{ "id": 12425135, "name": "STATE OF NORTH CAROLINA v. AUSTIN LYNN MILLER", "name_abbreviation": "State v. Miller", "decision_date": "2017-06-09", "docket_number": "No. 113PA16", "first_page": "658", "last_page": "678", "citations": [ { "type": "official", "cite": "369 N.C. 658" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "783 S.E.2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12644921 ], "year": 2016, "opinion_index": -1, "case_paths": [ "/se2d/783/0512-01" ] }, { "cite": "192 L. Ed. 2d 1", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 12589931 ], "year": 2015, "pin_cites": [ { "page": "8, 17" } ], "opinion_index": 0, "case_paths": [ "/s-ct/135/2001-01" ] }, { "cite": "614 S.E.2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633154 ], "weight": 18, "year": 2005, "pin_cites": [ { "page": "566" }, { "page": "487" }, { "page": "488" }, { "page": "487", "parenthetical": "citations omitted" }, { "page": "483-85" }, { "page": "565" }, { "page": "486" }, { "page": "568" }, { "page": "488" }, { "page": "486-88" }, { "page": "568" }, { "page": "488" }, { "page": "569" }, { "page": "488" }, { "page": "488-89", "parenthetical": "first and seventh alterations in original" }, { "page": "488" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0479-01" ] }, { "cite": "186 L. Ed. 2d 877", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 12697000, 12697005, 12697006, 12697007, 12697008, 12697016, 12697019 ], "year": 2013, "opinion_index": 0, "case_paths": [ "/us/569/1038-08", "/us/569/1038-05", "/us/569/1038-06", "/us/569/1038-07", "/us/569/1038-09", "/us/569/1039-03", "/us/569/1039-04" ] }, { "cite": "783 S.E.2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12644921 ], "weight": 29, "year": 2016, "pin_cites": [ { "page": "523-24" }, { "page": "516" }, { "page": "516" }, { "page": "516-17" }, { "page": "517" }, { "page": "517" }, { "page": "517-23" }, { "page": "519-20" }, { "page": "520" }, { "page": "520" }, { "page": "520" }, { "page": "520" }, { "page": "520" }, { "page": "520-21" }, { "page": "521", "parenthetical": "alteration in original" }, { "page": "521" }, { "page": "523-24" } ], "opinion_index": 0, "case_paths": [ "/se2d/783/0512-01" ] }, { "cite": "18 U.S.C. \u00a7 641", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1948, "opinion_index": 0 }, { "cite": "18 U.S.C. \u00a7 2252", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(a)(1)(A)" } ], "opinion_index": 0 }, { "cite": "513 U.S. 64", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1332234 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "68, 78" }, { "page": "378, 385" } ], "opinion_index": 0, "case_paths": [ "/us/513/0064-01" ] }, { "cite": "18 U.S.C. \u00a7 875", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "454 U.S. 516", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6189832 ], "weight": 2, "year": 1982, "pin_cites": [ { "parenthetical": "quoting Lambert, 355 U.S. at 232, 2 L. Ed. 2d at 233 (Frankfurter, J., dissenting)" }, { "parenthetical": "quoting Lambert, 355 U.S. at 232, 2 L. Ed. 2d at 233 (Frankfurter, J., dissenting)" } ], "opinion_index": 0, "case_paths": [ "/us/454/0516-01" ] }, { "cite": "554 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "632", "parenthetical": "stating that \"this Court's review of the Court of Appeals decision is limited to the issues raised by [the] defendants' petition for discretionary review\" because the plaintiffs had failed to file their own discretionary review petition or a conditional discretionary review petition" } ], "opinion_index": 0 }, { "cite": "354 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138533 ], "year": 2001, "pin_cites": [ { "page": "331-32" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0327-01" ] }, { "cite": "7 U.S.C. \u00a7 2024", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 1977, "pin_cites": [ { "page": "(b)(1)" }, { "page": "420-21" } ], "opinion_index": 0 }, { "cite": "187 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "714" } ], "opinion_index": 0 }, { "cite": "281 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573594 ], "year": 1972, "pin_cites": [ { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0001-01" ] }, { "cite": "268 U.S. 276", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 13118 ], "weight": 2, "year": 1925, "pin_cites": [ { "page": "283", "parenthetical": "\"All persons are charged with knowledge of the provisions of statutes and must take note of the procedure adopted by them.\"" }, { "page": "957", "parenthetical": "\"All persons are charged with knowledge of the provisions of statutes and must take note of the procedure adopted by them.\"" } ], "opinion_index": 0, "case_paths": [ "/us/268/0276-01" ] }, { "cite": "472 U.S. 115", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1512392 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "130" }, { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/us/472/0115-01" ] }, { "cite": "214 U.S. 138", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3649067 ], "weight": 3, "year": 1909, "pin_cites": [ { "page": "149" }, { "page": "945" }, { "page": "228" } ], "opinion_index": 0, "case_paths": [ "/us/214/0138-01" ] }, { "cite": "218 U.S. 57", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8285700 ], "weight": 2, "year": 1910, "pin_cites": [ { "page": "68" }, { "page": "935" } ], "opinion_index": 0, "case_paths": [ "/us/218/0057-01" ] }, { "cite": "498 U.S. 192", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6221945 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "199" }, { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/us/498/0192-01" ] }, { "cite": "359 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794414 ], "weight": 5, "year": 2005, "pin_cites": [ { "page": "568" }, { "page": "566" }, { "page": "561-63" }, { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0554-01" ] }, { "cite": "2012 OK CR 16", "category": "reporters:neutral", "reporter": "OK CR", "case_ids": [ 6979288 ], "weight": 4, "year": 2012, "pin_cites": [ { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/p3d/292/0512-01" ] }, { "cite": "752 S.E.2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2013, "opinion_index": 0 }, { "cite": "367 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4333595, 4328491, 4329822 ], "year": 2013, "opinion_index": 0, "case_paths": [ "/nc/367/0271-01", "/nc/367/0271-02", "/nc/367/0271-03" ] }, { "cite": "742 S.E.2d 346", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "opinion_index": 0 }, { "cite": "227 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4221040 ], "year": 2013, "opinion_index": 0, "case_paths": [ "/nc-app/227/0354-01" ] }, { "cite": "772 S.E.2d 434", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2015, "pin_cites": [ { "page": "439", "parenthetical": "discussing State v. Coleman, 227 N.C. App. 354, 742 S.E.2d 346, disc. rev. denied, 367 N.C. 271, 752 S.E.2d 466 (2013)" }, { "page": "437", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "368 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12187402 ], "weight": 2, "year": 2015, "pin_cites": [ { "page": "52", "parenthetical": "discussing State v. Coleman, 227 N.C. App. 354, 742 S.E.2d 346, disc. rev. denied, 367 N.C. 271, 752 S.E.2d 466 (2013)" }, { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/nc/368/0044-01" ] }, { "cite": "675 S.E.2d 709", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "711" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 765", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4166875 ], "year": 2009, "pin_cites": [ { "page": "768" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0765-01" ] }, { "cite": "679 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "900", "parenthetical": "quoting N.C. Dep't of Revenue v. Hudson, 196 N.C. App. 765, 768, 675 S.E.2d 709, 711 (2009)" } ], "opinion_index": 0 }, { "cite": "198 N.C. App. 500", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4169238 ], "year": 2009, "pin_cites": [ { "page": "506", "parenthetical": "quoting N.C. Dep't of Revenue v. Hudson, 196 N.C. App. 765, 768, 675 S.E.2d 709, 711 (2009)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/198/0500-01" ] }, { "cite": "524 U.S. 184", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11181885 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "194-95" }, { "page": "207" } ], "opinion_index": 0, "case_paths": [ "/us/524/0184-01" ] }, { "cite": "471 U.S. 419", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204090 ], "weight": 10, "year": 1985, "pin_cites": [ { "page": "426" }, { "page": "440" }, { "page": "423" }, { "page": "438" }, { "page": "423" }, { "page": "438", "parenthetical": "alteration in original" }, { "page": "437" } ], "opinion_index": 0, "case_paths": [ "/us/471/0419-01" ] }, { "cite": "96 L. Ed. 288", "category": "reporters:federal", "reporter": "L. Ed.", "weight": 2, "year": 1952, "pin_cites": [ { "page": "292, 304" } ], "opinion_index": 0 }, { "cite": "342 U.S. 246", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 641097 ], "weight": 2, "year": 1952, "pin_cites": [ { "page": "248, 271" } ], "opinion_index": 0, "case_paths": [ "/us/342/0246-01" ] }, { "cite": "355 U.S. 225", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6164227 ], "weight": 28, "year": 1957, "pin_cites": [ { "page": "229" }, { "page": "232" }, { "page": "228" }, { "page": "231" }, { "page": "226-27" }, { "page": "230-31" }, { "page": "227" }, { "page": "231" }, { "page": "227" }, { "page": "231" }, { "page": "228" }, { "page": "231", "parenthetical": "citations omitted" }, { "page": "228" }, { "page": "231" }, { "page": "231" }, { "page": "231" }, { "page": "229" }, { "page": "232" }, { "page": "229" }, { "page": "232" }, { "page": "229" }, { "page": "232" }, { "page": "228-29" }, { "page": "231-32", "parenthetical": "emphasis added" }, { "page": "232" }, { "page": "233", "parenthetical": "Frankfurter, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/us/355/0225-01" ] }, { "cite": "2013 N.C. Sess. Laws 291", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "weight": 2, "opinion_index": 0 }, { "cite": "776 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12643722, 12643723, 12643724 ], "year": 2015, "opinion_index": 1, "case_paths": [ "/se2d/776/0854-01", "/se2d/776/0854-02", "/se2d/776/0854-03" ] }, { "cite": "614 S.E.2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633154 ], "weight": 18, "year": 2005, "pin_cites": [ { "page": "480" }, { "page": "556-57" }, { "page": "481", "parenthetical": "emphasis omitted" }, { "parenthetical": "emphasis omitted" }, { "page": "557-58" }, { "page": "481-82" }, { "page": "558" }, { "page": "482" }, { "page": "558" }, { "page": "482" }, { "page": "564" }, { "page": "485" }, { "page": "568-69" }, { "page": "487-88" }, { "page": "568" }, { "page": "488", "parenthetical": "citations omitted" }, { "page": "488" } ], "opinion_index": 1, "case_paths": [ "/se2d/614/0479-01" ] }, { "cite": "78 S. Ct. 243", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 1 }, { "cite": "368 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12205123, 12205062, 12204970, 12205037, 12205105, 12205075, 12205015, 12205144, 12204987 ], "year": 2015, "opinion_index": 1, "case_paths": [ "/nc/368/0353-08", "/nc/368/0353-05", "/nc/368/0353-01", "/nc/368/0353-04", "/nc/368/0353-07", "/nc/368/0353-06", "/nc/368/0353-03", "/nc/368/0353-09", "/nc/368/0353-02" ] }, { "cite": "770 S.E.2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2015, "pin_cites": [ { "page": "141" } ], "opinion_index": 1 }, { "cite": "240 N.C. App. 465", "category": "reporters:state", "reporter": "N.C. App.", "year": 2015, "pin_cites": [ { "page": "478" } ], "opinion_index": 1 }, { "cite": "359 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794414 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/nc/359/0554-01" ] }, { "cite": "471 U.S. 419", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204090 ], "weight": 3, "year": 1985, "opinion_index": 1, "case_paths": [ "/us/471/0419-01" ] }, { "cite": "355 U.S. 225", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6164227 ], "weight": 21, "year": 1957, "pin_cites": [ { "page": "226" }, { "page": "241-42" }, { "page": "230" }, { "page": "226" }, { "page": "241-42" }, { "page": "230-31" }, { "page": "227, 229-30" }, { "page": "242-44" }, { "page": "231-32" }, { "page": "227-28" }, { "page": "242-43" }, { "page": "231" }, { "page": "228" }, { "page": "243" }, { "page": "231" }, { "parenthetical": "citations omitted" }, { "page": "228-29" }, { "page": "231-32" } ], "opinion_index": 1, "case_paths": [ "/us/355/0225-01" ] } ], "analysis": { "cardinality": 1665, "char_count": 55244, "ocr_confidence": 0.721, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.3412426747659806 }, "sha256": "335a52536fcad249d3e4e456dccbcbcee995ffd9db3ed428ba2980db46c30c07", "simhash": "1:a2a7f52226af8c72", "word_count": 9049 }, "last_updated": "2023-07-14T22:48:28.411797+00:00", "provenance": { "date_added": "2018-10-24", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice BEASLEY joins in this dissenting opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. AUSTIN LYNN MILLER" ], "opinions": [ { "text": "ERVIN, Justice.\nOn 12 June 2013, the General Assembly enacted legislation that, effective 1 December 2013, made it \u201cunlawful for any person\u201d to \u201c[p]ossess a pseudoephedrine product if the person has a prior conviction for the possession or manufacture of methamphetamine,\u201d with any person convicted of this offense to \u201cbe punished as a Class H felon.