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.
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
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
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.
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)
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
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).
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.
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
No Error in Part, Reversed in Part, and Remanded for
Judges JACKSON and STROUD concur.
Report per Rule 30(e).
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