In this McDowell County case, defendant appealed his convictions for conspiracy to traffic in methamphetamine and aiding and abetting a continuing criminal enterprise (“CCE”), arguing (1) the CCE indictment was fatally flawed as it did not specify each of the acts committed under the CCE, and (2) the conspiracy verdict was fatally ambiguous, as it was impossible to determine if the jury unanimously found trafficking by possession or by transportation. The Court of Appeals majority agreed regarding (1), vacating defendant’s CCE conviction, but upheld the conspiracy to traffic methamphetamine conviction in (2). 

Defendant was an admitted participant in a drug trafficking enterprise, but was not an organizer or employee of the principal operation, instead being a routine purchaser of drugs for resale. Considering (1), the Court of Appeals noted that G.S. 90-95.1 defines the offense of CCE, and that the federal crime in 21 U.S.C. § 848 has nearly identical wording. This led the court to consult applicable precedent in Richardson v. United States, 526 U.S. 813 (1999), for the idea that specificity of illegal conduct is essential in a CCE indictment. The court found no such specificity here, explaining:

The indictment does not allege that the enterprise engaged in any specific conduct, only defining the CCE as “a continuing series of violations of Article 5 of Chapter 90 of the General Statutes” and generally naming the participants and their positions in the trafficking scheme’s hierarchy.  A juror would have no way of knowing how many criminal acts were committed within the organization or how Defendant’s acts advanced them; while the indictment specifies that Defendant aided and abetted the CCE “by trafficking in methamphetamine[,]” it says nothing of why the enterprise with which Defendant dealt constituted a CCE.

Slip Op. at 8-9. This led the court to hold that “each underlying act alleged under N.C.G.S. § 90-95.1 constitutes an essential element of the offense” and that “a valid indictment under N.C.G.S. § 90-95.1 requires the state to specifically enumerate the acts alleged.” Id. at 9. Because the State did not do so in the current case, the indictment was fatally defective and the court vacated defendant’s CCE conviction. 

Moving to (2), the court explained that the core of defendant’s argument was that failing to distinguish between trafficking by possession and by transportation rendered the jury’s verdict fatally ambiguous. The court drew a distinction between disjunctive jury instructions that (a) would allow a jury to find defendant guilty of any one of multiple underlying offenses, or (b) various alternative acts that establish elements of the single offense being charged. Here, the court found (b), as “[w]here a conspiracy charge disjunctively lists multiple offenses . . . each underlying offense does not create a separate conspiracy, but is instead an alternative act by which a Defendant may be found guilty of the singular conspiracy alleged.” Id. at 11. This led the court to find no fatal ambiguity for defendant’s conspiracy conviction. 

Judge Stroud concurred in part and dissented in part by separate opinion, and would have found no fatal ambiguity (1), allowing the CCE conviction to stand. Id. at 13.

In this child sexual assault case, the trial court did not err by denying the defendant’s motion to dismiss five statutory sexual offense charges based on a theory of aiding and abetting. The State’s theory was that the defendant encouraged the victim’s mother to engage in sexual activity with the victim, and that the victim’s mother did this to “bait” the defendant into a relationship with her. On appeal the defendant argued that the evidence was insufficient to show that he encouraged or instructed the victim’s mother to perform cunnilingus or digitally penetrate the victim, or that any statement by him caused the victim’s mother to perform the sexual acts. The court disagreed. The State’s evidence included Facebook conversations between the victim’s mother and the defendant. The defendant argued that these messages were fantasies and that even if taken at face value, were devoid of any instruction or encouragement to the victim’s mother to perform sexual acts, specifically cunnilingus or penetration of the victim. The court rejected this argument, concluding that an explicit instruction to engage in sexual activity is not required. Here, the evidence showed that the defendant knew that the victim’s mother wanted a relationship with him and that he believed she was using the victim to try to initiate that relationship. Numerous messages between the defendant and the victim’s mother support a reasonable inference of a plan between them to engage in sexual acts with the victim. The victim’s mother testified that she described sexual acts she performed on the victim to the defendant because he told her he liked to hear about them. The defendant argued that this description of sexual acts after the fact is insufficient to support a finding that he knew of or about these acts prior to their occurrence, a requirement for aiding and abetting. However, the court concluded, the record supports an inference that he encouraged the victim’s mother to perform the acts. Among other things, the defendant specified nude photos that he wanted of the victim and initiated an idea of sexual “play” between the victim’s mother and the victim. After the victim’s mother videotaped her act of performing cunnilingus on the victim and send it to the defendant, the defendant replied that he wanted to engage in that act. After he requested a video of the victim “playing with it,” the victim’s mother made a video of her rubbing the victim’s vagina. This evidence was sufficient to support an inference that the defendant aided and abetted in the victim’s mother’s sexual offenses against the victim.