Appeal by defendant from judgment entered 17 May 2007 by Judge
Kenneth F. Crow in Onslow County Superior Court. Heard in the
Court of Appeals 30 October 2008.
Attorney General Roy Cooper, by Special Deputy Attorney
General Philip A. Telfer, for the State.
Glover & Petersen, P.A., by James R. Glover and Ann B.
Petersen, for defendant-appellant.
Charles James Conway (defendant) appeals judgments entered
after a jury found him to be guilty of: (1) three counts of
possession of an immediate precursor with the intent to manufacture
methamphetamine; (2) felonious maintaining and keeping a dwelling
for a controlled substance; (3) manufacturing methamphetamine; (4)
trafficking by possession of 400 grams or more of methamphetamine;
and (5) trafficking by manufacture of 400 grams or more of
methamphetamine. We find no error in part, reverse in part, and
remand for resentencing.
On 1 April 2006, Probation Officer Clay Taylor (Taylor)
visited the residence of defendant and Christine Clark (Clark)located at 327 Queen's Road, Hubert, North Carolina. Clark had
previously been convicted of obtaining property by false pretenses
and was placed on supervised probation. After repeated positive
drug tests for methamphetamine, Clark was placed on electronic
house arrest. Clark had violated the terms of her house arrest by
leaving her residence without prior authorization earlier that day.
As Taylor approached the front door, he detected a very
strong chemical smell. Through the window, Taylor observed Clark
as she placed two Mason jars filled with a liquid substance behind
a makeshift bar separating the kitchen and living room. Taylor
entered the residence, detected an even stronger chemical smell,
and his eyes began to burn and tear up.
Defendant was located in a bedroom on the right side of the
residence with the door shut. Taylor exited the residence and
called Onslow County Sheriff's Detective Robert Ides (Detective
Ides) of the narcotics unit to inform him that a possible meth
lab was located within the residence. Taylor re-entered the
residence to arrest Clark for her probation violation. Defendant
informed Taylor that he was leaving and fled the residence.
Once Detective Ides arrived at the residence, he and Taylor
conducted a walk-through. Based on his observations, Detective
Ides also suspected that a meth lab was present within the
residence. Detective Ides called State Bureau of Investigation
(SBI) Agent Steven Zawistowski (Agent Zawistowski) to evaluate
the residence and determine whether it was necessary for the
special response team to be brought to investigate and clean upthe location. Agent Zawistowski arrived on the scene, determined
that a meth lab was being operated at the residence. Detective
Ides and Agent Zawistowski subsequently obtained and executed a
search warrant for the residence.
The following day, the SBI's special response team arrived at
the scene. Lisa Edwards (Edwards), a forensic chemist,
documented the relevant items found within the residence and
gathered samples for SBI lab analysis. Edwards retrieved samples
from three glass jars containing a bi-layered liquid. Testing
showed each glass jar contained a detectable amount of
methamphetamine. The total weight of the liquids in the three jars
equaled approximately 530 grams. The exact quantity of
methamphetamine located within the liquid was not determined.
The State allowed Clark to plead guilty to one count of
Trafficking in Methamphetamine Level I and imposed a sentence of
a minimum of seventy months to a maximum of eighty-four months
active imprisonment. In exchange for the plea bargain, Clark
agreed to provide truthful testimony against defendant.
At defendant's trial, Clark testified that she and defendant
had conversations about making methamphetamine. Clark also
testified to defendant's involvement in the production of
methamphetamine. Clark admitted she was addicted to
methamphetamine and found it difficult to remember events clearly.