\u201d Act of June 12,2013, ch. 124, secs. 1, 3, 2013 N.C. Sess. Laws 291, 291-93 (codified at N.C.G.S. \u00a7 90-95(d1)(1)(c)). Prior to the enactment of N.C.G.S. \u00a7 90-95(d1)(1)(c), any person aged eighteen or older was entitled to purchase \u201cat retail\u201d up to \u201c3.6 grams of any pseudoephedrine products[] per calendar day\u201d and up to \u201c9 grams of pseudoephedrine products within any 30-day period,\u201d N.C.G.S. \u00a7 90-113.53 (2015), as long as the purchaser furnished appropriate photo identification and a current valid residential address and signed a form attesting to the validity of his or her personal information and other information that could be accessed by law enforcement officers, see id. \u00a7\u00a7 90 113.52 (2015), 113.53. The ultimate issue presented for our consideration in this case is whether N.C.G.S. \u00a7 90-95(d1)(1)(c), as applied to defendant, worked a deprivation of defendant\u2019s right to due process of law under the federal constitution. After careful consideration of the record evidence in light of the applicable legal principles, we conclude that defendant\u2019s as-applied challenge to the constitutionality of N.C.G.S. \u00a7 90-95(d1)(1)(c) lacks merit and reverse the decision of the Court of Appeals, State v. Miller, _ N.C. App. _, _, 783 S.E.2d 512, 523-24 (2016), to the contrary.\nOn 3 October 2012, Judge R. Stuart Albright entered a judgment in Ashe County File Nos. 12 CrS 248, 11 CrS 50918, 11 CrS 50919, and 11 CrS 50920 sentencing defendant to a term of sixteen to twenty months of imprisonment, with this sentence being suspended and with defendant being placed on supervised probation for a period of thirty-six months, based upon defendant\u2019s convictions for possession of a methamphetamine precursor with the intent to distribute (File No. 12 CrS 248), maintaining a vehicle or dwelling for the purpose of selling or delivering a controlled substance (File No. 11 CrS 50918), possession of methamphetamine (File No. 11 CrS 50919), and possession of drug paraphernalia (File No. 11 CrS 50920). On 5 January 2014, defendant purchased \u201cAllergy Congestion Relief D-ER tabs,\u201d which contained 3.6 grams of pseudoephedrine, from a Walmart pharmacy in Boone. On 7 January 2014, Detective John Hollar of the Watauga County Sheriff\u2019s Office examined the National Precursor Log Exchange, which is an electronic database administered by the National Association of Drug Diversion Investigators that tracks pseudoephedrine purchases, N.C.G.S. \u00a7 90-113.52A (2015), and determined that defendant had made this pseu-doephedrine purchase. In view of the fact that Detective Hollar knew that defendant had previously been convicted of possessing metharn-phetamine, he obtained the issuance of a warrant for defendants arrest. On 4 August 2014, the Watauga County grand jury returned a bill of indictment charging defendant with \u201cpossess [ing] an immediate precursor chemical, pseudoephedrine, having a prior conviction for the possession of methamphetamine, to wit: The defendant was convicted of Possession of Methamphetamine in Ashe County, File Number 11 CRS 50919, on 1 October 2012.\u201d\nOn 4 February 2015, defendant filed a motion in which he requested the trial court to declare N.C.G.S. \u00a7 90-95(d1)(1)(c) unconstitutional on the grounds that punishing him for violating this newly enacted statutory provision contravened his federal due process rights as enunciated in Lambert v. California, 355 U.S. 225, 2 L. Ed. 2d 228 (1957). In support of this contention, defendant argued that N.C.G.S. \u00a7 90-95(d1)(1)(c) had criminalized the otherwise innocent act of possessing a pseudoephed-rine product for a subset of felons to which defendant belonged despite the fact that the purchase of such substances by individuals like defendant had been entirely lawful little more than a month earlier and that the State\u2019s failure to provide adequate notice of this change in law constituted a federal due process violation like that identified in Lambert. In addition, defendant asserted that federal due process principles required that a mens rea or scienter element be imported into N.C.G.S. \u00a7 90-95(d1)(1)(c) in light of Lambert; Morissette v. United States, 342 U.S. 246, 96 L. Ed. 288 (1952); and Liparota v. United States, 471 U.S. 419, 85 L. Ed. 2d 434 (1985). For that reason, in the event that this case proceeded to trial, defendant argued that the trial court would be required to instruct the jury that, in order to return a verdict of guilty, the jury would have to find beyond a reasonable doubt that defendant had the specific intent to violate the law consisting of proof that defendant \u201chad knowledge that it was illegal to purchase [a pseudoephedrine product] because he had a meth[amphetamine] conviction.\u201d\nIn response, the State argued that N.C.G.S. \u00a7 90-95(d1)(1)(c) resembles N.C.G.S. \u00a7 14-415.1, which provides, in pertinent part, that \u201c[i]t shall be unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm or any weapon of mass death and destruction\u201d and which has repeatedly been upheld by North Carolina courts. N.C.G.S. \u00a7 14-415.1(a) (2015). More specifically, the State asserted that N.C.G.S. \u00a7 90-95(dl)(l) (c), like N.C.G.S. \u00a7 14-415.1, merely requires an \u201cintent to act\u201d; that the dangers posed by methamphetamine are similar to those posed by firearms in the possession of felons; and that the similarities between these two statutes demonstrate the constitutionality of N.C.G.S. \u00a7 90-95(dl) (l)(c). Additionally, the State asserted that defendant\u2019s specific intent argument amounted to a claim that \u201cignorance of the law should be an excuse.\u201d At the conclusion of the pretrial hearing, the trial court denied defendant\u2019s motion to declare N.C.G.S. \u00a7 90-95(dl)(l)(c) unconstitutional \u201cwithout prejudice to later arguments at the charging conference as to jury instructions.\u201d\nAt the jury instruction conference held near the conclusion of defendant\u2019s trial, defendant reiterated his request that the trial court instruct the jury concerning the necessity for a showing that he had acted with specific intent to violate the law using the \u201cinstruction from the Liparota case which tracked an earlier federal pattern jury instruction.\u201d Ultimately, the State and defendant agreed that the trial court would instruct the jury utilizing N.C.P.I. Crim. 120.10, which defines intent, 1 N.C.P.I.