IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-851
Filed: 16 May 2017
Beaufort County, Nos. 13 CRS 52279, 52289
STATE OF NORTH CAROLINA
v.
SUSAN MARIE MALONEY
Appeal by defendant from judgment entered 15 February 2016 by Judge
Marvin K. Blount III in Beaufort County Superior Court. Heard in the Court of
Appeals 21 March 2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Daniel
Snipes Johnson, for the State.
Michael E. Casterline for defendant-appellant.
BRYANT, Judge.
Where defendant failed to specifically and distinctly contend on appeal that
the trial court’s jury instruction amounted to plain error, we consider this argument
waived. Where a fatally defective indictment could not be cured by the State’s
material amendment prior to trial, we arrest judgment on and vacate the conviction.
Lastly, where the evidence at trial demonstrated termination, not continuation, of
manufacturing of methamphetamine in more than one location, two counts of
manufacturing of methamphetamine do not constitute a continuing offense, and the
trial court committed no error in denying defendant’s motions to dismiss.
STATE V. MALONEY
Opinion of the Court
In September 2013, officers at the Beaufort County Sheriff’s Office received
information that Randall Burmeister and an unknown female had been making
numerous pseudoephedrine (“PSE”) purchases at area pharmacies. PSE is a
precursor chemical in the manufacture of methamphetamine and is also an
ingredient in some over-the-counter cold and allergy drugs. Purchases of products
containing PSE are tracked through the National Precursor Log Exchange
(“NPLEX”) database. In order to buy a product containing PSE, an individual must
present identification at the pharmacy. The individual’s ID is scanned and entered
into the NPLEX database, along with the amount of PSE purchased. If the purchase
exceeds a permissible threshold amount, the sale will be blocked.
By analyzing NPLEX records, investigators determined that Burmeister’s
companion was defendant Susan Marie Maloney. Defendant and Burmeister met in
Illinois in 2008, shortly after Burmeister was released from prison after serving seven
years for manufacturing methamphetamine.
At the request of investigators, a Walgreens pharmacist contacted police when
Burmeister and Maloney purchased a PSE product on 7 October 2013. Under police
surveillance, the couple left the store in a blue Taurus and drove to a residence on
River Road, where officers confronted the couple in the driveway as they got out of
their car.
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STATE V. MALONEY
Opinion of the Court
Burmeister and defendant were not the owners of the residence, but were
renting a room. Burmeister gave police permission to search their room, and the
house’s owner, Ricky Brass, permitted police to search the entire house and the blue
Taurus, which he also owned. In the back seat of the car, Lieutenant Russell
Davenport found a bag containing bags of salt, which is used in the last process of
cooking methamphetamine. In the trunk of the car, Lieutenant Davenport found a
black garbage bag. Upon opening it, he was overcome with fumes. The police
immediately secured the scene and called the State Bureau of Investigation (“SBI”).
Burmeister and defendant were taken into custody.
However, defendant, who had recently had heart surgery, was taken to the
emergency room with chest pain. During the hours she was in the hospital, defendant
told police officers that Burmeister had been arrested for making methamphetamine
in Illinois. Defendant spent several hours in the hospital before being taken to the
magistrate’s office and served with an arrest warrant.
The next day, the SBI and local officers returned to the River Road residence.
Among the items found inside the garbage bag in the trunk of the car were empty
cans of solvent, a container of lye, an empty cold pack, tubing, a peeled lithium
battery, a coffee filter, a funnel, a glass jar, and plastic bottles containing various
residues and liquids. Inside the passenger compartment, officers also seized a
container of table salt, needle-nosed pliers, a can of solvent, and a package of PSE
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STATE V. MALONEY
Opinion of the Court
decongestant tablets. Officers also searched defendant and Burmeister’s rented
storage unit. There, they found another black garbage bag containing, inter alia, a
cold pack, an empty pack of starter fluid, coffee filters, peeled lithium batteries, empty
blister packs of nasal decongestant containing pseudoephedrine hydrochloride, and
various bottles containing off-white crystalline material. At trial, State’s witnesses
testified that many of the items found in both the trunk of the Taurus and the storage
unit could be used in the manufacture of methamphetamine using the “one-pot” or
“shake-and-bake” method. Ultimately, three plastic bottles—two from the garbage
bag found in the trunk of the car and one recovered from the garbage bag in the
storage unit—were found to contain concentrations of methamphetamine.
