State v. Piland, ___ N.C. App. ___, 822 S.E.2d 876 (Dec. 18, 2018)

The evidence was insufficient to support a conviction for a drug offense within 1000 feet of a child care center. Under G.S. 90-95(e)(8), a defendant is punished as a Class E felon if he commits certain drug offenses within 1000 feet of the boundary of real property used for a child care center. G.S. 110-86(3) defines a child care center as “an arrangement where, at any one time, there are three or more preschool-age children or nine or more school-age children receiving child care.” Here, no evidence was elicited from any witness about how many children actually were in the facility at any given time; the witnesses only testified to the facility’s potential capacity. Thus, there was no evidence that the facility met the statutory definition. The court vacated and remanded for resentencing on the lesser included offenses.