State v. Miller

• Decision Date: 15 March 2016
• Docket Number: No. COA15–636.,COA15–636.
• Citation: 783 S.E.2d 512,246 N.C.App. 330
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Austin Lynn MILLER.

246 N.C.App. 330

783 S.E.2d 512

STATE of North Carolina

v.Austin Lynn MILLER.

No. COA15–636.

Court of Appeals of North Carolina.

March 15, 2016.

Attorney General, Roy Cooper, by Assistant Attorney General, Jill F. Cramer, for the State.

Jeffery William Gillette, for Defendant.

STEPHENS, Judge.

The sole issue presented by this appeal is one of first impression: whether Defendant Austin Lynn Miller's conviction under subsection 90–95(d1) (1)(c) of our North Carolina General Statutes, which makes possession of a product containing pseudoephedrine by any person previously convicted of possessing methamphetamine a class H felony, violated his due process rights. For the reasons which follow, we hold that Miller's due process rights under the United States Constitution were violated by his conviction of a strict liability offense criminalizing otherwise innocuous and lawful behavior without providing him notice that a previously lawful act had been transformed into a felony for the subset of convicted felons to which he belonged.

Factual and Procedural History

Like the legislative branches of many other states across the nation, our General Assembly has passed various laws over the past three decades seeking to combat the scourge of methamphetamine abuse. Each of the provisions discussed herein falls under Article 5, Chapter 90 of our General Statutes: the North Carolina Controlled Substances Act ("the CSA"). Pertinent to this case, effective 1 January 2012, section 90–113.52A of the CSA ("the record-keeping statute") mandated electronic record keeping by retail stores that sell products containing pseudoephedrine, an essential ingredient in the manufacture of methamphetamine. Subsection (a) of the record-keeping statute provides that "[a] retailer shall, before completing a sale of a product containing a pseudoephedrine product, electronically submit the required information to the National Precursor Log Exchange (NPLEx) administered by the National Association of Drug Diversion Investigators (NADDI)[.]" N.C. Gen.Stat. § 90–113.52A(a) (2013). In turn, subsection (c) of the record-keeping statute specifies that "NADDI shall forward North Carolina transaction records in NPLEx to the State Bureau of Investigation weekly and provide real-time access to NPLEx information through the NPLEx online portal to law enforcement in the State...." N.C. Gen.Stat. § 90–113.52A(c). Finally, the General Assembly mandated that the record-keeping "system shall be capable of generating a stop sale alert, which shall be a notification that completion of the sale would result in the seller or purchaser violating the quantity limits set forth in [section] 90–113.52."¹ N.C. Gen.Stat. § 90–113.52A(d).

Prior to 1 December 2013, section 90–95, which proscribes violations and penalties under the CSA, made it "unlawful for any person to ... [p]ossess an immediate precursor chemical with intent to manufacture a controlled substance ... [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 a controlled substance. " N.C. Gen.Stat. § 90–95(d1)(1)(a) – (b) (2011) (emphasis added). Thus, before 1 December 2013, the purchase and possession of pseudoephedrine products was legal for all citizens, even those with prior methamphetamine convictions, unless the products were possessed with the knowledge or intent that they be used to manufacture methamphetamine. Effective 1 December 2013, section 90–95(d1)(1) was amended to add subsection (c) ("the new subsection"), making it "unlawful for any person to ... [p]ossess a pseudoephedrine product if the person has a prior conviction for the possession or manufacture of methamphetamine." N.C. Gen.Stat. § 90–95(d1)(1)(c) (2013). Violation of this provision is a Class H felony. Id.

On Monday, 7 January 2014, Detective John Hollar of the Watauga County Sheriff's Office ("WCSO") reviewed the weekend's NPLEx logs and saw that Miller, a former methamphetamine offender,² had purchased one 3.6 gram box of allergy and congestion relief medicine, a pseudoephedrine product, from the Boone Walmart. As noted supra, Miller's purchase and possession of this product in this amount had been entirely lawful up until the new subsection went into effect the previous month. Hollar went to the Walmart to investigate Miller's purchase where he learned that the store's video surveillance system had not been working over the weekend. However, Hollar did obtain a copy of a Walmart receipt that appeared to contain Miller's electronic signature and indicated that Miller purchased a pseudoephedrine product on Saturday afternoon.

