State v. MillerState v. Miller
Attorney General Joshua H. Stein, by Assistant Attorney General Jodi Privette Carpenter, for the State.
Carolina Law Group, by Kirby H. Smith, III, for Defendant-Appellant.
CARPENTER, Judge.
Mark Alan Miller (“Defendant“) appeals from judgment entered after a Henderson County jury convicted him of trafficking in methamphetamine by possession, in violation of
I. Factual & Procedural Background
On 16 September 2019, a Henderson County grand jury indicted Defendant for, among other crimes, “trafficking opium/heroin” under
Trial evidence relevant to this appeal tended to show the following. On 7 November 2018, the Henderson County Sherriff‘s Drug Enforcement Unit executed a valid search warrant at Defendant‘s home, where they found a pill bottle containing thirteen white pills. Miguel Cruz-Quinones, a forensic scientist with the North Carolina State Crime Lab, tested the pills and found that they contained hydrocodone.
At the close of the State‘s case, Defendant moved to dismiss all the charges, which the trial court denied. Defendant elected not to put on any evidence, but he renewed his motion to dismiss the charges, which the trial court again denied. During its jury instructions, the trial court explained, over Defendant‘s objection, that opioids were included in thе definition of “opium or opiate” under
On 19 November 2021, the jury found Defendant guilty of “trafficking in methamphetamine by possession,” in violation of
II. Jurisdiction
This Court has jurisdiction under
III. Issues
The issues on appeal are whether the trial court erred by: (1) denying Defendant‘s motion to dismiss his
A. Motion to Dismiss
First, Defendant аrgues the trial court erred in denying his motion to dismiss the
We review a denial of a motion to dismiss de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). Under a de novo review, this Court “considers the matter anew and freely substitutes its own judgment” for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen, Ltd. P‘ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
“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 оffense 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 (2000) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980).
In reviewing Defendant‘s motion to dismiss, we must interpret
But our greatest guiding principle is stare decisis. See Dunn v. Pate, 334 N.C. 115, 118, 431 S.E.2d 178, 180 (1993). Stare decisis means once a prinсiple of law has been settled, “it is binding on the courts and should be followed in similar cases.” State v. Ballance, 229 N.C. 764, 767, 51 S.E.2d 731, 733 (1949). Stare decisis stands for the age-old axiom: “the law must be characterized by stability if men are to resort to it for rules of conduct.” Id. at 767, 51 S.E.2d at 733. We are bound by previous cases decided by this Court, “unless it has been overturned by a higher court.” In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). And we must adhere to stare decisis—even if the prior decision is not faithful to the text of a statute. See id. at 384, 379 S.E.2d at 37.
In State v. Garrett, we interpreted the 2016 version of
Recognizing the word “opioid” was not included in the text of the subsection, we nonetheless concluded that opioids, like fentanyl, “indeed qualify as an opiate within the meaning of the statute.” Id. at 497-98, 860 S.E.2d at 286. We reasoned that an opioid is “a highly addictive substance that produces effects that are similar to those of morphine by acting on the opiate cell receptors in the brain.” Id. at 499-500, 860 S.E.2d at 287. In other words, we held that possession of opioids violates
The 2017 version of
Here, the State charged Defendant with violating the 2017 version of
Because opioids like hydrocodone “qualify as an opiate within the meaning of the statute,” see Garrett, 277 N.C. App. at 497, 860 S.E.2d at 286, the State presented “substantial evidence (1) of each essential element of the offense charged . . . , and (2) of defendant‘s being the perpetrator of such offense.” See Fritsch, 351 N.C. at 378, 526 S.E.2d at 455;
The Dissent, however, argues that we are not bound by Garrett because there, we interpreted the 2016 version of
But we disagree with the Dissent‘s position on Garrett and stare decisis. See In re Civil Penalty, 324 N.C. at 384, 379 S.E.2d at 37. According to the Dissent, we are not bound by Garrett because we have yet to interpret the 2017 version of
Nonetheless, the Dissent would hold contrary to Garrett because other statutes “read in concert with
We could also agree with the Dissent if the General Assembly changed the actual language of
A clear, authoritative judicial holding on the meaning of a particular provision should not be cast in doubt and subjected to challenge whenever a related though not utterly inconsistent provision is adopted in the same statute or even in an affiliated statute. Legislative revision of law clearly established by judicial opinion ought to be by express language or by unаvoidably implied contradiction.
ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 331 (2012).
