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No. COA06-1329 / 19B DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA,
Plaintiff
vs.
FRANKIE ALLEN BULLINS,
Defendant / )
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) / From Randolph County
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Defendant Appellant’s Brief

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Table of Contents

Table of Contents

Table of Cases and Authorities

Question Presented

Statement of the Case

Statement of the Facts

Argument

The indictment failed to specify the substance possessed or any knowledge or intent that the substance would be used to manufacture meth, so the trial court lacked jurisdiction for a conviction and sentence.

Conclusion

Word Count Certification

Certificate of Service

Appendix 1: Indictment

Appendix 2: Precursor Chemicals Listed in N.C. Gen. Stat. §90-95(d2)

Table of Cases and Authorities

Cases

State v. Coker, 312 N.C. 432, 323 S.E.2d 343 (1984)...... 6

State v. Courtney, 248 N.C. 447, 103 S.E.2d 861 (1958)...... 3

State v. Jerrett, 309 N.C. 239, 307 S.E.2d 339 (1983)...... 4

State v. McBane, 276 N.C. 60, 170 S.E.2d 913 (1969)...... 4

State v. McGaha, 306 N.C. 699, 295 S.E.2d 449 (1982)...... 5

State v. Sellers, 273 N.C. 641, 161 S.E.2d 15 (1968)...... 5

State v. Snyder, 343 N.C. 61, 468 S.E.2d 221 (1996)...... 6

State v. Wallace, 351 N.C. 481, 528 S.E.2d 326 (2000)...... 5

State v. Watson, ___ N.C. App. ___, ___ S.E.2d ___ (COA05-1439, Sept. 5, 2006) 3

State v. Westbrooks, 345 N.C. 43, 478 S.E.2d 483 (1996).....3

Statutes

N.C. Gen. Stat. § 90-88...... 4

N.C.G.S. §15A-924(a)...... 4

Constitutional Provisions

Article I, Section 22 North Carolina Constitution...... 6

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Question Presented

Was an indictment alleging a violation of N.C. Gen. Stat. § 90-95(d1)(2)(a), possession of a precursor chemical with the intent to manufacture methamphetamine sufficient to give the court jurisdiction where the indictment failed to specify which precursor chemical was possessed and that it was possessed with the intent to manufacture methamphetamine? Assignments of error 1 and 2. (R. p. 20).

Statement of the Case

On June 29, 2006 this case was before the Randolph County Superior Court on a report alleging a probation violation. Bullins admitted the violation. (Tr. p. 2). The Hon. Stuart Albright revoked the probation and activated the 19-23 month sentence. (Tr. p. 10) Bullins filed a notice of appeal on July 7, 2006. (R. p. 16).

Statement of the Facts

The indictment in this case states that

“on or about the 8th day of February, 2005, and in the county named above unlawfully, willfully and feloniously did possess chemicals being chemical precursors in the manufacturing of methamphetamine, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State.”

(R. p. 4).

Bullins pled guilty to the charge on January 9, 2006 and was placed on probation with a 19-23 month suspended sentence. (R. p. 5).

On June 29, 2006, Bullins admitted violating the conditions of his probation. Mr. Bullins’ employer appeared at the hearing and testified that he was an excellent employee. (Tr. p. 7) The Court considered placing Bullins in a treatment program, but ultimately the Court activated his sentence.. (Tr. pp. 9-10).

Argument

The indictment failed to specify the substance possessed or any knowledge or intent that the substance would be used to manufacture meth, so the trial court lacked jurisdiction for a conviction and sentence.

ASSIGNMENTS OF ERROR NO. 1 and 2.

The elements of the offense possession of an immediate precursor chemical with the intent to manufacture a controlled substance are:

  1. Possession of the named substance,
  2. Knowledge that the substance would be used to manufacture a controlled substance, or the intent to manufacture the controlled substance.

N.C. Pattern Jury Instruction 260.15B.

The indictment in this case is defective because it failed to specify which precursor substance was possessed and contained no allegation that Bullins knew the precursor would be used in the manufacture of meth or that he intended to use it to manufacture meth.

The validity of an indictment is a conclusion of law that is reviewed de novo on appeal. State v. Watson, ___ N.C. App. ___, ___ S.E.2d ___ (COA05-1439, Sept. 5, 2006).

An indictment must allege all of the elements of the crime charged. State v. Westbrooks, 345 N.C. 43, 478 S.E.2d 483 (1996); State v. Courtney, 248 N.C. 447, 103 S.E.2d 861 (1958). Here the indictment is defective in two respects: it fails to allege which of the 45 chemicals listed as meth precursors were possessed and it omits any mention of knowledge or intent that the chemicals would be used to manufacture meth. Some of the listed precursor chemicals are common, such as iodine, acetone (nail polish remover) and hydrochloric acid. N.C. Gen. Stat. § 90-95(d2). In addition the Commission for Mental Health, Developmental Disabilities and Mental Health is authorized to designate other substances as precursors. N.C. Gen. Stat. § 90-88.