Clark testified that defendant purchased Actifed., a product
containing pseudoephedrine, and placed the pills in a 20-ounce soda
bottle to sit for awhile. Defendant poured the dried contentsout of the bottle into a glass bowl and scrape[d] it out. This
process was repeated over the course of an afternoon. Clark
further testified that she and defendant had daily visitors at
their residence, who would assist in helping to make the
Defendant did not testify on his own behalf, call other
witnesses, or present any evidence to the trial court. The jury
found defendant to be guilty of all charges. The trial court
sentenced defendant to consecutive terms of a minimum of sixteen
and a maximum of twenty months imprisonment for each of his three
possession of an immediate precursor with the intent to manufacture
methamphetamine convictions. The trial court consolidated
defendant's manufacturing methamphetamine and maintaining a
dwelling convictions into one judgment and imposed a consecutive
sentence of a minimum of seventy-three months and a maximum of
ninety-seven months imprisonment. The trial also consolidated both
of defendant's trafficking in methamphetamine convictions and
imposed a concurrent sentence of a minimum of 225 months and a
maximum of 279 months imprisonment. Defendant appeals.
Defendant argues the trial court erred by: (1) denying his
motion to dismiss the charges of manufacturing methamphetamine and
trafficking in methamphetamine by manufacture and (2) denying his
motion to dismiss the charges of trafficking in 400 grams or more
III. Motions to Dismiss
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 motion to
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 citations and quotations omitted).
B. Manufacturing Methamphetamine
Defendant argues the trial court erred by denying defendant's
motion to dismiss the charge of manufacturing methamphetamine. We
Manufacture is statutorily defined 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 . . . .
N.C. Gen. Stat. § 90-87(15) (2007) (emphasis supplied). This Court
has previously addressed this manufacturing statute in the context
of a motion to dismiss a charge of possession with intent to
manufacture, sell, and deliver methamphetamine. State v. Alderson,173 N.C. App. 344, 348, 618 S.E.2d 844, 847 (2005). However, the
facts and holding of Alderson are not particularly instructive
because this Court's analysis focused on the circumstances
sufficient to establish the intent to sell or deliver. Id. Here,
our analysis is focused upon whether defendant's actions were
sufficient to constitute manufacturing as defined in the statute.
Defendant argues that to be charged and convicted of
manufacturing methamphetamine, the State must show he participated
in every step of the production process. This contention is
without merit. N.C. Gen. Stat. § 90-87(15) clearly states that
manufacturing includes the production, preparation, propagation,
compounding, conversion, or processing of a controlled substance by
any means . . . . (Emphasis supplied). This Court has stated,
[w]here a statute contains two clauses which prescribe its
applicability, and the clauses are connected by a disjunctive (e.g.
'or'), the application of the statute is not limited to cases
falling within both clauses, but will apply to cases falling within
either of them. Grassy Creek Neighborhood Alliance, Inc. v. City
of Winston-Salem, 142 N.C. App. 290, 296, 542 S.E.2d 296, 300
(2001) (citation and quotation omitted).
The State's evidence at trial tended to show that Clark and
defendant had conversations about making methamphetamine. Clark
also testified that defendant was involved in the process of
methamphetamine production. Defendant purchased a product
containing pseudoephedrine, placed the pills in a 20-ounce soda
bottle, and conducted a pill wash. Defendant then dried thecontents of the bottle and scrape[d] . . . out the remnants.
This process was repeated over the course of an afternoon. A
search of the inside and outside of defendant's residence revealed
the presence of precursor chemicals and other products used in the
production of methamphetamine. We note defendant did not appeal
his convictions for these separate, but related crimes.
Viewed in the light most favorable to the State, sufficient
evidence was presented tending to show defendant manufactured
methamphetamine as defined by N.C. Gen. Stat. § 90-87(15). Wood,
174 N.C. App. at 795, 622 S.E.2d at 123. The trial court properly
denied defendant's motion to dismiss the charge of manufacturing
methamphetamine. This assignment of error is overruled.
C. Trafficking in Methamphetamine
Defendant argues the trial court erred by denying his motion
to dismiss the charges of trafficking in 400 grams or more of
methamphetamine when the State's evidence failed to show more than
a detectable amount of methamphetamine was found in 530 grams of
a liquid mixture. We agree.
The determinative question before us is whether the entire
weight of a liquid containing a detectable, but undetermined,
amount of methamphetamine establishes a violation of N.C. Gen.
