IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-508
Filed: 5 April 2016
Union County, No. 11 CRS 51552
STATE OF NORTH CAROLINA
v.
ROGER CHRISTOPHER OXENDINE, Defendant.
Appeal by defendant from judgments entered 6 November 2014 by Judge
Christopher W. Bragg in Union County Superior Court. Heard in the Court of
Appeals 21 October 2015.
Attorney General Roy Cooper, by Assistant Attorney General Mariana M.
DeWeese, for the State.
John R. Mills for defendant-appellant.
GEER, Judge.
Defendant Roger Christopher Oxendine appeals from his convictions of
manufacturing methamphetamine and possessing precursors to methamphetamine.
On appeal, defendant contends that the indictment’s language was insufficient
because (1) with respect to the possession of methamphetamine precursors count, it
failed to allege defendant’s intent to use the precursors to manufacture or his
knowledge that they would be used to manufacture methamphetamine; and (2) with
respect to the manufacturing methamphetamine count, the indictment relied on
defendant’s possessing precursors as the basis for the manufacturing charge. We
hold, as to the possession count, that the indictment was insufficient and therefore
STATE V. OXENDINE
Opinion of the Court
arrest judgment on that count for possessing a precursor chemical to
methamphetamine. As to the count for manufacturing methamphetamine, however,
we hold that the indictment was sufficient.
Facts
The State’s evidence tended to show the following facts. On 15 March 2011,
Lieutenant Mendel Miles of the Union County Sheriff’s Office received information
causing him to go to a residence in Stallings, North Carolina, along with Detectives
James Godwin and Mark Thomas, both of the Union County Sheriff’s Office. When
Lieutenant Miles and the other officers arrived, they observed a detached garage
about 75 feet from the main residence. The officers approached the building using
the public driveway and heard two different male voices inside of the building. They
also smelled a strong odor of ammonia.
Lieutenant Miles stepped around to an open door where he initially saw Tony
Sowards standing behind a drill press. To the right side of the open door, he saw
defendant, who appeared to be condensing ammonia. After Lieutenant Miles
announced his presence and identified himself, defendant attempted to hide.
Lieutenant Miles ordered both individuals to exit the building, but defendant had to
be told twice before he complied. Defendant and Mr. Sowards were then placed in
handcuffs.
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Opinion of the Court
After securing the location, Lieutenant Miles put on protective gear and
entered the garage to perform a safety assessment. In the garage, the investigating
team found materials used to manufacture methamphetamine, including, among
other things: Coleman fuel, an ammonia condenser, cold packs, lye, Roebic Crystal
Drain Cleaner, Liquid Fire, tubing, lithium batteries, pseudoephedrine tablets, and
muriatic acid. The team also found a liquid solution in containers in the garage that
was analyzed and samples of the solution revealed the presence of
methamphetamine, as well as chemicals consistent with a clandestine manufacture
of methamphetamine.
On 3 October 2011, defendant was indicted, in a superseding indictment, for
manufacturing methamphetamine and for possessing a precursor chemical to
methamphetamine. Defendant was found guilty of both charges, and the trial court
sentenced defendant to a term of 86 to 113 months for manufacturing
methamphetamine and a concurrent term of 17 to 21 months for possession of a
precursor to methamphetamine. Defendant timely appealed to this Court.
I
Defendant first argues that the indictment for possession of
methamphetamine precursors was insufficient because it failed to allege either
defendant’s intent to use the precursors to manufacture methamphetamine or his
knowledge that they would be used to manufacture methamphetamine. We agree.
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Opinion of the Court
Although defendant did not object at trial to the facial inadequacy of the
precursor indictment, “[a] challenge to the facial validity of an indictment may be
brought at any time, and need not be raised at trial for preservation on appeal.” State
v. LePage, 204 N.C. App. 37, 49, 693 S.E.2d 157, 165 (2010). “[W]e review the
sufficiency of an indictment de novo.” State v. McKoy, 196 N.C. App. 650, 652, 675
S.E.2d 406, 409 (2009).
To be valid, “ ‘an indictment must allege every essential element of the criminal
offense it purports to charge.’ ” State v. Billinger, 213 N.C. App. 249, 255, 714 S.E.2d
201, 206 (2011) (quoting State v. Courtney, 248 N.C. 447, 451, 103 S.E.2d 861, 864
(1958)). However, “ ‘[o]ur courts have recognized that[,] while an indictment should
give a defendant sufficient notice of the charges against him, it should not be
subjected to hyper technical scrutiny with respect to form.’ ” State v. Harris, 219 N.C.
