State v. Stough

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-762
NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

STATE OF NORTH CAROLINA

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

SCOTT JAY STOUGH

Appeal by Defendant from judgments entered 1 October 2012

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

Heard in the Court of Appeals 9 January 2014.

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

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

DILLON, Judge.

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

October 2012 convicting him of eight drug-related crimes,

including, inter alia, trafficking in methamphetamine by

possession, as well as three conspiracy crimes involving

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

allegedly possessed was actually methamphetamine or to support

his conviction of multiple conspiracies. Defendant also

contends the trial court committed plain error in its

instructions pertaining to the conspiracy charges. Because we

believe that the evidence cannot support a conviction for both

conspiracy to traffic methamphetamine by possession and

conspiracy to traffic methamphetamine by manufacture, see State

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

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

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

conviction only. However, as to Defendant’s remaining

arguments, we find no reversible error.

The evidence of record tends to show the following:

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

convenient store in Cullowhee, North Carolina. The Mini Mart

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

a basement apartment below the Mini Mart.

Agent Shannon Ashe, with the North Carolina State Bureau of

Investigation, interviewed Tim Luker and Tripp Parker concerning

illegal drug activity at the Mini Mart. Both implicated

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

an ingredient used in the manufacture of methamphetamine, for

Defendant on three occasions.

Agent Ashe confirmed through MethCheck – a statewide

centralized computer that tracks all sales of pseudoephedrine –

that Luker had, indeed, purchased pseudoephedrine three times.

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

sister were used to purchase pseudoephedrine over 30 times

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

girlfriend, purchased pseudoephedrine on four occasions between

September and November 2010.

On 4 December 2010, Agent Ashe received a notification

through MethCheck that Defendant had just made a purchase of

pseudoephedrine at a local pharmacy and immediately proceeded to

that location, where he observed Defendant leaving the pharmacy

and proceeding to his sister’s basement apartment.

After securing a warrant, a team of officers approached

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

residence, police discovered marijuana, pipes for smoking

marijuana and methamphetamine, and two boxes of pseudoephedrine.

Police also entered the Mini Mart where they saw Defendant

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

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

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

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

police discovered a baggie of methamphetamine and several pieces

of paper containing “methamphetamine recipes.”

Another warrant was obtained to search the Mini-Mart.

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

number of items used in the production of methamphetamine. Also

at the Mini Mart, Police discovered a bottle containing a

mixture which purportedly included liquid methamphetamine under

one of the counters where Defendant had been standing.

Defendant was arrested, after which he was indicted on

numerous charges and tried in the 10 September 2012 session of

Jackson County Superior Court, the Honorable Alan Z. Thornburg

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

charges. The trial court entered judgments consistent with the

jury’s verdicts and sentenced Defendant to concurrent terms in

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

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

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

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

Defendant appeals.

I: Sufficiency of the Evidence; Standard of Review

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

the trial court erred by denying his motion to dismiss for

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

allegedly presented insufficient evidence to support more than

one conspiracy charge, implicating principles of double

jeopardy; and (2) the State allegedly presented insufficient

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

of a mixture containing methamphetamine. We address each

argument in turn.

“This Court reviews the trial court’s denial of a motion to

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007). “‘Upon defendant’s motion for dismissal,

the question for the Court is whether there is substantial

evidence (1) of each essential element of the offense charged,

or of a lesser offense included therein, and (2) of defendant’s

being the perpetrator of such offense. If so, the motion is

properly denied.’” State v. Fritsch, 351 N.C. 373, 378, 526

S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430

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

must consider all evidence admitted, whether competent or

incompetent, in the light most favorable to the State, giving

the State the benefit of every reasonable inference and

resolving any contradictions in its favor.” State v. Rose, 339

N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515

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

A: Multiple Conspiracy Convictions

Defendant first argues the State presented insufficient

evidence to support his three conspiracy convictions –

conspiracy to manufacture methamphetamine, conspiracy to traffic

methamphetamine by possession, and conspiracy to traffic

methamphetamine by manufacture – stating that, at most, the

State proved one conspiracy to manufacture and possess 200 to

400 grams of a mixture containing methamphetamine. Defendant

further contends his right to be free from double jeopardy was

infringed.

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

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

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

“No express agreement need be proved; proof of circumstances

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

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

whether single or multiple conspiracies are involved: the

essential question is the nature of the agreement or agreements,

but factors such as time intervals, participants, objectives,

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

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

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

The State contends that Defendant’s arguments have been

waived. Specifically, the State contends – and Defendant

concedes - that Defendant did not properly preserve his double

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

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

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

double jeopardy issue cannot be raised for the first time on

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

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

provide substantial evidence of three separate agreements to

support three conspiracy convictions – and not a constitutional

double jeopardy argument, Defendant concedes that his argument,

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

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

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

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

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

considered waived”).