Stat. § 90-95(h)(3b). The North Carolina trafficking statute
provides, in relevant part:
Any person who sells, manufactures, delivers,
transports, or possesses 28 grams or more of
methamphetamine or amphetamine shall be guilty
of a felony which felony known as trafficking
in methamphetamine or amphetamine and if thequantity of such substance or mixture
. . . .
c. Is 400 grams or more, such person shall be
punished as a Class C felon and shall be
sentenced to a minimum term of 225 months and
a maximum term of 279 months in the State's
prison and shall be fined at least two hundred
fifty thousand dollars ($250,000).
N.C. Gen. Stat. § 90-95(h)(3b)c (2007). The preceding statute is
silent on whether the weight of a liquid mixture containing, but
undetermined, amounts of methamphetamine is sufficient to meet the
requirements set forth within the statute to constitute
trafficking. This appears to be an issue of first impression in
North Carolina and requires us to engage in statutory construction.
See State v. Jones, 358 N.C. 473, 477, 598 S.E.2d 125, 128 (2004)
([W]here a statute is ambiguous, judicial construction must be
used to ascertain the legislative will. (Citation and quotation
i. Rules of Statutory Construction
The rules concerning statutory construction are well
established: [t]he cardinal principle of statutory construction
is to discern the intent of the legislature. In discerning the
intent of the General Assembly, statutes in pari materia should be
construed together and harmonized whenever possible. State v.
Jones, 359 N.C. 832, 835_36, 616 S.E.2d 496, 498 (2005) (internal
citations omitted). Portions of the same statute dealing with the
same subject matter are to be considered and interpreted as a
whole, and in such case it is the accepted principle of statutoryconstruction that every part of the law shall be given effect if
this can be done by any fair and reasonable intendment . . . .
State v. Hollars, 176 N.C. App. 571, 573, 626 S.E.2d 850, 852
(2006) (citation and quotation omitted).
Words and phrases of a statute 'must be construed as a part
of the composite whole and accorded only that meaning which other
modifying provisions and the clear intent and purpose of the act
will permit.' Id. at 574, 626 S.E.2d at 853 (quoting Underwood v.
Howland, 274 N.C. 473, 479, 164 S.E.2d 2, 7 (1968)). When
construing an ambiguous criminal statute, we must apply the rule of
lenity, which requires us to strictly construe the statute in favor
of the defendant. State v. Hinton, 361 N.C. 207, 211, 639 S.E.2d
437, 440 (2007) (citation and quotation omitted). However, this
[rule] does not require that words be given their narrowest or most
strained possible meaning. A criminal statute is still construed
utilizing 'common sense' and legislative intent. State v. Beck,
359 N.C. 611, 614, 614 S.E.2d 274, 277 (2005) (citations omitted).
ii. Legislative History
Article 5 of Chapter 90, the North Carolina Controlled
Substances Act, was amended in 1979 to include N.C. Gen. Stat. §
90-95(h), which added penalties for trafficking in certain types
of controlled substances. State v. Tyndall, 55 N.C. App. 57, 59,
284 S.E.2d 575, 576 (1981). The legislative history of N.C. Gen.
Stat. § 90-95 shows section (h) was added in response to a growing
concern regarding the gravity of illegal drug activity in North
Carolina and the need for effective laws to deter the corruptinginfluence of drug dealers and traffickers. State v. Proctor, 58
N.C. App. 631, 635, 294 S.E.2d 240, 243 (1982) (citation and
Section (h) of N.C. Gen. Stat. § 90-95 contains seven
subdivisions each of which define the required elements of
trafficking in: (1) marijuana; (2) methaqualone; (3) cocaine; (4)
methamphetamine; (5) opium or opiate; (6) Lysergic Acid
Diethylamide (LSD); and (7) MDA/MDMA. See N.C. Gen. Stat. § 90-
95(h)(1)_(4). Each subsection establishes the quantity of the
controlled substance, which must be proven by the State, in
conjunction with the escalating mandatory minimum and maximum terms
of imprisonment to be imposed as the quantity of the controlled
substance increases. N.C. Gen. Stat. § 90-95(h)(1)_(4).