App. 590, 592, 724 S.E.2d 633, 636 (2012) (quoting In re S.R.S., 180 N.C. App. 151,
153, 636 S.E.2d 277, 280 (2006)). “ ‘The general rule in this State and elsewhere is
that an indictment for a statutory offense is sufficient, if the offense is charged in the
words of the statute, either literally or substantially, or in equivalent words.’ ” State
v. Simpson, ___ N.C. App. ___, ___, 763 S.E.2d 1, 3 (2014) (quoting State v. Greer, 238
N.C. 325, 328, 77 S.E.2d 917, 920 (1953)).
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Opinion of the Court
Here, defendant was charged with violating N.C. Gen. Stat. § 90-95(d1)(2)
(2013),1 which makes it unlawful for any person to “[p]ossess an immediate precursor
chemical with intent to manufacture methamphetamine” 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
methamphetamine.” The indictment in this case alleged that defendant “unlawfully,
willfully and feloniously did possess lithium batteries, ammonia nitrate, malonic acid,
pseudoephedrine blister packs, coleman fuel, roebic drain cleaner, liquid fire, cold
pack, household lye and tubing used in the manufacture of methamphetamine.”
Defendant contends that this indictment failed to allege, as required by N.C.
Gen. Stat. § 90-95(d1)(2), that he had the required specific intent: that he either
possessed the precursor with intent himself to manufacture methamphetamine or he
possessed the precursor knowing or having reasonable cause to believe that it would
be used by someone else to manufacture methamphetamine. In support of his
argument that the indictment was insufficient because of this omission, defendant
relies on State v. Miller, 231 N.C. 419, 420, 57 S.E.2d 392, 394 (1950), in which our
Supreme Court held “[w]hen a specific intent is a constituent element of the crime, it
must be alleged in the indictment. The omission of such allegation is fatal.”
1N.C. Gen. Stat. § 90-95(d1) was amended by 2014 N.C. Sess. Ch. 115, § 41(b) and 2015 N.C.
Sess. Ch. 32, § 3. Because defendant committed the charged offenses on 15 March 2011, well before
the effective dates of these respective amendments, we cite to the 2013 version of N.C. Gen. Stat. § 90-
95(d1), which is the most current version of this subsection applicable to defendant.
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Opinion of the Court
We agree with defendant that the indictment is insufficient to allege the
necessary specific intent or knowledge. While the indictment alleges that the
identified materials possessed by defendant are used in the manufacture of
methamphetamine, the indictment fails to allege that defendant, when he possessed
those materials, intended to use them, knew they would be used, or had reasonable
cause to believe they would be used to manufacture methamphetamine. The
indictment contains nothing about defendant’s intent or knowledge about how the
materials would be used.
The State, in arguing that the indictment is adequate, relies upon Harris. In
Harris, however, this Court was not required to address the question presented by
this case: whether an element of the crime relating to defendant’s specific intent or
knowledge or belief of someone else’s intent was omitted. Instead, the statute at issue
in Harris required the State to prove generally that a defendant was “knowingly” on
school premises. Id. at 596, 724 S.E.2d at 637. The Court observed that the term
“willfully” implies that an act was done “knowingly.” Id. at 595, 724 S.E.2d at 637.
Consequently, the Court concluded, the indictment’s allegation that defendant was
“willfully” on school premises “sufficed to allege the requisite ‘knowing’ conduct.” Id.
at 596, 724 S.E.2d at 638.
In this case, however, simple “knowing” possession of the materials specified
in the indictment does not violate the law. Therefore, the fact that this Court has
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Opinion of the Court
equated an allegation of willfulness with knowledge does not lead to the conclusion
that the indictment is valid. The allegation that defendant “willfully” possessed the
materials does not allege that he did so for any particular purpose or with knowledge
or reasonable cause to believe that the materials would be used for any particular
purpose. Therefore, Harris is inapplicable.
The dissent also relies upon this Court’s unpublished opinion in State v. Ricks,
232 N.C. App. 186, 754 S.E.2d 259, disc. review denied, 367 N.C. 785, 766 S.E.2d 645
(2014), in which the Court addressed the sufficiency of an indictment charging the
defendant with possession of a stolen firearm, an offense requiring that the defendant
know that the firearm was stolen. This Court held: “[T]he indictment alleged that
defendant ‘unlawfully, willfully, and feloniously’ possessed the stolen rifle. This
allegation of willfulness was sufficient under . . . Harris to allege the knowledge
element of the offense of possession of a stolen firearm.” In other words, since the
offense required mere knowledge that the firearm was stolen, an allegation that the
defendant “ ‘willfully’ ” possessed the stolen gun was sufficient.