There is no express revision of
We echo the Dissent‘s proposition: “additional consideration of legislative intent would be inappropriate.” The Dissent, however, proceeds to consider the legislature‘s intent. The Dissent argues that by defining “opioid,” the General Assembly intended for “opiate” to no longer encompass opioids. If we were operating on a clean slate, maybe so. But again, we are not. See Garrett, 277 N.C. App. at 497, 860 S.E.2d at 286. In our view, if the General Assembly wanted to override the Garrett Court‘s interpretation of
If we follow the Dissent‘s approach, each year is a clean slate for statutory interpretation—even if a statute‘s language remains the same. See
B. Jury Instruction
Defendant next argues the trial court erred when, over Defendant‘s objection, it instructed the jury that opioids were included in the definition of “opium or opiate” under
This Court reviews the legality of jury instructions de novo. State v. Barron, 202 N.C. App. 686, 691, 690 S.E.2d 22, 29 (2010). Again, under a de novo review, this Court “considers the matter anew and freely substitutes its own judgment” for that of the lower tribunal.” Williams, 362 N.C. at 632-33, 669 S.E.2d at 294 (quoting In re Greens of Pine Glen, Ltd. P‘ship, 356 N.C. at 647, 576 S.E.2d at 319). And concerning jury instructions, “[i]t is the duty of the trial court to instruct the jury on the law applicable to the substantive features of the case arising on the evidence . . . .” State v. Robbins, 309 N.C. 771, 776-77, 309 S.E.2d 188, 191 (1983).
Here, the trial court did not err by instructing the jury that opioids were included in the definition of “opium or opiates” because, as detailed above, this Court has so held. See Garrett, 277 N.C. App. at 497, 860 S.E.2d at 286;
C. Sentencing
Lastly, Defendant argues the trial court improperly considered his rejection of the State‘s plea offer and additional drug activity during sentencing, violating his constitutional rights. Again, we disagree.
“[A]n error at sentencing is not considered an error for the purpose of
N.C. Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure ’ and therefore no objection is required to preserve the issue for appellate review.” State v. Jeffrey, 167 N.C. App. 575, 579, 605 S.E.2d 672, 674 (2004) (quoting State v. Hargett, 157 N.C. App. 90, 92, 577 S.E.2d 703, 705 (2003)). So, we reviеw constitutional sentencing issues de novo, regardless of whether the defendant objected at trial. See State v. Harris, 242 N.C. App. 162, 164, 775 S.E.2d 31, 33 (2015). And under a de novo review, this Court “considers the matter anew and freely substitutes its own judgment” for that of the lower tribunal.” Williams, 362 N.C. at 632-33, 669 S.E.2d at 294 (quoting In re Greens of Pine Glen, Ltd. P‘ship, 356 N.C. at 647, 576 S.E.2d at 319).
“A sentence within the statutory limit will be presumed regular and valid.” State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977). This presumption, however, is not conclusive. Id. at 712, 239 S.E.2d at 465. “If the record discloses that the court considered irrelevant and improper matter in determining the severity of the sentence, the presumption of regularity is overcome, and the sentence is in violation of defendant‘s rights.” Id. at 712, 239 S.E.2d at 465.
In Boone, the trial court “indicated that the sentence imposed was in part induced by defendant‘s exercise of his constitutional right to plead not guilty and demand a trial by jury.” Id. at 712, 239 S.E.2d at 465. And as a result, the Boone Court “remanded for entry of a proper judgment, without consideration of defendant‘s refusal to plead guilty to a lesser offense.” Id. at 713, 239 S.E.2d at 465. Similarly, this Court has held that a sentencе violates a defendant‘s rights if the trial court specifically comments on the refusal of a plea deal. See, e.g., State v. Cannon, 326 N.C. 37, 39-40, 387 S.E.2d 150, 151 (1990) (reversing the trial court‘s sentence because “the Trial judge stated his intended sentence even before the evidence was presented to the jury on the issue of guilt“).
By contrast, if “the record reveals no such express indication of improper motivation,” and the trial court insteаd “merely prefaced its pronouncement of defendant‘s sentences with the statement, routinely made at sentencing, that it had, inter alia, considered the arguments of counsel,” then the sentence imposed will not violate a defendant‘s rights. State v. Johnson, 320 N.C. 746, 753, 360 S.E.2d 676, 681 (1987).
Here, Defendant failed to overcome the presumption of regularity and validity in the trial court‘s sentencing. See Boone, 293 N.C. at 712, 239 S.E.2d at 465. Although the State mentioned Defendant‘s failure to accept a plea offer, there is no evidence in the record that the trial court specifically commented on or considered the refusal. Accordingly, there is no evidence that the trial court improperly considered Defendant‘s rejection of the plea offer, so the trial court‘s sentencing was valid. See Johnson, 320 N.C. at 753, 360 S.E.2d at 681.
Moreover, the record reflects the trial court‘s comment concerning the additional drug activity during sentencing was only in immediate response to the State, which mentioned the event. The trial court‘s only comment on the additional drug activity was a clarifying question about the date of the alleged activity.