On 7 April 2014, defendant was indicted by a Beaufort County grand jury in
case 13 CRS 52279 for one count of manufacturing methamphetamine and one count
of possession of drug paraphernalia. Defendant was also indicted in case 13 CRS
52289 for one count of manufacturing methamphetamine, one count of possession of
methamphetamine precursor materials (salt, sulfuric acid, lithium, ammonium
nitrate and pseudoephedrine), and one count of possession of methamphetamine. All
offenses were alleged to have occurred on or about 8 October 2013.
Defendant’s cases were called for jury trial on 8 February 2016 before the
Honorable Marvin K. Blount III in Beaufort County Superior Court. The district
attorney made a motion to amend the second count in the indictment in case 13 CRS
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STATE V. MALONEY
Opinion of the Court
52289, the charge of possession of precursors to methamphetamine, which motion the
court granted.
At the close of the State’s evidence, defendant made a motion to dismiss, which
the court denied. Defendant presented evidence, testifying in her own defense and
calling additional witnesses. Among the witnesses who testified on behalf of
defendant was Burmeister, who had previously pled guilty shortly after his arrest for
his involvement in the same incident underlying this appeal.
Burmeister told the court that upon moving from Illinois to North Carolina, he
resumed making methamphetamine using the “one-pot” or “shake-and-bake” method.
He testified that the garbage bags found in the car and the storage unit both held
trash from separate batches of methamphetamine. He also testified that, after
defendant’s surgery, he would use her to help him obtain the PSE he needed to make
methamphetamine. His practice was to give defendant a dose of her medication that
made her “doped up.” Then, he would take defendant to a pharmacy, put her driver’s
license in her hand, “grab the card [for the PSE] off the shelf, stick it in her hand, and
walk her up to the window because she didn’t know what was going on. She didn’t
know where we were.” A pharmacy tech from the Walmart pharmacy also testified
for defendant, who recalled seeing defendant several times in the fall of 2013.
According to the tech, defendant was always accompanied by Burmeister, who
presented defendant’s identification and requested the medication. The tech testified
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STATE V. MALONEY
Opinion of the Court
that defendant appeared “sickly,” “a little disoriented,” and seemed not to know what
she needed, or what she was buying.
At the close of all the evidence, the court again denied defendant’s motion to
dismiss. Defendant was found guilty of each charge and the judge entered two
consolidated judgments. In 13 CRS 52279, defendant received a sentence of fifty-
eight to eighty-two months, and in 13 CRS 52289, defendant received another
sentence of fifty-eight to eighty-two months, to be served at the expiration of the first
sentence. Defendant appeals.
_________________________________________________________
On appeal, defendant contends the trial court (I) erred in entering judgment
on two counts of manufacturing methamphetamine where the trial court failed to
instruct the jury on two distinct offenses; (II) lacked jurisdiction to enter judgment
for possession of precursor materials; and (III) erred in entering judgment for two
counts of manufacturing methamphetamine as the crime was a “continuing offense.”
I
Defendant first argues the trial court erred in entering judgment on two counts
of manufacturing methamphetamine where the trial court failed to instruct the jury
on two distinct offenses. In other words, defendant contends the trial court’s failure
to so instruct functioned to dismiss one of the manufacturing indictments as a matter
of law and, therefore, one conviction arising from that indictment must be vacated.
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STATE V. MALONEY
Opinion of the Court
Defendant has failed to properly preserve this issue for our review by not
objecting at trial—either during the charge conference or before the jury retired—to
the court’s failure to instruct on what defendant now considers relevant instructions.
Defendant will not now be heard on this issue. “A party may not make any portion
of the jury charge or omission therefrom the basis of an issue presented on appeal
unless the party objects thereto before the jury retires . . . .” N.C. R. App. P. 10(a)(2)
(2017). “Therefore, defendant is entitled only to review pursuant to the plain error
rule.” State v. Call, 349 N.C. 382, 424, 508 S.E.2d 496, 522 (1998) (citation omitted).
In criminal cases, an issue that was not preserved by
objection noted at trial and that is not deemed preserved
by rule or law without any such action nevertheless may be
made the basis of an issue presented on appeal when the
judicial action questioned is specifically and distinctly
contended to amount to plain error.