-Crim. 120.10 (June 2012), and N.C.P.I. Crim. 261.55, which' defines the showing that the State was required to make in order to convict defendant of the substantive offense with which he had been charged, 3 N.C.P.I-Crim. 261.55 (June 2014). In light of that agreement, the trial court instructed the jury that:\nIntent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred. You arrive at the intent of a person by such just and reasonable deductions from the circumstances proven as a reasonably prudent person would ordinarily draw therefrom.\nThe defendant has been charged with the possession of a pseudoephedrine product with a prior conviction of the possession of methamphetamine. For you to find the defendant guilty of this offense, the State must prove two things beyond a reasonable doubt: First, that the defendant possessed a pseudoephedrine product. And, second, that the defendant has a prior conviction for the possession of methamphetamine.\nIf you find from the evidence beyond a reasonable doubt that the defendant possessed a pseudoephedrine product and has a prior conviction for the possession of methamphetamine, then it would be your duty to return a verdict of guilty. If you do not so find, or have a reasonable doubt as to one or more of these things, then it would be your duly to return a verdict of not guilty.\nAt the conclusion of its deliberations, the jury returned a verdict convicting defendant as charged. Based upon the jury\u2019s verdict, the trial court entered a judgment sentencing defendant to a term of six to seventeen months of imprisonment, with this sentence having been suspended and with defendant having been placed on supervised probation for a period of twenty-four months. Defendant successfully sought review of the trial court\u2019s judgment by filing a petition seeking the issuance of a writ of certiorari with the Court of Appeals. Miller, _ N.C. App. at _, 783 S.E.2d at 516.\nIn seeking relief from the trial court\u2019s judgment before the Court of Appeals, defendant argued that N.C.G.S. \u00a7 90-95(dl)(l)(c), as applied to him, violated his due process rights. In support of this contention, defendant argued that, in instances, like this one, in which a state has rendered otherwise innocent and lawful behavior subject to significant criminal penalties, due process considerations require either that scien-ter or mens rea be shown in order to prove guilt or, in the alternative, that the State establish that defendant had fair warning that a previously lawful act was now subject to the criminal sanction. Defendant claimed that he reasonably believed that he had the right to lawfully purchase pseudoephedrine products on 5 January 2014, that he reasonably lacked any knowledge that the law had changed effective 1 December 2013, that he did not intend to violate the law by purchasing an allergy medication, and that punishing him as a felon for purchasing a product containing pseudoephedrine under such circumstances was fundamentally unfair. For that reason, defendant asserted that guilt of the offense made punishable by N.C.G.S. \u00a7 90-95(dl)(l)(c) should require proof that defendant knew that his actions were unlawful or, in the absence of such a scienter or mens rea requirement, that the State\u2019s failure to notify him and other similarly situated individuals that they were prohibited from purchasing products containing pseudoephedrine as a precondition for subjecting them to the criminal sanction for acting in that manner rendered the relevant statutory provision unconstitutional.\nIn response, the State argued that, since N.C.G.S. \u00a7 90-95(dl)(l)(c) does not fall within the narrow category of crimes for which knowledge that the prohibited conduct is unlawful is required, defendant\u2019s ignorance of the prohibited nature of his conduct does not preclude a finding of criminal liability. In the State\u2019s view, N.C.G.S. \u00a7 90-95(d1)(1)(c) is a straightforward and easily understood statutory provision rather than a \u201chighly technical\u201d tax or currency statute of the sort that requires proof that the defendant knew that his or her conduct was unlawful, citing Bryan v. United States, 524 U.S. 184, 194-95, 141 L. Ed. 2d 197, 207 (1998). Moreover, the State argued that the exception to the general rule that proof that the defendant knew of the unlawfulness of his or her conduct is not required in order to establish the defendant\u2019s guilt set out in Lambert only applies in the event that the challenged statutory provision criminalizes \u201cwholly passive\u201d conduct and that defendant\u2019s decision to purchase pseudoephedrine cannot be characterized in that manner. Although proof of defendant\u2019s guilt in this case does require a showing that defendant knew that he had a prior methamphetamine possession conviction and that the substance that he possessed contained pseudoephedrine, the relevant statutory provision cannot be reasonably construed to require proof that defendant knew that it was unlawful for him to possess pseudoephedrine as a precondition for a finding of guilt.\nThe Court of Appeals began its discussion of defendant\u2019s challenges to the trial court\u2019s judgment by noting that the extent, if any, to which the General Assembly intended to include a specific intent or scienter element in N.C.G.S. \u00a7 90-95(d1)(1)(c) depends upon the manner in which the relevant statutory language should be construed. Miller, _ N.C. App. at _, 783 S.E.2d at 516. Given that N.C.G.S. \u00a7 90-95(d1)(1)(c) fails to explicitly provide for a specific intent or mens rea element and that the General Assembly has included such language in defining the other offenses listed under N.C.G.S. \u00a7 90-95(d1), id. at __, 783 S.E.2d at 516-17 (discussing N.C.G.S. \u00a7\u00a7 90-95(d1)(1)(a)-(b) and 90-95(d1)(2)(a)-(b)), the Court of Appeals concluded that the General Assembly had \u201c \u2018 intentionally and purposely\u2019 \u201d excluded \u201can intent element\u201d from N.C.G.S. \u00a7 90-95(d1)(1)(c),id. at _, 783 S.E.2d at 517(quoting State v. Watterson, 198 N.C. App. 500, 506, 679 S.E.2d 897, 900 (2009) (quoting N.C. Dep\u2019t of Revenue v. Hudson, 196 N.C. App. 765, 768, 675 S.E.2d 709, 711 (2009))). Although \u201cany possession of a controlled substance offense contains an implied knowledge element, to wit, that the defendant must know he possesses the controlled substance and must also know the identity of the substance,\u201d id. at_n.3, 783 S.E.2d at 517 n.3 (citing State v. Galaviz-Torres, 368 N.C. 44, 52, 772 S.E.2d 434, 439 (2015) (discussing State v. Coleman, 227 N.C. App. 354, 742 S.E.2d 346, disc. rev. denied, 367 N.C. 271, 752 S.E.2d 466 (2013))), the Court of Appeals concluded that the General Assembly intended for N.C.G.S. \u00a7 90-95(dl)(1)(c) \u201ctobe exactly what its plain language indicates: a strict liability offense without any element of intent,\u201d id. at _, 783 S.E.2d at 517.