This exchange does not support Defendant‘s argument that the trial court considered irrelevant and improper matter in determining the severity of the sentence. See id. at 753, 360 S.E.2d at 681. As no evidеnce suggests that the trial court considered the additional drug activity when it sentenced Defendant, the trial court did not error in sentencing Defendant to two consecutive sentences for his multiple offenses. See id. at 753, 360 S.E.2d at 681.
V. Conclusion
We hold that the trial court did not err by denying Defendant‘s motion to dismiss his charge under
NO ERROR.
Judge ZACHARY concurs
Judge MURPHY dissents in a separate opinion.
MURPHY, Judge, dissenting.
I dissent from the Majority‘s holding that our interpretation of
The Majority holds that “the 2017 statute is the same statute interpreted by the Garrett Court,” and, accordingly, “the 2017 statute includes opioids.” It is true that both
Any person who sells, manufactures, delivers, transports, or possesses four grams or more of opium or opiate, or any salt, compound, derivative, or preparation of opium
or opiate (except apomorphine, nalbuphine, naloxone and naltrexone and their respective salts), including heroin, or any mixture containing such substance, shall be guilty of a felony which felony shall be known as “trafficking in opium or heroin. . . .”
“Where . . . the statute, itself, contains a definition of a word used therein, that definition controls, however contrary to the ordinary meaning of the word it may be.” In re Clayton-Marcus Co., 286 N.C. 215, 219 (1974). Despite the clear application of the “definitions” in
For the purposes of the 2016 statute, the following definition applied to the term “opiate“:
(18) “Opiate” means any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. It does not include, unless specifically designated as controlled under G.S. 90-88, the dextrorotatory isomer of 3-methoxy-n-methyl-morphinan and its salts (dextromethorphan). It does include its racemic and levorotatory forms.
However, for the purposes of the 2017 statute, the following definitions applied to the terms “opiate” and “opioid“:
(18) “Opiate” means any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. It does not include, unless specifically designated as controlled under G.S. 90-88, the dextrorotatory isomer of 3-methoxy-n-methyl-morphinan and its salts (dextromethorphan). It does include its racemic and levorotatory forms.
(18a) “Opioid” means any synthetic narcotic drug having opiate-like activities but is not derived from opium.
These definitions, read in concert with
Unlike the 2017 statute, the 2016 statute, which governed the meaning of “opiate” in Garrett, did not distinguish between the definitions of “opiates” and “opioids.” See
Here, however, two distinct definitions unambiguously separate “opioids” from “opiates,” and additional consideration of legislative intent would be inappropriate. According to the plain language of
When the “plain reading of [a] statute creates a [perceived] loophole” that seems to contradict the legislature‘s intended purpose, it is not This Court‘s role to remedy this loophole. Wake Radiology Diagnostic Imaging LLC v. N.C. Dep‘t of Health & Human Servs., 279 N.C. App. 673, 675 (2021). In Wake Radiology, we held such a loophole “is not a concern for this Court. We interpret the law as it [was] written. If that interpretation results in an unintended loophole, it is the legislature‘s role to address it.” Id.
The 2016 statute we interpreted in Garrett is nоt identical to the 2017 statute which we are called upon to interpret in this case. Accordingly, the principle of stare decisis does not apply, and our holding in Garrett does not bind our holding here. It is clear from the plain statutory language in the 2017 statute that “opioids” were to be differentiated from “opiates.” Although the State does not raise any argument as to the public policy impact of interpreting
I would reverse the trial court‘s denial of Defendant‘s motion to dismiss the trafficking in opium by possession charge and vacate Defendant‘s conviction for this offense based on the State‘s failure to provide substantial evidence that the acetaminophen-hydrocodone tablets seized from Defendant‘s house constituted “opium” or “opiates.” Accordingly, I would dismiss Defendant‘s argument regarding the trial court‘s jury instruction on the trafficking in opium by possession charge as moot. See State v. Angram, 270 N.C. App. 82, 88 (2020) (“Because we must reverse the judgment, we need not address [the] defendant‘s other issue on appeal.“).
Finally, Defendant only raises prejudicial concerns regarding the trial court‘s alleged consideration of improper sentencing factors based on its decision not to consolidate Defendant‘s trafficking judgments and to run Defendant‘s sentences consecutively rather than concurrently. Defendant does not claim to have suffered any other prejudice at sentencing. Reversal of Defendant‘s conviction for trafficking in opium by possession would resolve any alleged prejudice caused by running his sentences consecutively or by declining to consolidate his judgments, as Defendant would remain sentenced on a single conviction. Therefore, I would dismiss this argument as moot. Cf. State v. Wright, 342 N.C. 179, 181 (1995) (holding that a defendant sentenced to life imprisonment could not have been prejudiced by any alleged errors for which the only prejudicial impact would be to render capital punishment inappropriate).
I respectfully dissent.