When defining the quantity of the controlled substance that is
sufficient to establish trafficking in methaqualone, cocaine,
heroin, LSD, and MDA/MDMA, the General Assembly specifically
employed the coordinating and disjunctive clause: or any mixture
containing such substance. See N.C. Gen. Stat. § 90-95(h)(2),
(3), (4), (4a), and (4b) (emphasis supplied). This coordinating
and disjunctive clause is conspicuously absent from the trafficking
in methamphetamine statute. N.C. Gen. Stat. § 90-95(h)(3b).
iii. Applicable Case Law
This Court has addressed whether the trafficking statute
envisioned the use of the total weight of a mixture containing
some amount of a controlled substance to establish the minimum
quantity required to convict a defendant of trafficking. See Statev. McCracken, 157 N.C. App. 524, 526_28, 579 S.E.2d 492, 494_95
(2003); State v. Jones, 85 N.C. App. 56, 68, 354 S.E.2d 251, 258
(1987); Tyndall, 55 N.C. App. at 60, 284 S.E.2d at 576_77.
In Tyndall, at issue was the construction of the trafficking
in cocaine statute, N.C. Gen. Stat. § 90-95(h)(3)(a). 55 N.C. App.
at 59, 284 S.E.2d at 576. The defendant asserted that the
provision [did] not prohibit the sale of a mixture unless that
mixture contain[ed] 28 grams of cocaine. Id. This Court
disagreed and stated that it appeared from the General Assembly's
usage of the language, if the quantity of such substances or
mixture involved is 28 grams or more . . ., such person shall be
punished by imprisonment[,] the quantity of the mixture containing
cocaine was sufficient in itself to constitute a violation of N.C.
Gen. Stat. § 90-95(h)(3)(a). Id. at 60, 284 S.E.2d at 577
(emphasis original). This Court also noted the purpose behind the
trafficking statute and stated:
Our legislature has determined that certain
amounts of controlled substances and certain
amounts of mixtures containing controlled
substances indicate an intent to distribute on
a large scale. Large scale distribution
increases the number of people potentially
harmed by the use of drugs. The penalties for
sales of such amounts, therefore, are harsher
than those under G.S. 90-95(a)(1).
Id. at 60_61, 284 S.E.2d at 577.
In State v. Perry, the defendant challenged the
constitutionality of the trafficking in heroin statute and argued:
that the scheme of punishment provided for in
this statute is irrational and violative of
the equal protection and due process clauses
of the United States Constitution because thescheme would punish more severely the
possession of a small amount of heroin when
mixed with a large amount of legal materials
than for a smaller amount of pure heroin.
316 N.C. 87, 101, 340 S.E.2d 450, 459 (1986). Our Supreme Court
rejected the defendant's contention based upon the purpose of the
statute and stated the imposition of harsher penalties for the
possession of a mixture of controlled substances with a larger
mixture of lawful materials has a rational relation to a valid
State objective, that is, the deterrence of large scale
distribution of drugs. Id. at 101_02, 340 S.E.2d at 459
In State v. Jones, this Court addressed the construction of
the trafficking in opiates or heroin statute, N.C. Gen. Stat. § 90-
95(h)(4). 85 N.C. App. 56, 354 S.E.2d 251 (1987). Following the
reasoning in Tyndall, this Court stated [c]learly, the
legislature's use of the word 'mixture' establishes that the total
weight of the dosage units . . . is [a] sufficient basis to charge
a suspect with trafficking. Id. at 68, 354 S.E.2d at 258.
Additionally, this Court noted that this interpretation had been
held to be constitutional under Article I . 19 of the North
Carolina Constitution and the due process and equal protection
clauses of the United States Constitution. Id.