\nAfter rejecting defendant\u2019s contention that N.C.G.S. \u00a7 90-95(d1)(1) (c) should be construed to require proof that defendant knew that he was not entitled to purchase products containing pseudoephedrine, the Court of Appeals addressed defendant\u2019s as-applied challenge to the constitutionality of that statutory provision. Id. at _, 783 S.E.2d at 517-23. Despite its recognition \u201cthat methamphetamine manufacture and use is a significant law enforcement and public health problem which demands serious criminal penalties,\u201d id. at _, 783 S.E.2d at 519-20, the Court of Appeals concluded that, \u201cin light of... Lambert and Liparota,\" N.C.G.S. \u00a7 90-95(d1)(1)(c) \u201cis unconstitutional as applied to [defendant],\u201d id. at _, 783 S.E.2d at 520, given that \u201c[possession of pseudoephedrine products is an innocuous and entirely legal act for the majority of people in our State, including most convicted felons,\u201d id. at _, 783 S.E.2d at 520, and that \u201cpossessing allergy medications containing pseudoephedrine,\u201d unlike the possession of \u201cillegal drugs,\u201d \u201chand grenades,\u201d or \u201cdangerous acids,\u201d \u201cis an act that citizens, including convicted felons, would reasonably assume to be legal,\u201d id. at _, 783 S.E.2d at 520 (citing Liparota, 471 U.S. at 426, 85 L. Ed. 2d at 440). Prior to the enactment of N.C.G.S. \u00a7 90-95(d1)(1)(c), the statutory provisions regulating the purchase of products containing pseudoephedrine required the provision of notice of the lawfulness of particular purchases at the point of sale, id. at _, 783 S.E.2d at 520; however, violations of N.C.G.S. \u00a7 90-95(d1)(1)(c) can occur without the provision of any such point of sale notice even though such purchases would be lawful \u201cfor most people, including the vast majority of convicted felons,\" id. at _, 783 S.E.2d at 520. \u201cSimply put,\u201d the Court of Appeals reasoned, \u201cthere were no \u2018circumstances which might move one to inquire as to\u2019 a significant change in the [Controlled Substances Act\u2019s] requirements nor any notice to [defendant] that the new [provision] had transformed an innocent act previously legal for him into a felony.\u201d Id. at _, 783 S.E.2d at 520 (quoting Lambert, 355 U.S. at 229, 2 L. Ed. 2d at 232). In reaching this conclusion, the Court of Appeals found the decision in Wolf v. State of Oklahoma, 2012 OK CR 16, 292 P.3d 512 (Okla. Crim. App. 2012), cert. denied, _ U.S. __, 186 L. Ed. 2d 877 (2013), to be highly persuasive, Miller, _ N.C. App. at _, 783 S.E.2d at 520-21, concluding, in reliance upon Wolf, that\n[t]aken together, Lambert and Liparota suggest that, while a legislature may criminalize conduct in itself, with no intent requirement, the legislature must make some provision to inform a person that the conduct, as applied to her, is criminal. This is particularly important where the conduct in question is otherwise legal. This is precisely the circumstance here: some convicted felons are prohibited from purchasing pseudoephedrine, while others, along with the general population, are not.\nId. at _, 783 S.E.2d at 521 (alteration in original) (quoting Wolf, 2012 OK CR at \u00b6 10, 292 P.3d at 516). As a result, the Court of Appeals held that N.C.G.S. \u00a7 90-95(d1)(1)(c) is unconstitutional \u201cas applied to a defendant in the absence of notice to the subset of convicted felons whose otherwise lawful conduct is criminalized thereby or proof beyond a reasonable doubt by the State that a particular defendant was aware that his possession of a pseudoephedrine product was prohibited by law,\u201d id. at_, 783 S.E.2d at 521, and that defendant\u2019s conviction for violating N.C.G.S. \u00a7 95-90(d1)(1)(c) should, for that reason, be vacated, id. at _, 783 S.E.2d at 523-24. On 9 June 2016, we allowed the State\u2019s petition for discretionary review of the Court of Appeals\u2019 decision that N.C.G.S. \u00a7 90-95(d1)(1)(c) is unconstitutional as applied to defendant on notice-related grounds.\nIn seeking relief from the decision of the court below before this Court, the State argues that the Court of Appeals disregarded the well-established legal principle that ignorance of the law is no excuse by misapplying the Lambert exception and misconstruing decisions such as Liparota in order to limit the otherwise applicable maxim that members of the public have notice of the applicable law to situations in which a reasonable person would know the content of the law. In the State\u2019s view, this case is controlled by Lambert and this Court\u2019s decision in State v. Bryant, 359 N.C. 554, 614 S.E.2d 479 (2005), in which we described Lambert as creating \u201ca narrow exception to the general rule\u201d to the effect that citizens are presumed to know the law applicable in situations when the allegedly unlawful conduct is \u201c \u2018wholly passive.\u2019 \u201d Id. at 566, 614 S.E.2d at 487 (quoting Lambert, 355 U.S. at 228, 2 L. Ed. 2d at 231). In order to take advantage of this exception, the defendant must establish that the statutory provision in question criminalizes a failure to act, such as the failure to register as a felon at issue in Lambert and the failure to register as a sex offender at issue in Bryant. In the State\u2019s view, defendant was not prosecuted for a failure to act. On the contrary, N.C.G.S. \u00a7 90-95(dl)(l)(c) proscribes an affirmative act, which is the intentional possession of a prohibited substance. As defendant conceded before the trial court, his conduct was \u201cnot an absence to act like there is in Lambert.\u201d In the event that a defendant fails to establish that his behavior is \u201cwholly passive,\u201d whether because the relevant conduct does not involve a failure to act, as is the situation in this case, or because the defendant\u2019s failure to act occurred under circumstances that would lead a reasonable person to inquire as to his or her legal duties, as was the case with the defendant\u2019s duty to register as a sex offender in North Carolina at issue in Bryant, the maxim that ignorance of the law provides no excuse and that all citizens are presumed to know the law remains applicable. Instead of correctly applying the narrow Lambert exception in accordance with this Court\u2019s decision in Bryant, the Court of Appeals created an inappropriate notice requirement resting upon a failure to distinguish between an affirmative action and purely passive conduct and conflating the analysis set out in Lambert with the analysis utilized in statutory construction cases such as Liparota.