State v. Gibbs

• Court: Supreme Court of North Carolina
• Decided: June 16, 2023
• Docket: 402A21
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

No. 402A21

Filed 16 June 2023

STATE OF NORTH CAROLINA

v.

MONTEZ GIBBS

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 2021-NCCOA-607 (unpublished), reversing in part a judgment

entered on 24 September 2019 by Judge Joshua W. Willey Jr. in Superior Court, New

Hanover County. On 1 March 2023, the Supreme Court allowed the State’s petition

for writ of certiorari as to additional issues. Heard in the Supreme Court on 26 April

2023.

Joshua H. Stein, Attorney General, by Zachary K. Dunn, Assistant Attorney General, for the State-appellant.

Glenn Gerding, Appellate Defender, by Wyatt Orsbon, Assistant Appellate Defender, for defendant-appellee.

PER CURIAM.

Defendant Montez Gibbs was indicted on 14 January 2019 with one count each

of trafficking opiates by possession, possession with intent to sell or distribute a

Schedule II controlled substance, and possession of drug paraphernalia; and two

misdemeanor counts of resisting, delaying, or obstructing a public officer. The charges

arose out of an incident that occurred on 7 April 2018 when police officers observed STATE V. GIBBS

Opinion of the Court

Mr. Gibbs moving in between the buildings of the Hillcrest housing community in

Wilmington, North Carolina, and ultimately found a white powdery substance in a

backpack he was carrying. At the close of the evidence during the trial, the trial court

dismissed one misdemeanor count of resisting, delaying, or obstructing a public

officer. Mr. Gibbs was found guilty of the remaining charges. The trial court

consolidated the convictions for sentencing and sentenced Mr. Gibbs to an active term

of seventy to ninety-three months of imprisonment. He appealed to the Court of

Appeals.

In a divided, unpublished opinion, the Court of Appeals reversed the conviction

for trafficking by possession of an opiate on the grounds that the trial court abused

its discretion in ruling that the State’s expert was qualified to testify that fentanyl is

an opiate. State v. Gibbs, 2021-NCCOA-607, ¶¶ 16–21. The State appealed based on

the dissent which would have held that it was not an abuse of discretion to allow the

expert to testify that fentanyl is an opiate. Id. at ¶ 35 (Stroud, C.J., dissenting). The

dissent also noted that the Court of Appeals recently held that “fentanyl ‘does indeed

qualify as an opiate’ as a matter of statutory interpretation.” Id. ¶ 42 (quoting State

v. Garrett, 277 N.C. App. 493, 2021-NCCOA-214, ¶ 16). Garrett involved the version

of the trafficking statute that was in place in 2016, which did not recognize opioids

as a class of controlled substances and listed fentanyl as an opiate. See N.C.G.S. § 90-

90(2) (2015). With the 2018 amendments in effect at the time of the relevant events

at issue in this case, the statute was changed to recognize fentanyl as either an

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“opiate[ ] or opioid[ ].” 1 See N.C.G.S. § 90-90(2) (2019).

The Court of Appeals received supplemental briefing on the impact of Garrett

on this case but did not decide whether fentanyl was an opiate as a matter of statutory

interpretation under the version of the trafficking statute that was in place in 2018,

N.C.G.S. § 90-95(h)(4) (2017). The trial court erred in concluding that whether

fentanyl is an opiate is a question of fact. Instead, whether fentanyl was an opiate for

purposes of the trafficking statute in 2018 is a question of law. Because it is a legal

question of statutory interpretation, it was not necessary to have expert testimony to

establish whether fentanyl is an opiate and it was not necessary to have what

otherwise may have been appropriate discovery by the defense of the basis for the

expert’s opinion on that question.

We vacate the opinion of the Court of Appeals and remand to that court for

consideration of whether fentanyl was an opiate as defined by the statutes in effect

at the time of Mr. Gibbs’s actions that are the basis for the conviction and sentence

in this case.

VACATED AND REMANDED.

Justice BERGER did not participate in the consideration or decision of this

case.

1To be clear, N.C.G.S. § 90-95(h)(4), which prohibits the trafficking of opium and opiates, remained the same between 2016 and the date of Mr. Gibbs’s offense.

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