For this case to be analogous to Ricks, the criminal offense would have to make
possession of the products specified in the indictment unlawful if the defendant knew
that they could be used in the manufacture of methamphetamine. However, that
knowledge is not what makes possession of precursor chemicals illegal. Even though
much of the public knows that pseudoephedrine is used in the manufacture of
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Opinion of the Court
methamphetamine, that knowledge does not make it unlawful to go to the drugstore
and buy the product when a person has a cold. The statute makes it unlawful to
possess the precursors if the individual intends to use them in the manufacture of
methamphetamine or knows or has cause to believe that someone else will do so. The
issue is the defendant’s knowledge of how the precursors will be used. Just as an
indictment for possession of cocaine with intent to sell or deliver must allege the
specific intent regarding why the defendant possesses the cocaine, so too the
indictment in this case must have alleged why defendant possessed the precursors:
for manufacture of methamphetamine by himself or someone else.
Without an allegation that defendant possessed the required intent,
knowledge, or cause to believe, the indictment fails to allege an essential element of
the crime. Accordingly, we must arrest judgment on defendant’s conviction of
possession of a precursor chemical in violation of N.C. Gen. Stat. § 90-95(d1)(2)(b).
II
Next, defendant argues that the indictment was insufficient to allege the
offense of manufacturing methamphetamine. The indictment alleged that defendant:
unlawfully, willfully and feloniously did knowingly
manufacture methamphetamine, a controlled substance
listed in Schedule II of the North Carolina Controlled
Substances Act. The manufacturing consisted of
possessing lithium batteries, ammonia nitrate, malonic
acid, pseudoephedrine blister packs, coleman fuel, roebic
drain cleaner, liquid fire, cold pack, household lye and
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Opinion of the Court
tubing in a garage at 4701 Stevens Mill Road, Stallings,
North Carolina.
Defendant contends that possession of materials that can be used to
manufacture methamphetamine is not the same as manufacturing the substance
itself. Further, defendant argues that this count of the indictment essentially just
alleges another count of possession of precursor chemicals.
Under N.C. Gen. Stat. § 90-95(a)(1) (2015), “it is unlawful for any person [t]o
manufacture . . . a controlled substance[.]” The first sentence of the indictment
precisely tracks the language of the statute. An indictment is only required to allege
the essential elements of the crime sought to be charged. Billinger, 213 N.C. App. at
255, 714 S.E.2d at 206. “ ‘Allegations beyond the essential elements of the crime
sought to be charged are irrelevant and may be treated as surplusage.’ ” State v.
White, 202 N.C. App. 524, 529, 689 S.E.2d 595, 598 (2010) (quoting State v. Bollinger,
192 N.C. App. 241, 246, 665 S.E.2d 136, 139 (2008), aff’d per curiam, 363 N.C. 251,
675 S.E.2d 333 (2009)). Consequently, “[t]he use of superfluous words should be
disregarded.” State v. Taylor, 280 N.C. 273, 276, 185 S.E.2d 677, 680 (1972).
The essential elements of the offense of manufacturing methamphetamine do
not include what form the manufacturing took, but rather simply that the defendant
(1) manufactured (2) a controlled substance. N.C. Gen. Stat. § 90-95(a)(1). Indeed,
in State v. Miranda, ___ N.C. App. ___, ___, 762 S.E.2d 349, 353-54 (2014), this Court
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Opinion of the Court
specifically rejected any contention that the State is required to allege in the
indictment the type of manufacturing activity in which the defendant engaged:
Although Defendant contends in his brief that the
indictment purporting to charge him with trafficking in
cocaine by manufacturing was fatally defective based upon
the fact that it failed to specify the exact manner in which he
allegedly manufactured cocaine or a cocaine-related mixture,
Defendant has failed to cite any authority establishing the
existence of such a requirement, and we have not identified
any such authority in the course of our own research. On the
contrary, the relevant count of the indictment that had been
returned against Defendant in this case is clearly couched in
the statutory language and alleges that Defendant’s conduct
encompassed each of the elements of the offense in question.
Although Defendant is correct in noting that the indictment
does not explicitly delineate the manner in which he
manufactured cocaine or a cocaine-related mixture, the
relevant statutory language creates a single offense
consisting of the manufacturing of a controlled substance
rather than multiple offenses depending on the exact
manufacturing activity in which Defendant allegedly
engaged.
Id. at ___, 762 S.E.2d at 353-54.
Because the State was not required to allege the specific form that the
manufacturing activity took, the allegations in the indictment regarding possession
of precursor chemicals is mere surplusage and may be disregarded. The indictment,
therefore, properly alleges a violation of N.C. Gen. Stat. § 90-95(a)(1).
