State v. Oxendine

• Decision Date: 05 April 2016
• Docket Number: No. COA15–508.,COA15–508.
• Citation: 783 S.E.2d 286,246 N.C.App. 502
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Roger Christopher OXENDINE, Defendant.

246 N.C.App. 502

783 S.E.2d 286

STATE of North Carolina

v.Roger Christopher OXENDINE, Defendant.

No. COA15–508.

Court of Appeals of North Carolina.

April 5, 2016.

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 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.

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.

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, 235 N.C.App. 398, 400–01, 763 S.E.2d 1, 3 (2014) (quoting State v. Greer, 238 N.C. 325, 328, 77 S.E.2d 917, 920 (1953) ).

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."

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 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 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....