N.C. R. App. P. 10(a)(4) (2017).
However, because defendant failed to “specifically and distinctly” argue plain
error on appeal, she has waived appellate review. We deem this assignment of error
waived. See State v. Davis, 202 N.C. App. 490, 497, 688 S.E.2d 829, 834 (2010)
(“[B]ecause [the] [D]efendant did not ‘specifically and distinctly’ allege plain error as
required by [our appellate rules], [the] [D]efendant is not entitled to plain error
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STATE V. MALONEY
Opinion of the Court
review of this issue.” (quoting State v. Dennison, 359 N.C. 312, 312–13, 608 S.E.2d
756, 757 (2005)).1
II
Next, defendant argues the trial court lacked jurisdiction to enter judgment for
possession of precursor chemicals because the indictment for that offense was fatally
defective and the State’s attempt to cure the defect involved a substantial alteration
to the indictment. In other words, defendant contends that because the indictment
could not be cured at trial by amendment, the trial court lacked jurisdiction as to this
offense and defendant’s conviction for possession of methamphetamine precursor
materials should be vacated. We agree.
“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. Oxendine, ___ N.C. App. ___, ___, 783 S.E.2d 286, 289 (2016) (alteration in
original) (quoting 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.” Id. (quoting 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.’ ” Id. (quoting State v. Billinger, 213 N.C. App. 249, 255,
1 Further, we reject defendant’s attempt to recast this issue on appeal as structural error
requiring de novo review and dismissal as a matter of law.
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STATE V. MALONEY
Opinion of the Court
714 S.E.2d 201, 206 (2011)). “A conviction based on a flawed indictment must be
arrested.” State v. De La Sancha Cobos, 211 N.C. App. 536, 540, 711 S.E.2d 464, 468
(2011) (citing State v. Outlaw, 159 N.C. App. 423, 428, 583 S.E.2d 625, 629 (2003)).
In State v. Oxendine, the indictment charging the defendant with possessing
an immediate precursor chemical with intent to manufacture methamphetamine or
possessing precursor chemicals “knowing, or having reasonable cause to believe,” that
the precursor chemicals will be used to manufacture methamphetamine
fail[ed] to allege that [the] 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
contain[ed] nothing about [the] defendant’s intent or
knowledge about how the materials would be used.
___ N.C. App. at ___, 783 S.E.2d at 289 (emphasis added). Instead, the indictment in
Oxendine alleged that the defendant “unlawfully, willfully and feloniously did possess
[precursor chemicals] used in the manufacture of methamphetamine.” Id.
Accordingly, this Court arrested judgment on the defendant’s conviction of possession
of a precursor chemical because, “[w]ithout an allegation that [the] defendant
possessed the required intent, knowledge, or cause to believe, the indictment fail[ed]
to allege an essential element of the crime.” Id. at ___, 783 S.E.2d at 290.
We agree with defendant, and the State acknowledges, that State v. Oxendine
is directly applicable to the instant case. Here, on 9 February 2016 during pretrial
motions, the district attorney made a motion to amend the second count in the
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STATE V. MALONEY
Opinion of the Court
indictment in case 13 CRS 52289, the charge of possession of precursor materials
used to produce methamphetamine:
[THE STATE:] . . . In this case, we’re requesting the
language be substituted--knowing or having reasonable
cause to believe that the immediate precursor chemical
would be used to manufacture methamphetamine, a
controlled substance.
THE COURT: Okay. All right. The State’s motion is
allowed.
As a result, Count II of the indictment in case 13 CRS 52289, was amended (the
district attorney’s handwritten addition is underlined), to read as follows:
The jurors for the State upon their oath present that on or
about the date shown above and in the county named
above, the defendant named above unlawfully, willfully
and did knowingly possess salt, sulfuric acid, lithium,
amonium [sic] nitrate and pseudoephedrine, such items
being precursors used to produce methamphetamine know
or have reason to know and cause to believe that the
immediate precursor chemical would be used to
manufacture a controlled subs [sic].