\nIn response, defendant contends that the proper resolution of the critical question concerning whether an act is \u201cwholly passive\u201d for purposes of Lambert and Bryant hinges upon whether the surrounding circumstances would put a reasonable person on notice that he or she should have inquired as to whether there had been a change in law rather than upon whether the underlying conduct should be deemed active or passive. Defendant argues that Lambert and Bryant rest upon a distinction between \u201cactive and passive notice, that is, the presence or absence of \u2018circumstances that should alert the doer to the consequences of his deed,\u2019 \u201d rather than upon a distinction between acts of commission and acts of omission. According to defendant, his conduct should be deemed \u201cwholly passive\u201d given the absence of \u201ccircumstances that would [have] move[d] him to inquire if the General Assembly had recently criminalized his otherwise innocuous conduct.\u201d Moreover, even if a defendant\u2019s underlying conduct is a component of the relevant constitutional analysis, possession, as compared to the purchase, of a substance is a passive act.\nIn the alternative, defendant contends that, even if we \u201cdecline [ ] to adopt the analysis of the Court of Appeals,\u201d we should still affirm the result that it reached on the grounds \u201cthat an element of scienter must be read into [N.C.G.S.] \u00a7 90-95(dl)(l)(c) to comport with traditional notions of fair play and substantial justice, and the State failed to present evidence from which a jury could infer such an element.\u201d According to defendant, the Court of Appeals should have held that proof of defendant\u2019s \u201cawareness that a reasonable person in his' shoes would have[ known] that the purchase of pseudoephedrine was an illegal act\u201d constituted an essential element of the offense created by N.C.G.S. \u00a7 90-95(dl)(l)(c). In reaching a contrary conclusion, the Court of Appeals overlooked the fact that the United States Supreme Court has read a similar requirement into various criminal statutes for the purpose of ensuring the constitutionality of the challenged statute regardless of any evidence concerning actual Congressional intent.\nAs this Court indicated in Bryant, the Lambert exception to the general rule that ignorance of the law is no excuse is \u201cdecidedly narrow.\u201d 359 N.C. at 568, 614 S.E.2d at 488. After carefully reviewing the record, we conclude that the Lambert exception does not operate to protect defendant from criminal liability given the facts contained in the present record. Moreover, defendant\u2019s alternative argument to the effect that guilt of the offense defined in N.C.G.S. \u00a7 90-95(dl)(l)(c) requires proof that the defendant knew of the illegality of his conduct is not properly before us. Thus, we reverse the decision of the Court of Appeals.\nThe general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system. Based on the notion that the law is definite and knowable, the common law presumed that every person knew the law. This common-law rule has been applied by the Court in numerous cases construing criminal statutes.\nBryant, 359 N.C. at 566, 614 S.E.2d at 487 (citations omitted) (quoting Cheek v. United States, 498 U.S. 192, 199, 112 L. Ed. 2d 617, 628 (1991)). In Lambert, the United States Supreme Court sustained an as-applied challenge to a municipal ordinance making it unlawful for any individual who had been convicted of an offense that was a California felony or would have been a felony if committed in California to remain in Los Angeles for more than five days without registering with the Chief of Police. Lambert, 355 U.S. at 226-27, 2 L. Ed. 2d at 230-31. After noting that the defendant, unlike defendant in this case, had presented proof that she \u201chad no actual knowledge of the [registration] requirement\u201d and that the relevant ordinance did not require proof of \u201cwillfulness,\u201d id. at 227, 2 L. Ed. 2d at 231, the United States Supreme Court stated that the relevant issue before it was \u201cwhether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge,\u201d id. at 227, 2 L. Ed. 2d at 231. Recognizing that, as a general proposition, lawmakers have wide latitude in defining the scope and extent of prohibited conduct, the Court pointed out that the defendant\u2019s \u201cconduct [was] wholly passive\u2014mere failure to register\u201d and did not constitute \u201cthe commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed.\u201d Id. at 228, 2 L. Ed. 2d at 231 (citations omitted). Although the Court acknowledged the rule that \u201cignorance of the law will not excuse,\u201d id. at 228, 2 L. Ed. 2d at 231 (quoting Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 68, 54 L. Ed. 930, 935 (1910)), and that the police power is \u201cone of the least limitable\u201d powers of government, id. at 228, 2 L. Ed. 2d at 231 (quoting District of Columbia v. Brooke, 214 U.S. 138, 149, 53 L. Ed. 941, 945 (1909)), the Court pointed out that due process conditions the exercise of governmental authority upon the existence of proper notice \u201cwhere a person, wholly passive and unaware of any criminal wrongdoing, is brought to the bar of justice for condemnation in a criminal case,\u201d id. at 228, 2 L. Ed. 2d at 231. In view of the fact that the ordinance at issue in Lambert did not condition a finding of guilt upon \u201cany activity\u201d whatsoever, id. at 229, 2 L. Ed. 2d at 232, and the fact that there were no surrounding \u201ccircumstances which might move one to inquire as to the necessity of registration,\u201d id. at 229, 2 L. Ed. 2d at 232, \u201cactual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply [were] necessary before a conviction under the ordinance [could] stand\u201d consistently with due process guarantees, id. at 229, 2 L. Ed. 2d at 232.\nThe statutory provision at issue in Bryant required individuals convicted of certain sexual offenses in other states to register as a sex offender with the relevant North Carolina sheriffs office within ten days after establishing residence in North Carolina or within fifteen days after the individual in question had entered North Carolina, whichever came first, with any person failing to comply with these requirements to be subject to criminal penalties. 359 N.C. at 561-63, 614 S.E.2d at 483-85. In that case, a person who had been convicted of committing an offense requiring registration in South Carolina and had been charged with violating the statutory provision in question challenged the provision\u2019s constitutionality as applied to him given the absence of any requirement that the State \u201cprove actual or probable notice of his duty to register to satisfy the due process notice requirement of Lambert.'