Defendant, however, further argues that our courts have held indictments
“void for uncertainty” when more than one offense is charged within a single count.
Defendant points to State v. Williams, 210 N.C. 159, 160, 185 S.E. 661, 662 (1936), in
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Opinion of the Court
which the Supreme Court held that the fact the State charged several separate
offenses in one count rendered the indictment void for uncertainty. In Williams, the
bill of indictment charged that the defendant “ ‘unlawfully, willfully, and feloniously
did possess, manufacture, have under his control, sell, prescribe, administer, or
dispense a narcotic drug, to-wit: Cannibis[.]’ ” Id. at 159-60, 185 S.E. at 661.
Here, unlike the indictment in Williams, the indictment included two separate
and distinct counts. Count I charged defendant with manufacturing
methamphetamine in violation of N.C. Gen. Stat. § 90-95(a)(1), while Count II
charged defendant with possession of a methamphetamine precursor in violation of
N.C. Gen. Stat. § 90-95(d1)(2). We, therefore, hold that the indictment was not void
for uncertainty.
III
Finally, defendant argues that the trial court erred in instructing the jury on
the manufacturing methamphetamine charge. According to defendant, the court
instructed the jury on a non-existent crime. Defendant did not, however, object at
trial to the jury instructions.
While, ordinarily, we could review the instructions under a plain error
standard, State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996), defendant
has specifically asserted that “Mr. Oxendine has not requested plain error review.”
Defendant further notes our Supreme Court’s holding that a defendant waives plain
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Opinion of the Court
error review when he does not specifically argue plain error. See State v. Wiley, 355
N.C. 592, 607, 565 S.E.2d 22, 35 (2002). We, therefore, do not review the jury
instructions in this case for plain error.
Defendant asks instead that this Court suspend the Rules of Appellate
Procedure under Rule 2 of those Rules, apply a de novo review to the question
whether the trial court erred in its instructions, and then conclude that this error
amounts to manifest injustice as required under Rule 2. However, the analysis under
“plain error” review is not more rigorous than that required if we were to act under
Rule 2.
Our Supreme Court has held:
For error to constitute plain error, a defendant must
demonstrate that a fundamental error occurred at trial. To
show that an error was fundamental, 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. Moreover, 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 proceedings[.]
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations
and quotation marks omitted). The first step under plain error review is, therefore,
to determine whether any error occurred at all. However, in the second step, the
defendant must show that any error was fundamental by establishing that the error
had a probable effect on the verdict.
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Opinion of the Court
Our Supreme Court has held with respect to Rule 2: “While an appellate court
has the discretion to alter or suspend its rules, exercise of this discretion should only
be undertaken with a view toward the greater object of the rules. This Court has
tended to invoke Rule 2 for the prevention of manifest injustice in circumstances in
which substantial rights of an appellant are affected.” State v. Hart, 361 N.C. 309,
316, 644 S.E.2d 201, 205 (2007) (internal quotation marks omitted). In other words,
rather than deciding whether an error had a probable impact on the verdict, we must
determine whether suspending the Appellate Rules is necessary to prevent manifest
injustice.
Here, the jury was given the following instruction related to the offense of
manufacturing methamphetamine:
For you to find the defendant guilty of this offense, the
state must prove beyond a reasonable doubt that the
defendant manufactured methamphetamine. Knowingly
possessing lithium batteries, ammonia nitrate, malonic
acid, pseudoephedrine blister packs, Coleman fuel, Roebic
drain cleaner, liquid fire, cold packs, household lye and
tubing for the purpose of combining which created
methamphetamine would be manufacture of a controlled
substance.
(Emphasis added.)
The trial court further instructed the jury:
If you find from the evidence beyond a reasonable
doubt that on or about the alleged date the defendant,
acting either by himself or acting together with other
persons, knowingly possessed lithium batteries, ammonia
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Opinion of the Court
nitrate, malonic acid, pseudoephedrine blister packs,
Coleman fuel, Roebic drain cleaner, liquid fire, cold packs,
household lye and tubing for the purpose of combining
which created methamphetamine, it would be your duty to
return a verdict of guilty. If you do not so find or have a
reasonable doubt, it would be your duty to return a verdict
of not guilty.
(Emphasis added.)
While defendant argues that the trial court was instructing the jury that it
could find manufacturing based on possession of precursor chemicals alone, we do not
agree. Although the instruction could have been more precisely worded, we believe a
jury would understand from this instruction that it was required to find not only that
defendant possessed these chemicals, but also that he possessed the chemicals in
order to combine them, and, upon doing so, he created methamphetamine.