These precedents clearly establish that if the General
Assembly had chosen to define the quantity of methamphetamine
needed to constitute trafficking as 28 grams or more and added, as
it did in other subsections of the trafficking statute, the
disjunctive clause or any mixture containing such substance, thetotal weight of the liquid found with detectable amounts of
methamphetamine would be sufficient to establish a violation of
N.C. Gen. Stat. § 90-95(h)(3b)c. However, the General Assembly
chose not to use or include that operative language in the
trafficking in methamphetamine statute. See N.C. Gen. Stat. § 90-
95(h)(3b) (Any person who sells, manufactures, delivers,
transports, or possesses 28 grams or more of methamphetamine or
amphetamine shall be guilty of a felony which felony shall be known
as 'trafficking in methamphetamine or amphetamine' . . . .).
iv. Statutory Analysis
The State argues the trafficking statute must be read in pari
materia with N.C. Gen. Stat. § 90-90(3), which classifies
methamphetamine as a Schedule II controlled substance and
delineates what is included in that term. N.C. Gen. Stat. § 90-
90(3) (2007) states:
The following controlled substances are
included in this schedule:
. . . .
(3) Any material, compound, mixture, or
preparation which contains any quantity of the
following substances having a potential for
abuse associated with a stimulant effect on
the central nervous system unless specifically
exempted or listed in another schedule:
. . . .
c. Methamphetamine, including its salts,
isomers, and salts of isomers.
The State argues that [b]y definition . . . the controlled
substance 'methamphetamine' includes any mixture that contains any
quantity of the drug. We disagree. In State v. Proctor, the defendant was charged with
trafficking in cocaine pursuant to N.C. Gen. Stat. § 90-95(h)(3).
58 N.C. App. at 633, 294 S.E.2d at 242. The defendant filed a
motion for a bill of particulars requesting the State specifically
identify the controlled substance at issue. Id. The State
complied and stated the substance was 'cocaine which is a
derivative of coca leaves.' Id. The defendant subsequently filed
a motion to dismiss on the grounds that a derivative of coca
leaves was not included in the language of N.C. Gen. Stat. § 90-
This Court duly noted that N.C. Gen. Stat. § 90-95(h)(3)
omitted certain language included in the definition of cocaine
contained in N.C. Gen. Stat. § 90-90(a)4, part of the schedule for
controlled substances. Id. at 634, 294 S.E.2d at 242. N.C. Gen.
Stat. § 90-90(a)4 is now codified as N.C. Gen. Stat. § 90-90(1)d.
N.C. Gen. Stat. § 90-90(a)4 included in its definition: (1) coca
leaves; (2) any salts, compound, derivative or preparation of coca
leaves; and (3) any salts, compound, derivative or preparation
thereof which is chemically equivalent or identical with any of
these substances . . . . Id. At the time the defendant was
charged, the trafficking in cocaine statute omitted the second
group contained in N.C. Gen. Stat. § 90-90(a)4. Id. This omission
created uncertainty regarding what was included in the trafficking
in cocaine statute. Id. This Court held that the full definition
of cocaine in G.S. 90-90(a)4 may be read into the trafficking in
cocaine provisions of G.S. 90-95(h)(3) and further stated: [T]he purpose of G.S. 90-95(h)(3) would not be
served _ indeed, it would be thwarted _ by a
more restrictive definition of cocaine than
that in G.S. 90-90(a)4. Under these
circumstances, we believe that the purpose of
the trafficking statute must be given effect
even if the strict letter thereof must be
disregarded in order to do so. The schedules
of controlled substances set forth in G.S. 90-
89 through 90-94 and all the subsections of
G.S. 90-95 deal with the same subject matter,
violations of the Controlled Substances Act.
Statutes dealing with the same subject matter
are to be construed in pari materia.
Id. at 635, 294 S.E.2d at 243 (citations omitted). However, this
Court carefully limited its holding to th[o]se circumstances and
articulated the reasoning behind its decision. Id. This Court
stated, [i]t is apparent to us that the omission of the second
group listed in G.S. 90-90(a)4 from the language of G.S. 90-
95(h)(3) was not a deliberate choice by the legislature since it
results in an incomplete and confusing definition for the crime of
trafficking in cocaine. Id. at 634, 294 S.E.2d at 242. N.C. Gen.