However, with respect to two of Defendant’s conspiracy

convictions, the State makes the following declaration in its

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

traffick by possession, and conspiracy to traffick by

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

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

cites our decision in Howell, supra, to support this

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

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

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

traffic” in methamphetamine, there was not substantial evidence

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

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

we choose to consider Defendant’s sufficiency argument to the

extent that he argues the insufficiency of the evidence to

support both his conviction of conspiracy to traffic

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

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

three conspiracy convictions, namely his conviction of

conspiracy to traffic methamphetamine by manufacture.

B: Possession of 200 to 400 grams

Defendant argues on appeal that the State presented

insufficient evidence to support his possession of 200 to 400

grams of a mixture containing methamphetamine, an element of

trafficking by possession. This argument is properly preserved;

however, we conclude it is without merit.1

Specifically, Defendant argues that there was insufficient

evidence that the mixture in the bottle found under the Mini

Mart counter contained methamphetamine. Rather, Defendant

contends the State only presented evidence that the bottle

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

ammonium nitrate, lithium metal strips and Coleman fuel -

necessary to start the chemical reaction that produces

methamphetamine, but that the State “presented no evidence that

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

added to the mixture” to complete the chemical process.

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

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

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

Mini Mart, indeed, contained methamphetamine. For instance,

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

laboratory expert with twenty years of experience at the State

Bureau of Investigation, testified to the presence of this fifth

ingredient in the bottle as follows:

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

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

Further, Elizabeth Regan, forensic chemist with the North

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

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

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

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

Accordingly, there was substantial evidence that at least a

portion of the mixture in the bottle had combined to become

methamphetamine.

Defendant further contends that the testimony of his expert

revealed that the State’s evidence regarding its chemical

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

scientifically valid,” and therefore inconsistent with State v.

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

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

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

form of scientifically valid chemical analysis is required.” We

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

analysis was performed. Specifically, Agent Michael Piwowar, a

forensic chemist with the State Bureau of Investigation, Crime

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

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

the orange indication indicates a possibility of a

methamphetamine or a methamphetamine-like substance. So to

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

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

of methamphetamine and pseudoephedrine.”

After reviewing the evidence in the record in the light

most favorable to the State, we conclude the State presented

sufficient evidence for the jury to infer that the bottle in

Defendant’s constructive possession contained a methamphetamine

mixture.

II: Jury Instruction; Plain Error

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

the trial court committed plain error in two respects when it

instructed the jury on the conspiracy indictments. We have

carefully reviewed the jury instruction and conclude that the

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

either respect.

In this case, the trial court provided separate

instructions for each of the three conspiracy indictments.

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

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

instruct the jury on three virtually identical conspiracies

without giving the jury the option of finding that the three

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

with respect to any one of the three conspiracies charged.

Rather, Defendant argues that the trial court erred by failing

to provide an additional instruction that the jury could find

that Defendant had only entered into a single agreement to

commit three crimes – rather than three separate agreements – in

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

conspiracy. We note that we have ordered the judgment with

respect to one of Defendant’s three conspiracy convictions

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

However, even with respect to the two remaining conspiracy

convictions, we disagree with Defendant’s argument.

A trial court is required to instruct “on every substantive

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

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

the jury with any greater particularity than is necessary to

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

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

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

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

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

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

crime itself or the defendant’s criminal responsibility

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

omitted).

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

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

conspiracy] charges [of conspiracy] constituted only one

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

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

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

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

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

instruction” was “tantamount to a request for special

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

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

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

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

give this additional instruction; rather, he contends it was

plainly erroneous for the trial court not to give the

instruction ex mero motu. We find this argument unconvincing.

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

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

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

[multiple] charges [of conspiracy] constituted only one

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

instruction.

Alternatively, Defendant argues the instructions “violated

the unanimity requirement by listing five co-conspirators in the

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

conspiracy charges, the trial court stated that one of the

elements the State had to prove was that “Defendant and

Charlotte Stough, Harley Sheerer, Tim Luker, Amanda Clawson

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

argues that this conjunctive instruction deprived him of a

unanimous jury verdict because some of the jurors may have

believed that he conspired with one of the listed co-

conspirators while other jurors may have believed that he

conspired with a different co-conspirator. We addressed this

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

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

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

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

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

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

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

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

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

defendant in Worthington argued that the verdict sheet language

deprived him of his right to a unanimous jury verdict because

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

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

Court rejected this argument, holding that “the instructions

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

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

argument is overruled.

III: Double Jeopardy; Punitive Controlled Substances Tax

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

denial of his motion to dismiss on double jeopardy grounds –

because the State had already exacted a criminal punishment by

assessing and collecting a punitive controlled substances tax –

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

1998), Defendant presents this argument on appeal for

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

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

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

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

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

IV. CONCLUSION

For the reasons stated above, we vacate Defendant’s

conviction for conspiracy to traffick in methamphetamine by

manufacture and remand to the trial court to arrest judgment on

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

NO ERROR in part, REVERSED AND REMANDED in part.

Judge STROUD and Judge HUNTER, JR. concur.

Report per Rule 30(e).