On 23 January 2014, Hollar obtained an arrest warrant for Miller which he served on Miller at his probation officer's office the following day. On 4 August 2014, Miller was indicted under the new subsection for possessing a pseudoephedrine product having been previously convicted of methamphetamine possession. On 4 February 2015, Miller filed a motion to declare the new subsection unconstitutional as applied to him, citing Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957).

The matter came on for trial at the 2 February 2015 criminal session of Watauga County Superior Court, the Honorable Eric C. Morgan, Judge presiding. During a pretrial motion hearing, Miller argued that the new subsection is unconstitutional because it lacks any element of scienter or intent and the State failed to provide him any notice of the statute and its implications. In response, the State contended that no intent element was necessary because of the extreme danger to the public posed by methamphetamine labs. The State compared the new subsection to laws prohibiting the possession of a firearm by a convicted felon, which the State contended have been upheld as constitutional despite the lack of any intent element or notice provision. After hearing arguments of counsel, the trial court denied Miller's motion to declare the new subsection unconstitutional, stating:

All right, in this matter, coming on to be heard, and being heard, on the defendant's motion to declare [ section] 90–95(d1)(1)(c) unconstitutional. The [c]ourt having considered the arguments of counsel, having reviewed the authorities cited by counsel together with the pleadings filed in this action, and the [c]ourt having considered the [S]tate's argument of statute, [ section] 90–95(d1)(1)(c) is analogous to North Carolina['s] possession of firearm by felon statute found in [section] 14–415.1. And the [c]ourt noting that the possession of firearm by felon statute has been upheld by North Carolina courts as constitutional in the cases of [ ] State [v.] Tanner, 39 N.C.App. 668 [251 S.E.2d 705 (1979) ]; State [v.] Cooper, 364 N.C. 404 ; and State [v.] Coltrane, 188 N.C.App. 498 , among other cases.

Further, the Court having reviewed [section] 90–95(d1)(1)(c), in the exercise of its discretion, denies [sic] to declare N.C. Gen.Stat. [§ ] 90–95(d1)(1)(c) unconstitutional.

At trial, the State offered testimony, inter alia, from Hollar about his investigation, as described supra, and from the Walmart pharmacy manager about the system for tracking the sale of pseudoephedrine products. At the close of the State's evidence, Miller moved to dismiss,

based on the testimony of the witnesses that have been presented by the [S]tate. Chiefly, the pharmacy manager and the lack of knowledge that she presented regarding how this data is entered, how it could, or could not be, manipulated by a pharmacy worker, and just, I don't believe that the [S]tate has presented enough evidence that a jury could reasonably find Mr. Miller guilty of this, of the crime as charged. I will also note that there is a defect in the indictment. I will argue that it is a fatal defect.

The trial court denied the motion to dismiss, and Miller offered no evidence. During the charge conference, Miller requested a jury instruction on specific intent, and the court agreed to give North Carolina Pattern Jury Instruction 120.10, informing the jury that intent "must ordinarily be proved by circumstances from which it may be inferred." However, the court did not instruct the jury that the offense with which Miller was charged required the State to prove any element of intent. The jury returned a verdict of guilty, and the trial court imposed a sentence of 6 to 17 months, suspended the sentence, and placed Miller on supervised probation for 24 months.

Miller's Petition for Writ of Certiorari

During his sentencing hearing, Miller indicated that he intended to appeal his conviction. The parties then discussed an appeal bond, and the court entered judgment on Miller's conviction. Following the imposition of judgment, the trial court asked Miller if he wanted an appointed attorney for his appeal and he responded in the affirmative. As Miller concedes in his petition for writ of certiorari, however, he failed to enter proper notice of appeal following entry of judgment. Rule 4 of the Rules of Appellate Procedure provides that notice of appeal in criminal actions can be taken by "(1) giving oral notice of appeal at trial, or (2) filing notice of appeal with the clerk of superior court and serving copies thereof upon all adverse parties within fourteen days after entry of the judgment...." N.C.R.App. P. 4(a). Oral notice of appeal must be given after the entry of judgment. See N.C. Gen.Stat. § 15A–1444(a) (2015) ("A defendant who has entered a plea of not guilty to a criminal charge, and who has been found guilty of a crime, is entitled to appeal as a matter of right when final judgment has been entered. " (emphasis added)).

Recognizing his failure to give timely notice of appeal, on 5 June 2015, Miller filed in this Court a petition for writ of certiorari asking that we exercise our discretion to address the merits of his argument. See, e.g.,

State v. McCoy, 171 N.C.App. 636, 638, 615 S.E.2d 319, 320...