An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-762 NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
STATE OF NORTH CAROLINA
v. Jackson County No. 11 CRS 1787 11 CRS 1789-95
SCOTT JAY STOUGH
Appeal by Defendant from judgments entered 1 October 2012
by Judge Alan Z. Thornburg in Jackson County Superior Court.
Heard in the Court of Appeals 9 January 2014.
Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Paul M. Green, for Defendant.
DILLON, Judge.
Scott Stough (“Defendant”) appeals from judgments entered 1
October 2012 convicting him of eight drug-related crimes,
including, inter alia, trafficking in methamphetamine by
possession, as well as three conspiracy crimes involving
methamphetamine. On appeal, Defendant challenges the -2- sufficiency of the evidence to support that the mixture he
allegedly possessed was actually methamphetamine or to support
his conviction of multiple conspiracies. Defendant also
contends the trial court committed plain error in its
instructions pertaining to the conspiracy charges. Because we
believe that the evidence cannot support a conviction for both
conspiracy to traffic methamphetamine by possession and
conspiracy to traffic methamphetamine by manufacture, see State
v. Howell, 169 N.C. App. 741, 749, 611 S.E.2d 200, 206 (2005),
we vacate Defendant’s conviction on the latter charge and remand
this matter to the trial court to arrest judgment on the latter
conviction only. However, as to Defendant’s remaining
arguments, we find no reversible error.
The evidence of record tends to show the following:
Defendant operated the Moonshine Mini Mart (the “Mini Mart”), a
convenient store in Cullowhee, North Carolina. The Mini Mart
was owned by Defendant’s sister, Charlotte Stough, who lived in
a basement apartment below the Mini Mart.
Agent Shannon Ashe, with the North Carolina State Bureau of
Investigation, interviewed Tim Luker and Tripp Parker concerning
illegal drug activity at the Mini Mart. Both implicated
Defendant in the illegal manufacturing of methamphetamine. For -3- example, Luker indicated that he had purchased pseudoephedrine,
an ingredient used in the manufacture of methamphetamine, for
Defendant on three occasions.
Agent Ashe confirmed through MethCheck – a statewide
centralized computer that tracks all sales of pseudoephedrine –
that Luker had, indeed, purchased pseudoephedrine three times.
Moreover, he confirmed that Defendant’s license and that of his
sister were used to purchase pseudoephedrine over 30 times
between March 2009 and November 2010. Amanda Clawson, Luker’s
girlfriend, purchased pseudoephedrine on four occasions between
September and November 2010.
On 4 December 2010, Agent Ashe received a notification
through MethCheck that Defendant had just made a purchase of
pseudoephedrine at a local pharmacy and immediately proceeded to
that location, where he observed Defendant leaving the pharmacy
and proceeding to his sister’s basement apartment.
After securing a warrant, a team of officers approached
Defendant’s and Charlotte Stough’s residences. In Defendant’s
residence, police discovered marijuana, pipes for smoking
marijuana and methamphetamine, and two boxes of pseudoephedrine.
Police also entered the Mini Mart where they saw Defendant
standing in the gap between the two counters. Police also -4- observed another man, Harley Shearer, proceeding from the Mini
Mart to Charlotte’s apartment with a backpack and a cardboard
box. In the cardboard box, police discovered, inter alia,
Defendant’s checkbook wrapped in a rubber band, inside which
police discovered a baggie of methamphetamine and several pieces
of paper containing “methamphetamine recipes.”
Another warrant was obtained to search the Mini-Mart.
During the search of the Mini Mart, the police discovered a
number of items used in the production of methamphetamine. Also
at the Mini Mart, Police discovered a bottle containing a
mixture which purportedly included liquid methamphetamine under
one of the counters where Defendant had been standing.
Defendant was arrested, after which he was indicted on
numerous charges and tried in the 10 September 2012 session of
Jackson County Superior Court, the Honorable Alan Z. Thornburg
presiding. A jury found Defendant guilty of eight drug-related
charges. The trial court entered judgments consistent with the
jury’s verdicts and sentenced Defendant to concurrent terms in
the presumptive range of 96 to 125 months, three terms of 90 to
117 months, 21 to 26 months, and 10 to 12 months. Defendant was
also sentenced to a term of 6 to 8 months on one of the charges,
which was set as consecutive, but which was suspended with -5- Defendant placed on supervised probation. From these judgments,
Defendant appeals.
I: Sufficiency of the Evidence; Standard of Review
In Defendant’s first two arguments on appeal, he contends
the trial court erred by denying his motion to dismiss for
insufficiency of the evidence for two reasons: (1) The State
allegedly presented insufficient evidence to support more than
one conspiracy charge, implicating principles of double
jeopardy; and (2) the State allegedly presented insufficient
evidence to support Defendant’s possession of 200 to 400 grams
of a mixture containing methamphetamine. We address each
argument in turn.
