamphetamine “manufacturing

evidence” in defendant’s residence. Id. Furthermore, although the one-pot meth lab

and burn barrel were accessible from both residences, they were on defendant’s

property.   The evidence viewed in context amply supports the conclusion that

defendant used the items found in his house to manufacture methamphetamine in a

one-pot meth lab on his property.




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                                  Opinion of the Court



      We conclude, given this evidence of defendant’s individual guilt, that the

erroneous aiding and abetting instruction given by the trial court here did not have

“a probable impact on the jury’s finding that the defendant was guilty.” Lawrence,

365 N.C. at 518, 723 S.E.2d at 334 (quoting Odom, 307 N.C. at 660, 300 S.E.2d at

378).11

      For the reasons stated above, we hold that the trial court’s error in giving the

aiding and abetting instruction did not amount to plain error. Accordingly, the

decision of the Court of Appeals is reversed.

      REVERSED.




      11 In addition to the conclusions reached by the Court of Appeals, defendant
argues that we cannot uphold his conviction even though there is ample evidence of
his individual guilt because we have held that reversible error occurs when a jury is
presented with alternative theories of guilt when (1) one of the theories is not
supported by the evidence, and (2) it is unclear upon which theory the jury convicted
defendant. See State v. Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987). This
rule, however, is not applicable to plain error cases, such as this one, in which the
error complained of is not preserved. As such, we need not address the substance of
this argument.


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