\" Id. at 565, 614 S.E.2d at 486. In rejecting the defendant\u2019s argument, this Court stated that\nto be entitled to relief under the decidedly narrow Lambert exception, a defendant must establish that his conduct was \u201cwholly passive\u201d such that \u201ccircumstances which might move one to inquire as to the necessity of registration are completely lacking\u201d and that [the] defendant was ignorant of his duty to register and there was no reasonable probability that [the] defendant knew his conduct was illegal.\nId. at 568, 614 S.E.2d at 488 (quotingLambert, 355 U.S. at 228-29, 2 L. Ed. 2d at 231-32 (emphasis added)). Defendant\u2019s assertion to the contrary notwithstanding, this Court never indicated in Bryant that the distinction between active and passive conduct set out in Lambert revolves around the nature and extent of the notice with which the defendant had been provided rather than upon the nature and extent of the underlying conduct that led to the imposition of the criminal sanction. Instead, this Court simply assumed that the defendant\u2019s conduct amounted to a failure to act and proceeded to examine the extent to which his failure to comply with North Carolina\u2019s sex offender registration requirements had occurred under circumstances suggesting that he should have registered upon moving from South Carolina to North Carolina. Id. at 566-68, 614 S.E.2d at 486-88. After making no suggestion that the defendant had actual notice of the necessity that he register as a sex offender in North Carolina after moving to this state and after concluding that the defendant\u2019s case was \u201crich with circumstances that would move the reasonable individual to inquire of his duty to register in North Carolina such that [the] defendant\u2019s conduct was not wholly passive sad Lambert [was] not controlling,\u201d id. at 568, 614 S.E.2d at 488, this Court held that the defendant\u2019s case did \u201cnot fall within the narrow Lambert exception to the general rule that ignorance of the law is no excuse,\u201d id. at 569, 614 S.E.2d at 488.\nThus, because \u201c [generally[,] a legislature need do nothing more than enact and publish the law, and afford the citizenry a reasonable opportunity to familiarize itself with its terms and to comply,\u201d Texaco, [Inc. v. Short,] 454 U.S. [516,] 532, 70 L. Ed. 2d [738,] 752 [ (1982), this Court remained] bound by the rule that \u201c[a]ll citizens are presumptively charged with knowledge of the law.\u201d Atkins v. Parker, 472 U.S. 115, 130, 86 L. Ed. 2d 81, 93 (1985); see also N. Laramie Land Co. v. Hoffman, 268 U.S. 276, 283, 69 L. Ed. 953, 957 (1925) (\u201cAll persons are charged with knowledge of the provisions of statutes and must take note of the procedure adopted by them.\u201d).\nId. at 569, 614 S.E.2d at 488-89 (first and seventh alterations in original). As a result, Bryant establishes that, in the event that a defendant\u2019s conduct is not \u201cwholly passive,\u201d because it arises from either the commission of an act or a failure to act under circumstances that reasonably should alert the defendant to the likelihood that inaction would subject him or her to criminal liability, Lambert simply does not apply.\nA defendant commits the offense delineated in N.C.G.S. \u00a7 90-95(d1) (1)(c) in the event that he or she has \u201cthe power and intent to control [the] disposition or use\u201d of the substance that the defendant is charged with possessing, State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972), with knowledge of the identity of the substance that the defendant is alleged to have possessed, Galaviz-Torres, 368 N.C. at 49, 772 S.E.2d at 437 (citation omitted). The undisputed evidence contained in the present record tends to show that defendant actively procured the pseudoephedrine product that he was convicted of possessing over a month after it had become unlawful for him to do so and almost six months after the enactment of N.C.G.S. \u00a7 90-95(d1)(1)(c). Moreover, defendant has not argued in either this Court or the lower courts that he was ignorant of the fact that he possessed a pseudoephedrine product or that he had previously been convicted of methamphetamine possession. As defendant himself acknowledged, his conduct differs from the failure to register at issue in Lambert and Bryant. Since defendant\u2019s conviction rests upon his own active conduct rather than a \u201cwholly passive\u201d failure to act, there is no need for us to determine whether the surrounding circumstances should have put defendant on notice that he needed to make inquiry into his ability to lawfully purchase products containing pseudoephedrine. As a result, defendant\u2019s as-applied challenge to the constitutionality of N.C.G.S. \u00a7 90-95(d1)(1)(c) necessarily fails.\nLiparota and other similar decisions, whether considered in conjunction with or in addition to Lambert, do not call for a different result. In Liparota, the United States Supreme Court considered what \u201cmental state, if any, that the Government\u201d needed to show, 471 U.S. at 423, 85 L. Ed. 2d at 438, in order to establish that the defendant had violated a federal statute making it a crime to \u201cknowingly\u201d use, transfer, acquire, alter, or possess food stamps \u201c \u2018in any manner not authorized by [the statute] or the regulations,\u2019 \u201d id. at 423, 85 L. Ed. 2d at 438 (alteration in original) (quoting 7 U.S.C. \u00a7 2024(b)(1) (1977)), with the specific issue before the Court in that case being whether the term \u201cknowingly\u201d should be construed so as to require the Government to prove that the defendant was aware that he was acting in a manner not authorized by the applicable law, id. at 420-21, 85 L. Ed. 2d at 437. As a result, Liparota, like a number of the other decisions upon which defendant relies, is a statutory construction case rather than one, like Lambert, in which the constitutionality of a statute was at issue. While these cases are arguably pertinent to defendant\u2019s statutory construction argument, they have no bearing on the constitutionality of N.C.G.S. \u00a7 90-95(d1)(1)(c) in the face of defendant\u2019s Lambert-based challenge. However, since neither defendant nor the State sought review of the Court of Appeals\u2019 determination that the offense defined in N.C.G.S. \u00a7 90-95(dl)(l)(c) does not include any sort of scienter or specific intent requirement over and above the knowledge requirement necessary for guilt of any possession-based offense by either noting an appeal or filing a discretionary review petition, defendant\u2019s statutory construction argument is not properly before us. See N.C. R. App. P. 16(a) (stating that \u201c[r]eview by the Supreme Court after a determination by the Court of Appeals, whether by appeal of right or by discretionary review, is to determine whether there