Similar to the indictment in Oxendine, here, Count II of the indictment in case
13 CRS 52289 also fails to allege an essential element of the crime, namely,
defendant’s intent or knowledge “about how the materials would be used,” i.e., “for
manufacture of methamphetamine by h[er]self or someone else.” See id. at ___, ___,
783 S.E.2d at 289, 290.
“The Criminal Procedure Act provides that ‘[a] bill of indictment may not be
amended.’ ” De La Sancha Cobos, 211 N.C. App. at 541, 711 S.E.2d at 468 (alteration
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STATE V. MALONEY
Opinion of the Court
in original) (quoting N.C. Gen. Stat. § 15A-923(e) (2009)). An “amendment” is “any
change in the indictment which would substantially alter the charge set forth in the
indictment.” Id. (quoting State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224
(1996)). Where an amendment to an indictment involves an element of the crime
charged, it is a “material” one. See id. at 542, 711 S.E.2d at 468–69.
Here, the State attempted to materially amend Count II of the indictment in
case 13 CRS 52289 before trial by adding that defendant knew or had reason to know
that the immediate precursor materials would be used to manufacture
methamphetamine, a controlled substance. This language, which functioned to
establish an essential element of the crime of possession of precursor materials,
materially amended the flawed indictment and constitutes reversible error. Because
this fatally defective indictment could not be cured by the State’s material
amendment prior to trial, we arrest the trial court’s judgment and vacate defendant’s
conviction on Count II of the indictment in case 13 CRS 52289.
III
Lastly, and in the alternative to defendant’s argument in Section I, supra,
defendant contends the trial court erred in entering judgment for two separate counts
of manufacturing methamphetamine because the crime was a single continuing
offense and, therefore, one of defendant’s convictions should be vacated. We disagree.
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STATE V. MALONEY
Opinion of the Court
“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) (citing State v.
Mckinnon, 306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982)). “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 (2000)
(quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). “Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980)
(citations omitted).
“A continuing offense . . . is a breach of the criminal law not terminated by a
single act or fact, but which subsists for a definite period and is intended to cover or
apply to successive similar obligations or occurrences.” State v. Johnson, 212 N.C.
566, 570, 194 S.E.2d 319, 322 (1937). “North Carolina appellate courts have held that
analogous activities are continuing offenses.” State v. Grady, 136 N.C. App. 394, 400,
524 S.E.2d 75, 79 (2000) (citations omitted); see also State v. Calvino, 179 N.C. App.
219, 223, 632 S.E.2d 839, 843 (2006) (vacating one of two convictions for keeping a
vehicle for selling a controlled substance as double jeopardy prohibits a conviction for
two counts under the applicable statute as “the offense is a continuing offense”). For
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STATE V. MALONEY
Opinion of the Court
example, illegal possession of stolen property is a continuing offense beginning at
receipt and continuing until divestment, see State v. Davis, 302 N.C. 370, 372–75, 275
S.E.2d 491, 493–94 (1981), and kidnapping is a continuing offense that lasts from the
time of initial confinement until the victim regains free will, see State v. White, 127
N.C. App. 565, 570, 492 S.E.2d 48, 51 (1997).
In Grady, the defendant was charged with two counts of maintaining a
dwelling for the use of a controlled substance. In determining that maintaining a
dwelling is a continuing offense, this Court noted that, if it were not, “the State would
be free . . . to ‘divide a single act . . . into as many counts . . . as the prosecutor could
devise.’ ” 136 N.C. App. at 400, 524 S.E.2d at 79 (alterations in original) (quoting
White, 127 N.C. App. at 570, 492 S.E.2d at 51). This Court also described a situation
which would not constitute a continuing offense: “There is no evidence indicating a
termination and subsequent resumption of drug trafficking at this dwelling; to the
contrary, the evidence shows that drugs were readily available there on request
throughout the investigation.” Id. In other words, because the act of maintaining a
dwelling in Grady involved drug transactions which took place over time at a single
dwelling, the act of maintaining a dwelling could not be divided into discrete events
(it was a continuing offense), and, therefore, the two convictions violated the
constitutional prohibition against double jeopardy. Id.
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STATE V. MALONEY
Opinion of the Court
The crime of manufacturing a controlled substance “means the production,
preparation, propagation, compounding, conversion, or processing of a controlled
substance by any means . . . .” N.C. Gen. Stat. § 90-87(15) (2015). In the instant case,
two separate methamphetamine labs, or the evidence thereof, were discovered in the
trunk of the Taurus and in the storage unit. In both locations, various materials
related to the manufacture of methamphetamine were discovered in black garbage
bags. Defendant argues that this “evidence suggests a single continuous operation
where the same participants were making batches of the drug, with various stages of
the preparation and processing occurring in locations which included the residence,
the car, and the storage locker.”