Stat. § 90-95(h)(3) has since been amended to include any salt,
isomer, salts of isomers, compound, derivative, or preparation of
The statutes before us are distinguishable from the statutes
at issue in Proctor. In that case, N.C. Gen. Stat. §. 90-90(a)4
and -90(h)(3) contained virtually the same language. The omission
of the second group from the trafficking in cocaine statute
appeared to be no more than a clerical error by the General
Assembly. Here, although N.C. Gen. Stat. § 90-90(3) defines
methamphetamine for purposes of the schedule for controlled
substances, the General Assembly chose not to use and specificallyexcluded that particular language in the trafficking in
methamphetamine statute. See N.C. Gen. Stat. §. 90-90(3), -
95(h)(3b). We find it significant that N.C. Gen. Stat. §. 90-89(3)
and (4) and -90(1) define methaqualone, cocaine, heroin, LSD, and
MDA/MDMA as any mixture containing that substance, for purposes
of the schedule for controlled substances, yet the General Assembly
still chose to include the coordinating and disjunctive clause or
any mixture containing such substance in the definition of
trafficking for all of these particular drugs. Reading North
Carolina's trafficking statute as a whole, and in pari materia, a
notable difference exists between the portion of the statute
defining the quantity required to establish trafficking in
methaqualone, cocaine, heroin, LSD, and MDA/MDMA and the portion of
the statute defining the quantity required to establish trafficking
The omission or exclusion of the coordinating and disjunctive
clause or any mixture containing such substance in N.C. Gen.
Stat. § 90-95(h)(3b) indicates the General Assembly did not
envision the use of the total weight of a mixture containing a
detectable, but undetermined, amount of methamphetamine to
establish the quantity required to convict a defendant of
trafficking. See Evans v. Diaz, 333 N.C. 774, 779_80, 430 S.E.2d
244, 247 (1993) (Under the doctrine of expressio unius est
exclusio alterius, when a statute lists the situations to which it
applies, it implies the exclusion of situations not contained in
the list. (Citation omitted)). Here, the State confiscated 530 grams of liquid in three Mason
jars, which contained detectable amounts of methamphetamine from
defendant's residence. The exact amount of methamphetamine located
within the liquid was never determined. This toxic liquid was a
step in the process of manufacturing and could not be ingested,
used, or consumed as methamphetamine.
Because the State failed to show defendant possessed 28 grams
or more of methamphetamine, as required by the trafficking statute,
the trial court erred by denying defendant's motion to dismiss both
of his trafficking in methamphetamine charges. Wood, 174 N.C. App.
at 795, 622 S.E.2d at 123. The trial court's order denying
defendant's motion to dismiss his two trafficking in
methamphetamine charges was error and the judgment entered upon the
jury's verdicts are reversed. This case is remanded to the trial
court for resentencing in light of our holding.
Viewed in the light most favorable to the State, sufficient
evidence was presented at trial tending to show defendant
manufactured methamphetamine as defined by N.C. Gen. Stat. § 90-
87(15). The trial court properly denied defendant's motion to
dismiss the charge of manufacturing methamphetamine.
The General Assembly's deliberate choice to include the
coordinating and disjunctive clause or any mixture containing such
substance in the definition of trafficking in methaqualone,
cocaine, heroin, LSD, and MDA/MDMA and the exclusion or omission of
this clause in the definition of trafficking in methamphetamine,together with the well-established rules of statutory construction,
requires the reversal of defendant's trafficking convictions. The
General Assembly did not intend for the total weight of a mixture
containing a detectable, but undetermined, amount of
methamphetamine to be used to establish and escalate the quantity
necessary to charge defendant with trafficking. Because the State
failed to show defendant possessed 28 grams or more of
methamphetamine, the trial court erred by denying defendant's
motion to dismiss both of his trafficking charges. Defendant's
trafficking convictions in judgment 06 CRS 052987 are reversed.
Defendant's remaining convictions are left undisturbed. This case
is remanded to the trial court for resentencing.
No error in part, Reversed in part, and Remanded.
Judges CALABRIA and STROUD concur.
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