An indictment itself must contain all of the necessary allegations. The validity of the indictment must be judged by the four corners of the document, without regard to extrinsic information. “When a[n] ... indictment is challenged ... on the ground it fails to charge a criminal offense, decision must be based solely on the contents of such ... indictment.” State v. McBane, 276 N.C. 60, 64, 170 S.E.2d 913, 915 (1969). Under the common law, an indictment was required to allege every essential element of the conviction offense. State v. Jerrett, 309 N.C. 239, 259, 307 S.E.2d 339, 350 (1983). This common law requirement has been codified as N.C.G.S. §15A-924(a).

Specifying which of the chemicals were allegedly possessed is essential to enable a defendant to mount a defense. Mere possession of a listed substance is not illegal, it would only be unlawful if it was possessed with the required intent or knowledge. By omitting any mention of the specific substance a defendant would be left to guess at which of the 45 substances listed in the statute or others the Commission designated he is alleged to have possessed.

By omitting the allegation that the possession coincided with knowledge that or intent that the precursor was to be used in meth manufacture, the indictment alleges conduct that is not a crime. For example an individual who possessed iodine does have possession of a precursor chemical, and he may have knowledge that it is a substance that could be used in meth manufacture, but it is only unlawful if the person intends to use it in meth manufacture or knows that it will be so used.

Therefore because the indictment failed to specify which precursor was possessed and because it failed to allege intent or knowledge that it would be used to produce meth, the indictment was defective.

In the Bullins case there was a guilty plea so there was no challenge to its validity in the trial court. However, where an indictment is invalid on its face, it deprives the trial court of jurisdiction, a challenge to that indictment may be made at any time, even if it was not contested in the trial court. See, e.g., State v. Wallace, 351 N.C. 481, 528 S.E.2d 326 (2000); State v. McGaha, 306 N.C. 699, 295 S.E.2d 449 (1982); State v. Sellers, 273 N.C. 641, 645, 161 S.E.2d 15, 18 (1968).

A valid bill of indictment is essential to the court’s jurisdiction to try an offense. Article I, Section 22 North Carolina Constitution; State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996). The constitution requires that indictments:

  • provide the defendant with sufficient notice to defend against the charges against him;
  • sufficiently identify the charged conduct in order to protect the defendant’s right to be free from double jeopardy; and
  • inform the trial court what judgment to pronounce in the event of a conviction.

E.g., State v. Coker, 312 N.C. 432, 434-35, 323 S.E.2d 343, 346 (1984).

Because the indictment in this case was defective the trial court lacked jurisdiction for a conviction. Defendant respectfully requests that the judgment imposing the sentence be vacated.

Conclusion

The Court of Appeals should vacate the judgment of the trial court.

Respectfully submitted, this the 8th day of January 2007.

Bryan Gates
Attorney at Law
State Bar #21000
1 North Marshall St. Suite 100
Winston-Salem, NC 27101
(336) 724-0082

Word Count Certification

This brief contains 1097 words, was produced with 14-point Times New Roman type and otherwise complies with Appellate Rule 28.

Bryan Gates
Attorney at Law
State Bar #21000
1 North Marshall St. Suite 100
Winston-Salem, NC 27101
(336) 724-0082

Certificate of Service

I certify that on the January 8, 2007 a copy of the attached document was served on The State Of North Carolina by first-class mail postage paid,

to: / Heather H. Freeman
Assistant Attorney General
PO Box 629
Raleigh, NC 27602
Bryan Gates
Attorney at Law
State Bar #21000
1 North Marshall St. Suite 100
Winston-Salem, NC 27101
(336) 724-0082

Appendix 1: Indictment

Appendix 2: Precursor Chemicals Listed in N.C. Gen. Stat. §90-95(d2)

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  1. Acetic anhydride.
  2. Acetone.
  3. Anhydrous ammonia.
  4. Anthranilic acid.
  5. Benzyl chloride.
  6. Benzyl cyanide.
  7. 2Butanone (Methyl Ethyl Ketone).
  8. Chloroephedrine.
  9. Chloropseudoephedrine.
  10. Dlysergic acid.
  11. Ephedrine.
  12. Ergonovine maleate.
  13. Ergotamine tartrate.
  14. Ethyl ether.
  15. Ethyl Malonate.
  16. Ethylamine.
  17. Gammabutyrolactone.
  18. Hydrochloric Acid.
  19. Iodine.
  20. Isosafrole.
  21. Lithium.
  22. Malonic acid.
  23. Methylamine.
  24. Methyl Isobutyl Ketone.
  25. Nacetylanthranilic acid.
  26. Nethylephedrine.
  27. Nethylepseudoephedrine.
  28. Nmethylephedrine.
  29. Nmethylpseudoephedrine.
  30. Norpseudoephedrine.
  31. Phenyl2propane.
  32. Phenylacetic acid.
  33. Phenylpropanolamine.
  34. Piperidine.
  35. Piperonal.
  36. Propionic anhydride.
  37. Pseudoephedrine.
  38. Pyrrolidine.
  39. Red phosphorous.
  40. Safrole.
  41. Sodium.
  42. Sulfuric Acid.
  43. Tetrachloroethylene.
  44. Thionylchloride.
  45. Toluene.

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