We disagree with defendant’s characterization. In the present case, the
evidence at trial demonstrated termination, not continuation, of separate processes
of manufacturing methamphetamine in more than one location. In both locations—
the trunk of the car and the storage unit—the chemical reaction process had reached
the end stage where gas had been introduced into the liquid to precipitate a useable
form of methamphetamine. In other words, the two separate garbage bags found in
two distinct locations each contained evidence that separate manufacturing offenses
had been completed. In fact, defendant’s own witness made the point that the
garbage bags held trash from separate batches of methamphetamine manufactured
on separate dates. While we do not think the statute necessarily requires a completed
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STATE V. MALONEY
Opinion of the Court
process—“manufacturing a controlled substance means the production, preparation,
propagation, compounding, conversion, or processing of a controlled substance by any
means,” id. § 90-87(15) (emphasis added)—based on the facts present in the instant
case, it is clear that two separate and distinct locations contained two separate
methamphetamine manufacturing processes. Accordingly, the trial court did not err
by entering judgment for two separate counts of manufacturing methamphetamine.
Defendant’s argument is overruled.
NO ERROR IN PART; JUDGMENT ARRESTED AND CONVICTION
VACATED IN PART.
Judge INMAN concurs.
Judge MURPHY concurs as to Parts I and II, and concurs in the result in Part
III by separate opinion.
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No. COA16-851 – State v. Maloney
MURPHY, Judge, Concurring as to Parts I and II and the result of Part III.
I concur in the Court’s opinion as to Parts I and II and the result of Part III,
but I write separately to express my concerns regarding the application of N.C.G.S. §
90-87(15) to the manufacture of methamphetamine.
In the present case, there were three locations where drug manufacturing
material was found: in Maloney and Burmeister’s bedroom, in the storage unit
Maloney had rented, and in the car the couple had borrowed from Brass. Indictments
were filed regarding the materials found in the car and storage unit, but not the
bedroom. Defendant argues that the manufacture of a controlled substance, lacking
any specified duration or particular culmination, is a continuing offense. The
majority emphasizes the separate locations of the materials found. However, I would
hold that the locations of the items found are not controlling on the number of counts
of manufacturing methamphetamine as the items found were only indicative of past
“one-pot” manufacturing or the intention and ability to “cook” in the future.
As the majority points out, there were three empty bottles evidencing past
cooks. I believe that each one-pot cook constituted an act of manufacturing
methamphetamine under the statute as it is the bulk of the eventual completed
process of turning chemicals into the controlled substance. While I arrive at the same
result as the majority today, had all three bottles been in the same location I still
would have found no error as they were merely trash and evidence of past illegal
conduct.
STATE V. MALONEY
MURPHY, J., concurring
As was discussed at length during arguments of counsel, there are many ways
to analyze one continuing process as opposed to individual acts of manufacturing
methamphetamine. It is a reasonable reading of the statute and our case law that
multiple bottles cooked in the same room and producing hundreds of grams of
methamphetamine without a significant break in production could result in only one
conviction of manufacturing. Alternatively, it is just as reasonable a reading of the
statute and case law that each time an additional amount of catalyst is introduced
into the chemical solution the bottle starts a new chemical reaction and is an
individual, though small, manufacture of methamphetamine which could reasonably
result in the conviction of multiple counts from a single one-pot cook.
First-time offenders face a minimum presumptive sentence of 58 to 82 months
for each offense of manufacturing methamphetamine, thus it is of great importance
to the public that statutes such as N.C.G.S. § 90-87(15) are well-defined. The current
statute and case law, even after today’s decision, leave open to interpretation what
constitutes one continuing offense of manufacture versus several separate instances.
I concur in today’s result, but believe it is extremely important for this matter
to be addressed for future decisions and to ensure the equal application of our statutes
across the state. However, as an error-correcting court, we do not have the power to
address policy concerns that may exist for various conflicting factual situations. This
matter should be readdressed by the General Assembly or our Supreme Court.
2