“This Court reviews the trial court’s denial of a motion to
dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650
S.E.2d 29, 33 (2007). “‘Upon defendant’s motion for dismissal,
the question for the Court is whether there is substantial
evidence (1) of each essential element of the offense charged,
or of a lesser offense included therein, and (2) of defendant’s
being the perpetrator of such offense. If so, the motion is
properly denied.’” State v. Fritsch, 351 N.C. 373, 378, 526
S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430
S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed. -6- 2d 150 (2000). “In making its determination, the trial court
must consider all evidence admitted, whether competent or
incompetent, in the light most favorable to the State, giving
the State the benefit of every reasonable inference and
resolving any contradictions in its favor.” State v. Rose, 339
N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515
U.S. 1135, 132 L. Ed. 2d 818 (1995).
A: Multiple Conspiracy Convictions
Defendant first argues the State presented insufficient
evidence to support his three conspiracy convictions –
conspiracy to manufacture methamphetamine, conspiracy to traffic
methamphetamine by possession, and conspiracy to traffic
methamphetamine by manufacture – stating that, at most, the
State proved one conspiracy to manufacture and possess 200 to
400 grams of a mixture containing methamphetamine. Defendant
further contends his right to be free from double jeopardy was
infringed.
“The crime of conspiracy is, essentially, an agreement to
commit a substantive criminal act.” State v. Howell, 169 N.C.
App. 741, 748, 611 S.E.2d 200, 205 (2005) (citation omitted).
“No express agreement need be proved; proof of circumstances
which point to a mutual implied understanding to commit the -7- unlawful act is sufficient to prove a conspiracy.” Id.
(citation omitted). “There is no simple test for determining
whether single or multiple conspiracies are involved: the
essential question is the nature of the agreement or agreements,
but factors such as time intervals, participants, objectives,
and number of meetings all must be considered.” State v.
Rozier, 69 N.C. App. 38, 52, 316 S.E.2d 893, 902, cert. denied,
312 N.C. 88, 321 S.E.2d 907 (1984) (citation omitted).
The State contends that Defendant’s arguments have been
waived. Specifically, the State contends – and Defendant
concedes - that Defendant did not properly preserve his double
jeopardy argument by lodging a motion a trial. See State v.
Kirkwood, __ N.C. App. __, __, 747 S.E.2d 730, 736, appeal
dismissed, __ N.C. __, __ S.E.2d __ (2013) (holding that “a
double jeopardy issue cannot be raised for the first time on
appeal”). Further, inasmuch as Defendant’s argument is a
sufficiency argument – based on the State’s alleged failure to
provide substantial evidence of three separate agreements to
support three conspiracy convictions – and not a constitutional
double jeopardy argument, Defendant concedes that his argument,
likewise, was not properly preserved by his failure at trial to
move to dismiss the charges on this basis. See State v. Euceda- -8- Valle, 182 N.C. App. 268, 271, 641 S.E.2d 858, 861, cert.
denied, 361 N.C. 698, 652 S.E.2d 923 (2007) (stating that
“[w]hen a party changes theories between the trial court and an
appellate court, the [argument] is not properly preserved and is
considered waived”).
However, with respect to two of Defendant’s conspiracy
convictions, the State makes the following declaration in its
brief: “At best, [D]efendant is correct that the conspiracy to
traffick by possession, and conspiracy to traffick by
manufacture cannot each be supported [by the evidence] . . . and
that judgment must be arrested as to one of these counts,” and
cites our decision in Howell, supra, to support this
“concession.” We agree with the State’s concession that in this
case, like in Howell, though there was substantial evidence “to
support a finding of [D]efendant’s guilt of conspiracy to
traffic” in methamphetamine, there was not substantial evidence
that Defendant engaged in “two [separate] conspiracies” to
traffic. 169 N.C. App. at 748-49, 611 S.E.2d at 606. Further,
we choose to consider Defendant’s sufficiency argument to the
extent that he argues the insufficiency of the evidence to
support both his conviction of conspiracy to traffic
methamphetamine by possession and his conviction of conspiracy -9- to traffic the same by manufacture; and, following our
resolution in Howell, we vacate judgment on one of Defendant’s
three conspiracy convictions, namely his conviction of
conspiracy to traffic methamphetamine by manufacture.