Even if the instruction is imprecise, defendant has not shown that a failure to
suspend the Appellate Rules would result in manifest injustice. The evidence at trial
established that officers caught defendant in the actual act of manufacturing
methamphetamine and, following a search of the garage where defendant was found,
officers discovered numerous precursor chemicals used in manufacturing
methamphetamine and containers that held liquid, which tested positive for
methamphetamine and chemicals consistent with the clandestine manufacture of
methamphetamine. Further, defendant claimed to Detective Godwin that “it was not
his cook” and that he was just “helping someone out.” The evidence against defendant
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Opinion of the Court
was overwhelming and we can see no manifest injustice warranting application of
Rule 2.
Conclusion
We arrest judgment on Count II of the indictment, alleging a violation of N.C.
Gen. Stat. § 90-95(d1)(2). We have found no error, however, with respect to Count I
of the indictment, charging defendant with manufacturing a controlled substance in
violation of N.C. Gen. Stat. § 90-95(a)(1).
NO ERROR IN PART; JUDGMENT ARRESTED IN PART.
Judges HUNTER, JR. concurs.
Judge DILLON concurs in part and dissents in part in a separate opinion.
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No. COA15-508 – STATE v. OXENDINE
DILLON, Judge, concurring in part, dissenting in part.
I concur with Sections II and III of the majority’s opinion. However, because I
believe the indictment for possession of methamphetamine precursors was sufficient,
I respectfully dissent from the majority’s conclusion reached in Section I of its opinion.
Defendant was found with precursors used in the manufacturing of
methamphetamine. He was convicted under N.C. Gen. Stat. § 90-95(d1)(2), which
makes it unlawful for any person to possess “an immediate precursor chemical
knowing, or having reasonable cause to believe, that . . . [it] will be used to
manufacture methamphetamine.” N.C. Gen. Stat. § 90-95(d1)(2) (2011) (emphasis
added). Defendant argues (and the majority agrees) that the indictment charging
him with the crime was fatally defective because it failed to allege that Defendant
possessed the precursors “knowing that they would be used in the manufacture of
methamphetamine.”
The indictment, here, alleged that Defendant “unlawfully, willfully, and
feloniously did possess . . . [precursors] used in the manufacture of
methamphetamine.” (Emphasis added.) The “knowing/intent” element would have
been more clearly alleged had the pleader employed the phrase “knowing that said
precursors would be used” rather than merely employing the word “used.” However,
by including the word “willfully” in the allegation, I believe that – based on our case
law – the indictment is sufficient to allege that Defendant knew, not only that he
STATE V. OXENDINE
DILLON, J., concurring in part and dissenting in part
possessed precursors, but also that said precursors would be “used to manufacture
methamphetamine.”
Our Supreme Court explained in State v. Falkner, 182 N.C. 793, 108 S.E. 756
(1921), that the term willfully “implies that the act is done knowingly[.]” Id. at 758,
108 S.E. at 758. Our Court applied Falkner in State v. Ricks, 232 N.C. App. 186, 754
S.E.2d 259, 2014 WL 217724 (2014) (unpublished opinion), which involved a situation
almost identical to the case at bar. In Ricks, the defendant was charged under a
statute which required that the State prove that the defendant knew that the rifle
was, in fact, stolen. Id. The indictment itself, however, merely alleged that the
defendant “willfully” possessed a “rifle,” and that the rifle “was stolen property.” Id.
*3. The defendant argued that the indictment was defective because it did not
explicitly state that the defendant knew that the rifle he possessed was, in fact, stolen.
Id. We rejected the defendant’s argument, explaining:
[O]ur courts have held that the term “willfully,” in the
criminal context, “implies that the act is done knowingly
and of stubborn purpose.” . . . Here, the indictment alleged
that defendant “unlawfully, willfully, and feloniously”
possessed the stolen rifle. This allegation of willfulness
was sufficient . . . to allege the knowledge element of the
offense of possession of a stolen firearm.
Id. *3-4 (internal citations omitted). I see no meaningful difference between Ricks
and the present case. That is, by alleging that Defendant “willfully” possessed
precursors “used in the manufacture of methamphetamine,” the pleader sufficiently
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DILLON, J., concurring in part and dissenting in part
alleged that Defendant knew that the precursors would be used in the manufacture
of methamphetamine. This is not to say that the State is relieved from its burden of
proving at trial that Defendant had the requisite knowledge, but rather that the
allegations in the indictment are sufficient. Being one of the concurring judges in
Ricks, I vote to find no error in the present case.
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