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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA07-517


Filed: 20 November 2007


v .                         Graham County
                            Nos. 05 CRS 50181 - 50182

    Appeal by defendant from judgments entered 14 March 2006 by Judge Zoro J. Guice, Jr., in Graham County Superior Court. Heard in the Court of Appeals 1 November 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Barbara A. Shaw, for the State.

    Irving Joyner, for defendant-appellant.

    TYSON, Judge.

    Teresa Gail Stewart (“defendant”) appeals from judgments entered after a jury found her to be guilty of trafficking in methamphetamine pursuant to N.C. Gen. Stat. § 90-95(h)(3B), possession with intent to manufacture, sell, or deliver a schedule II controlled substance, delivery of methamphetamine, and manufacture of methamphetamine pursuant to N.C. Gen. Stat. § 90-95(a)(1). We find no error in part, reverse in part, and remand for resentencing.

I. Background

    On 24 March 2005, defendant traveled to the Graham County Sheriff's Department to speak with Officer Greg Jones (“Officer Jones”) about an ongoing investigation and the return of a storagebuilding key. Defendant's fourteen-year-old son, B.S., and B.S.'s uncle, Reece Orr (“Orr”), accompanied her to the Sheriff's Department. Upon their arrival, Officer Jones asked Officer Matthew Phillips (“Officer Phillips”) to escort defendant to the jail so he could speak with her.
A. State's Evidence

    The State's evidence tended to show Officer Phillips saw defendant hand an object to Orr while Officer Phillips, defendant, B.S., and Orr were walking toward the jail. Officer Phillips restrained defendant and Orr. Orr passed the object to B.S. After B.S. received the object, defendant told him to “run.” B.S. took two steps, stopped, and handed a bag containing methamphetamine to Officer Phillips.
B. Defendant's Evidence

    Defendant testified B.S. had asked her for lunch money after she arrived at the jail. Defendant gave B.S. money and told Orr she was going to be questioned. When Orr learned defendant was going to be questioned, he tried to hand her something. Defendant shoved the item back to Orr and told Orr to “run.”
    After B.S. gave the bag of methamphetamine to Officer Phillips, Officer Jones arrested defendant. Defendant was indicted 5 December 2005 for “trafficking in amphetamine/meth,” possession with intent to manufacture, sell, and deliver methamphetamine, sale and delivery of methamphetamine, and the manufacture of methamphetamine. On 14 March 2006, a jury found defendant to be guilty of all charges. Defendant was sentenced to consecutivesentences of: (1) a minimum of seventy and a maximum of eighty- four months for trafficking in methamphetamine; (2) a minimum of ten and a maximum of twelve months for possession with intent to manufacture, sell, and deliver methamphetamine; (3) a minimum of ten and a maximum of twelve months for delivery of methamphetamine; and (4) a minimum of ten and a maximum of twelve months for manufacture of methamphetamine. Defendant appeals.
II. Issues

    Defendant argues the indictment for trafficking in amphetamine was fatally defective. Defendant also argues the trial court erred by not granting her motion to dismiss.
III. Trafficking in Amphetamine/Meth Indictment

    Defendant argues the indictment charging her with “traffick[ing] in amphetamine/meth” is fatally defective and violates N.C. Gen. Stat. § 15A-924. Defendant raises this issue for the first time on appeal. We disagree.
A. Standard of Review

    “A motion in arrest of judgment predicated upon some fatal error or defect appearing on the face of the record proper may be made at any time in any court having jurisdiction of the matter.” State v. Sellers, 273 N.C. 641, 645, 161 S.E.2d 15, 18 (1968).
        [T]he verdict of the jury is not vulnerable to a motion in arrest of judgment because of defects in the indictment, unless the indictment wholly fails to charge some offense cognizable at law or fails to state some essential and necessary element of the offense of which the defendant is found guilty.
State v. Gregory, 223 N.C. 415, 418, 27 S.E.2d 140, 142 (1943) (citation omitted).
B. Analysis

    N.C. Gen. Stat. § 90-95(h)(3B) (2005) states, “[a]ny person who sells, manufactures, delivers, transports, or possesses 28 grams or more of methamphetamine or amphetamine shall be guilty of a felony . . . .” (Emphasis supplied). The indictment states, “[t]he jurors for the State upon their oath present that on or about the date of the offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did possess more than 28 grams but less than 200 grams of methamphetamine.”
    The language of this indictment states all “essential and necessary element[s] of the offense of which . . . defendant [was] found guilty.” Gregory, 223 N.C. at 418, 27 S.E.2d at 142 (citation omitted). This assignment of error is overruled.
IV. Motion to Dismiss

    Defendant argues the trial court erred by denying her “motion to dismiss at the conclusion of the State's case and at the conclusion of all evidence on the ground that the State's evidence was insufficient to support the jury's guilty verdicts.”
A. Standard of Review

        The standard for ruling on a motion to dismiss is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense. Substantial evidence is relevant evidence which a reasonable mind might accept as adequate to support a conclusion. In ruling on a motionto dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.

State v. Wood, 174 N.C. App. 790, 795, 622 S.E.2d 120, 123 (2005) (internal quotations omitted).
B. Analysis

    Defendant argues the evidence presented, when viewed in the light most favorable to the State, does not establish every element of three of the charged offenses: (1) possession with intent to manufacture; (2) sell or deliver; (3) sale and delivery; and (4) manufacture of methamphetamine.
1. Possession with Intent to Manufacture, Sell or Deliver, and     
Sale and Delivery

    “The elements that the State must prove to establish possession of narcotics with the intent to sell or deliver are (1) defendant's possession of the drug, and (2) defendant's intention to sell or deliver the drug.” State v. Thorpe, 326 N.C. 451, 454, 390 S.E.2d 311, 313 (1990) (internal quotation omitted). “'Deliver' or 'delivery' means the actual[,] constructive, or attempted transfer from one person to another of a controlled substance . . . .” N.C. Gen. Stat. § 90-87(7) (2005).
    Officer Phillips's eyewitness testimony tends to show defendant possessed and handed the methamphetamine to Orr. This evidence tends to establish defendant possessed methamphetamine with the intent to deliver the drug and that defendant deliveredthe drug to Orr. This evidence was sufficient to overcome defendant's motions. The trial court did not err by denying defendant's motion to dismiss these charges. These assignments of error are overruled.
2. Manufacture of Methamphetamine

    “'Manufacture' . . . 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. Stat. § 90-87(15) (2005).
    Although the State offered evidence sufficient for the jury to find defendant possessed and delivered the methamphetamine, which had been broken down into smaller saleable units, no evidence was offered tending to show when the methamphetamine was packaged, by whom, or for what purpose. Viewed in the light most favorable to the State and all reasonable inferences to be drawn therefrom, insufficient evidence was presented to support the charge and verdict of manufacturing methamphetamine. The trial court erred by denying defendant's motion to dismiss this charge.
V. Conclusion

    The indictment charging defendant with “traffick[ing] in amphetamine/meth” contained all essential and necessary elements of the offense charged. The indictment is not fatally defective. The State presented sufficient evidence to support the charges and verdicts of possession with intent to manufacture, sell, or delivera schedule II controlled substance and delivery of methamphetamine. We find no error in these convictions.
    Insufficient evidence was presented to support the charge and verdict of manufacture of methamphetamine to overcome defendant's motion to dismiss. We reverse this conviction and remand for resentencing.
    No Error in Part, Reversed in Part, and Remanded for Resentencing.
    Judges JACKSON and STROUD concur.
    Report per Rule 30(e).

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