B: Possession of 200 to 400 grams
Defendant argues on appeal that the State presented
insufficient evidence to support his possession of 200 to 400
grams of a mixture containing methamphetamine, an element of
trafficking by possession. This argument is properly preserved;
however, we conclude it is without merit.1
Specifically, Defendant argues that there was insufficient
evidence that the mixture in the bottle found under the Mini
Mart counter contained methamphetamine. Rather, Defendant
contends the State only presented evidence that the bottle
1 N.C. Gen. Stat. § 90-95(h)(3b)b., under which Defendant was convicted, does not require that the crime involve 200 grams of methamphetamine, but rather allows for a conviction if the “mixture” which contains some amount of methamphetamine weighs at least 200 grams. This Court held that under a prior version of this statute, trafficking in methamphetamine was determined by the amount of the methamphetamine itself and not the weight of the entire mixture which contained the methamphetamine. State v. Conway, 194 N.C. App. 73, 669 S.E.2d 40 (2008). However, this statute was amended by the General Assembly in 2009 Session Law, Chapter 463, which provided “AN ACT TO AMEND THE LAW REGARDING TRAFFICKING IN METHAMPHETAMINE AND AMPHETAMINE TO CLARIFY THAT THE CHARGE OF TRAFFICKING IS BASED ON THE WEIGHT OF THE ENTIRE POWDER OR LIQUID MIXTURE RATHER THAN THE WEIGHT OF THE ACTUAL AMOUNT OF CONTROLLED SUBSTANCE IN THE POWDER OR LIQUID MIXTURE.” -10- contained four of the five ingredients – namely pseudoephedrine,
ammonium nitrate, lithium metal strips and Coleman fuel -
necessary to start the chemical reaction that produces
methamphetamine, but that the State “presented no evidence that
sodium hydroxide[,]” also called caustic soda or lye, “had been
added to the mixture” to complete the chemical process.
Defendant’s theory was supported by testimony from his expert.
Our review of the record, however, shows contrary evidence,
which supports the State’s position that the bottle found at the
Mini Mart, indeed, contained methamphetamine. For instance,
Special Agent Morrow Lee Tritt (“Agent Tritt”), a clandestine
laboratory expert with twenty years of experience at the State
Bureau of Investigation, testified to the presence of this fifth
ingredient in the bottle as follows:
Q. And then at the bottom – what would be the bottom of the bottle, what would be the parts of it that we’re looking at there?
A. These actually appear to be the little round beads of the amonia [sic] nitrate fertilizer. Also has sodium hydroxide in it and then the pseudoephedrine as well, along with the Coleman fuel and the lithium. Five items.
Further, Elizabeth Regan, forensic chemist with the North
Carolina State crime lab, testified that she did not agree with
Defendant’s expert, but rather she indicated that one sample of -11- the mixture she tested contained an “abundance of . . . 100,000
units[,]” which she opined was “a reportable amount.” Ms. Regan
said, “[i]n this instance, that is a significant amount.”
Accordingly, there was substantial evidence that at least a
portion of the mixture in the bottle had combined to become
methamphetamine.
Defendant further contends that the testimony of his expert
revealed that the State’s evidence regarding its chemical
analysis of the substance in the bottle was “not . . .
scientifically valid,” and therefore inconsistent with State v.
Ward, 364 N.C. 134, 147, 694 S.E.2d 738, 747 (2010), which
stated that “the burden is on the State to establish the
identity of any alleged controlled substance[,] . . . [and] some
form of scientifically valid chemical analysis is required.” We
disagree. Rather, the State’s evidence showed that a chemical
analysis was performed. Specifically, Agent Michael Piwowar, a
forensic chemist with the State Bureau of Investigation, Crime
Laboratory Division, testified as follows: “The first thing I
did was, again, a marquis color test, which turned orange. And
the orange indication indicates a possibility of a
methamphetamine or a methamphetamine-like substance. So to
confirm the presence, I did use a GC mass spectrometer, which is -12- an instrument that will actually separate out any components
contained into a sample. And upon using that, I got the result
of methamphetamine and pseudoephedrine.”
After reviewing the evidence in the record in the light
most favorable to the State, we conclude the State presented
sufficient evidence for the jury to infer that the bottle in
Defendant’s constructive possession contained a methamphetamine
mixture.
II: Jury Instruction; Plain Error
In Defendant’s next argument on appeal, he contends that
the trial court committed plain error in two respects when it
instructed the jury on the conspiracy indictments. We have
carefully reviewed the jury instruction and conclude that the
trial court did not commit error, much less plain error, in
either respect.
In this case, the trial court provided separate
instructions for each of the three conspiracy indictments.
Defendant argues that because “[t]he evidence supported no more
than one agreement[,] . . . [t]he trial judge could not properly
instruct the jury on three virtually identical conspiracies
without giving the jury the option of finding that the three
charges constituted only one conspiracy.” In other words, -13- Defendant does not argue that the trial court misstated the law
with respect to any one of the three conspiracies charged.
Rather, Defendant argues that the trial court erred by failing
to provide an additional instruction that the jury could find
that Defendant had only entered into a single agreement to
commit three crimes – rather than three separate agreements – in
which case, Defendant might have only been convicted of a single
conspiracy. We note that we have ordered the judgment with
respect to one of Defendant’s three conspiracy convictions
arrested based on our holding in Section I of this opinion.
