State v. Childers

• Decision Date: 19 June 1979
• Docket Number: No. 7927SC161,7927SC161
• Citation: 41 N.C.App. 729,255 S.E.2d 654
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Helen CHILDERS.

Page 654

255 S.E.2d 654

41 N.C.App. 729

STATE of North Carolina v. Helen CHILDERS.

No. 7927SC161.

Court of Appeals of North Carolina.

June 19, 1979.

Roberts & Planer by Geoffrey A. Planer and Alan R. Krusch, Mount Holly, for defendant.

ROBERT M. MARTIN, Judge.

Defendant first assigns as error the failure of the trial court to instruct the jury that defendant could not be found guilty of manufacturing marijuana if it were found that she was growing the plants for her personal use. She contends that in order for her to be found guilty of the offense of manufacturing marijuana, it must be proved beyond a reasonable doubt by the State that she was manufacturing it with intent to distribute, citing State v. Baxter 21 N.C.App. 81, 203 S.E.2d 93 (1974) and State v. Whitted, 21 N.C.App. 649, 205 S.E.2d 611, Cert. denied 285 N.C. 669, 207 S.E.2d 761 (1974).

N.C.Gen.Stats. § 90-95(a) provides that "it is unlawful for any person: (1) To manufacture . . . a controlled substance." Marijuana is a controlled substance under Schedule VI of the North Carolina Controlled Substances Act, pursuant to the provisions of N.C.Gen.Stats. § 90-94. N.C.Gen.Stats. § 90-87(15) defines "manufacture" as:

. . . the production, preparation, propagation, compounding, conversion, or processing of a controlled substance by any means, whether directly or indirectly, artificially or naturally, or by extraction from substances of a natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis; and "manufacture" further includes any packaging or repackaging of the substance or labeling or relabeling of its container except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use . . .

N.C.Gen.Stats. § 90-87(24) defines "production" as including "the manufacture, planting, cultivation, growing, or harvesting of a controlled substance." "Preparation" is defined by Webster's Third New International Dictionary as being "the action or process of making something ready for use or service." The same source provides, in addition, definitions as stated for the following terms: (1) propagation: causing to continue or increase by natural reproduction; (2) compounding: the putting together of elements, ingredients or parts to form a whole; (3) conversion: changing (of a substance) from one form, state or character into another; (4) processing: to subject (something) to a particular method, system or technique of preparation, handling or other treatment designed to effect a particular result.

N.C.Gen.Stats. § 90-87(15), in defining the term "manufacture" used six specific terms to illustrate what activity was being proscribed. It excepts "preparation or compounding of a controlled substance by an individual for his own use." Defendant argues that, because these two activities are excepted, any manufacture of a controlled substance for personal use would not be "manufacturing" within the contemplation of the statute. With this contention we cannot agree. The plain meaning of the exception is to avoid making an individual liable for the felony of manufacturing controlled substance in the situation where, being already in possession of a controlled substance, he makes it ready for use (I. e., rolling marijuana into cigarettes for smoking) or combines it with other ingredients for use (I. e., making the so-called "Alice B. Toklas" brownies containing marijuana). The four activities not excepted by this proviso contemplate a significantly higher degree of activity involving the controlled substance (I. e., planting, growing, cultivating or harvesting a controlled substance or creating it by any synthetic process or mixture of processes, or taking a controlled substance and, by any process or conversion, changing the form of the controlled substance or concentrating it) and thus are more appropriately made felonies without regard to the intent of the person charged with the offense as to whether the controlled substance so "manufactured" was for personal use or for distribution. The burden will, of course, be upon the State to prove from the evidence beyond a reasonable doubt that, in cases where the defendant is charged with manufacture of a controlled substance and the activity constituting manufacture is preparation or compounding, that the defendant intended to distribute the controlled substance. In proving such intent, the State would be able to rely upon ordinary circumstantial evidence (E. g., the amount of the controlled substance possessed, the nature of its packaging, labeling and storage, if any, the activities of the defendant with reference to the controlled substance) as evidence pertinent to intent, but no presumptions presently apply to aid the State in making its case on this element. In those cases where production, propagation, conversion or processing of a controlled substance are involved, the intent of the defendant, either to distribute or consume personally, will be irrelevant and does not form an element of the offense.

We are not unaware of the prior holding of this Court in State v. Baxter, 21 N.C.App. 81, 203 S.E.2d 93 (1974) and State v. Whitted, 21 N.C.App. 649, 205 S.E.2d 611 (1974), Cert. denied 285 N.C. 669, 207 S.E.2d 761 (1974). We would initially note that these cases, holding that the offense of manufacturing a controlled substance can mean only manufacture with intent to distribute, are factually distinguishable from the case Sub judice. We next note that this Court, in the cases of State v. Elam, 19 N.C.App. 451, 199 S.E.2d 45, Cert. denied 284 N.C. 256, 200 S.E.2d 656 (1973), and State v. Wiggins, 33 N.C.App. 291, 235 S.E.2d 265, Cert. denied 293 N.C. 592, 241 S.E.2d 513 (1977) (...