State v. Miller, COA22-689, ___ N.C. App. ___ (Feb. 20, 2024)

In this Henderson County case, defendant appealed his convictions for trafficking in methamphetamine by possession and trafficking in opium by possession, arguing error in (1) denying his motion to dismiss the opium charge; (2) instructing the jury that opioids were included in the definition of “opium or opiate” at the time of the offense; and (3) considering evidence of improper factors at sentencing. The Court of Appeals majority disagreed, finding no error.

In November of 2018, the Henderson County Sheriff's Office executed a search warrant at defendant’s residence, and relevant to the current appeal, discovered a bottle of white pills later determined to be hydrocodone. At the trial, defendant moved to dismiss all charges, and the trial court denied defendant’s motion. During jury instructions, the trial court explained “that opioids were included in the definition of ‘opium or opiate’ under [G.S.] 90-95(h)(4)” over defendant’s objection. Slip Op. at 2. At the sentencing hearing after defendant’s conviction, the State mentioned that defendant rejected a plea deal and conducted additional drug activity at his home. Defendant subsequently appealed. 

Looking to (1), the Court of Appeals disagreed with defendant’s argument that hydrocodone was not a prohibited substance under G.S. 90-95(h)(4) at the time of the alleged offense. In State v. Garrett, 277 N.C. App. 493 (2021), the court held that opioids “qualify as an opiate within the meaning of the statute.” Slip Op. at 5, quoting Garrett at 497-98. The court explained that the same language from the 2016 statute interpreted in Garrett applied in to the 2017 version considered in the current case, and substantial evidence showed defendant possessed the opioid, supporting denial of his motion. This conclusion also addressed (2), as the court explained it was not error to provide a jury instruction that “opium or opiates” included “opioids” for purposes of the statute. Id. at 10.

In (3), the court found no evidence of improper sentencing, explaining “[a]lthough 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.” Id. at 12. 

Judge Murphy dissented by separate opinion, and would have held that the court was not bound by the opinion in Garrett because the General Assembly subsequently defined “opioids” in the 2017 version of G.S. 90-87(18a). Id. at 14.