However, even with respect to the two remaining conspiracy
convictions, we disagree with Defendant’s argument.
A trial court is required to instruct “on every substantive
feature of the case, even in the absence of a request for such
an instruction[;]” however, “the trial court need not instruct
the jury with any greater particularity than is necessary to
enable the jury to apply the law to the substantive features of
the case arising on the evidence when . . . the defendant makes
no request for additional instructions.” State v. Atkinson, 39
N.C. App. 575, 581, 251 S.E.2d 677, 682 (1979) (citations
omitted). “A substantive feature of a case is any component
thereof which is essential to the resolution of the facts in -14- issue[;] [e]vidence which does not relate to the elements of the
crime itself or the defendant’s criminal responsibility
therefore are subordinate features of the case.” Id. (citations
omitted).
In this case, Defendant’s proposed instruction on appeal,
that the jury had the “option of finding that the [multiple
conspiracy] charges [of conspiracy] constituted only one
conspiracy[,]” would not have been an instruction on a
“substantive feature” of the case, even had the Defendant
submitted a request, or lodged an objection, at trial. See
State v. McNeill, 346 N.C. 233, 485 S.E.2d 284 (1997) (stating
that the defendant’s “oral request to modify the pattern
instruction” was “tantamount to a request for special
instructions[,]” and holding that because the defendant “did not
submit either of his proposed modifications in writing . . . it
was not error for the trial court to fail to charge as
requested”). Defendant did not request that the trial court
give this additional instruction; rather, he contends it was
plainly erroneous for the trial court not to give the
instruction ex mero motu. We find this argument unconvincing.
Here, the trial court instructed the jury on all of the
substantive features of the conspiracy cases; and it was not -15- error, much less plain error, for the trial court to fail to
instruct the jury that it had the “option of finding that the
[multiple] charges [of conspiracy] constituted only one
conspiracy[,]” where no request was made by Defendant for the
instruction.
Alternatively, Defendant argues the instructions “violated
the unanimity requirement by listing five co-conspirators in the
conjunctive[.]” Specifically, in the instructions for the
conspiracy charges, the trial court stated that one of the
elements the State had to prove was that “Defendant and
Charlotte Stough, Harley Sheerer, Tim Luker, Amanda Clawson
and/or Tripp Parker entered into an agreement.” Defendant
argues that this conjunctive instruction deprived him of a
unanimous jury verdict because some of the jurors may have
believed that he conspired with one of the listed co-
conspirators while other jurors may have believed that he
conspired with a different co-conspirator. We addressed this
identical argument in State v. Worthington, 84 N.C. App. 150,
159, 352 S.E.2d 695, 701, disc. review denied, 319 N.C. 677, 356
S.E.2d 785 (1987), and we are bound by the holding in that case
on this issue. -16- The defendant in Worthington was convicted of conspiracy to
sell/deliver cocaine. The verdict sheet submitted to the jury
stated that the jury could find him guilty if it determined that
he had conspired “with Dalton Woodrow Worthington, Sr. and/or
Patricia Ann Newby . . . to sell or deliver [cocaine].” Id.
Similar to Defendant’s argument in the present case, the
defendant in Worthington argued that the verdict sheet language
deprived him of his right to a unanimous jury verdict because
“there is a possibility that some jurors found a conspiracy with
Worthington and others found a conspiracy with Newby.” Id. Our
Court rejected this argument, holding that “the instructions
were adequate to be sure that defendant’s right to a unanimous
verdict was not violated.” Id. Accordingly, Defendant’s
argument is overruled.
III: Double Jeopardy; Punitive Controlled Substances Tax
In Defendant’s final argument on appeal, he contends the
denial of his motion to dismiss on double jeopardy grounds –
because the State had already exacted a criminal punishment by
assessing and collecting a punitive controlled substances tax –
was error. Citing Lynn v. West, 134 F.3d 582, 593 (4th Cir.
1998), Defendant presents this argument on appeal for
preservation and to urge this Court “to reconsider the soundness -17- of these precedents.” We are bound by the decision of a
previous panel of this Court on this issue in State v.
Ballenger, 123 N.C. App. 179, 472 S.E.2d 572 (1996), aff’d per
curiam, 345 N.C. 626, 481 S.E.2d 84, cert. denied, 522 U.S. 817
(1997). Therefore, this argument must necessarily fail.
IV. CONCLUSION
For the reasons stated above, we vacate Defendant’s
conviction for conspiracy to traffick in methamphetamine by
manufacture and remand to the trial court to arrest judgment on
this conviction only. Otherwise, we find no reversible error.
NO ERROR in part, REVERSED AND REMANDED in part.
Judge STROUD and Judge HUNTER, JR. concur.
Report per Rule 30(e).