is error of law in the decision of the Court of Appeals\u201d and that, \u201c[e]xcept when the appeal is based solely upon the existence of a dissent in the Court of Appeals, review in the Supreme Court is limited to consideration of the issues stated in the notice of appeal filed pursuant to Rule 14(b)(2) or the petition for discretionary review and the response thereto filed pursuant to Rule 15(c) and (d), unless further limited by the Supreme Court, and properly presented in the new briefs required by Rules 14(d) (1) and 15(g)(2) to be filed in the Supreme Court\u201d); see also Estate of Fennell v. Stephenson, 354 N.C. 327, 331-32, 554 S.E.2d 629, 632 (2001) (stating that \u201cthis Court\u2019s review of the Court of Appeals decision is limited to the issues raised by [the] defendants\u2019 petition for discretionary review\u201d because the plaintiffs had failed to file their own discretionary review petition or a conditional discretionary review petition). As a result, given that defendant has failed to establish that his conduct in possessing pseudoephedrine was \u201cwholly passive,\u201d Bryant, 359 N.C. at 568, 614 S.E.2d at 488, we hold that defendant\u2019s conviction for violating N.C.G.S. \u00a7 95-90(d1)(1)(c) did not result in a violation of his federal constitutional right to due process of law and, accordingly, reverse the decision of the Court of Appeals.\nREVERSED.\n. The Governor approved the new statutory provision on 19 June 2013.\n. A \u201cpseudoephedrine product\u201d is \u201ca product containing any detectable quantity of pseudoephedrine or ephedrine base, their salts or isomers, or salts of their isomers.\u201d N.C.G.S. \u00a7 90-113.51(a) (2015).\n. The statutory purchase limits do not apply \u201cif the product is dispensed under a valid prescription.\u201d Id. \u00a7 90413.53(a), (b).\n. Although the dates associated with defendant\u2019s conviction for methamphetamine possession set out in the indictment and delineated in the evidence differ, defendant did not argue in the Court of Appeals that this divergence between allegation and proof constituted a fatal variance entitling him to dismissal of the charge that had been lodged against him.\n. The exact nature of defendant\u2019s statutory construction challenge to the trial court\u2019s judgment is not entirely clear. Although defendant could have advanced this contention in support of an argument that the trial court had erred by failing to dismiss the charge that had been lodged against him for insufficiency of the evidence, an argument that the trial court had erroneously instructed the jury concerning the applicable law, or an argument that N.C.G.S. \u00a7 90-95(dl)(l)(c) could only be upheld against a constitutional challenge in the event that the relevant statutory provision was construed so as to include such a scienter or mens rea requirement, defendant did not clearly make any one of these three arguments.\n. Moreover, as the United States Supreme Court has stated, \u201capplication [of Lambert] has been limited, lending some credence to Justice Frankfurter\u2019s colorful prediction in dissent that the case would stand as \u2018an isolated deviation from the strong current of precedents\u2014a derelict on the waters of the law.\u2019 \u201d Texaco, Inc. v. Short, 454 U.S. 516, 537 n.33, 70 L. Ed. 2d 738, 756 n.33 (1982) (quoting Lambert, 355 U.S. at 232, 2 L. Ed. 2d at 233 (Frankfurter, J., dissenting)).\n. For example, see Elonis v. United States, _ U.S. _, _, _, 192 L. Ed. 2d 1, 8, 17 (2015) (interpreting a federal statute making \u201cit a crime to transmit in interstate commerce \u2018any communication containing any threat... to iiyure the person of another\u2019 \u201d as requiring proof that the defendant intended to issue threats or knew that his communications would be viewed as threats (ellipsis in original) (quoting 18 U.S.C. \u00a7 875(c) 1994))); United States v. X-Citement Video, Inc., 513 U.S. 64, 68, 78, 130 L. Ed. 2d 372, 378, 385 (1994) (interpreting a federal statute prohibiting persons from \u201cknowingly\u201d transporting, shipping, receiving, distributing, or reproducing a visual depiction, if such depiction \u201c \u2018involves the use of a minor engaging in sexually explicit conduct,\u2019 \u201d to require proof that the defendant knew of the sexually explicit nature of the material and the age of the individuals depicted in the video (quoting 18 U.S.C. \u00a7 2252(a)(1)(A), -(a)(2)(A) (1988 ed. and Supp. V))); Morissette, 342 U.S. at 248, 271, 96 L. Ed. at 292, 304 (interpreting a federal statute providing that \u201c \u2018whoever embezzles, steals, purloins, or knowingly converts\u2019 \u201d property of the federal government shall be fined and imprisoned to require that the defendant have \u201cknowledge of the facts, though not necessarily the law, that made the taking a conversion\u201d (quoting 18 U.S.C. \u00a7 641 (1948))).", "type": "majority", "author": "ERVIN, Justice." }, { "text": "Justice MORGAN\ndissenting.\nWhile I agree with my learned colleagues in the majority that the Court of Appeals\u2019 interpretation of the applicability of Liparota v. United States, 471 U.S. 419, 105 S. Ct. 2084, 85 L. Ed. 2d 434 (1985) is misplaced, nonetheless I embrace the lower court\u2019s view that the narrow exception to the time-honored adage \u201cignorance of the law will not excuse\u201d as articulated in Lambert v. California, 355 U.S. 225, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957) is applicable in the instant case regarding the propemess of notice and due process. In addition, I consider the majority\u2019s interpretation of the phrase \u201cwholly passive\u201d as originally coined in Lambert and applied by this Court in State v. Bryant, 359 N.C. 554, 614 S.E.2d 479 (2004), superseded by statute, 2006 N.C. Sess. Laws, Ch. 247, on other grounds as recognized in State v. Moore, 240 N.C. App. 465, 478, 770 S.E.2d 131, 141, disc. review denied, 368 N.C. 353, 776 S.E.2d 854 (2015) to be rigidly restrictive, particularly in light of this Court\u2019s own construction of this phrase in Bryant, and therefore I dissent.\nIn Lambert, a criminal defendant was found guilty of violating a registration provision of Los Angeles, California\u2019s Municipal Code because, as a person who had been \u201cconvicted of an offense punishable as a felony in the State of California,\u201d she \u201cremain[ed] in Los Angeles for a period of more than five days without registering\u201d with the city\u2019s Chief of Police. Lambert, 355 U.S. at 226, 78 S. Ct. at 241-42, 2 L. Ed. 2d at 230. As a resident of Los Angeles for over seven years at the time of her arrest on suspicion of another offense, the defendant argued that her due process rights under the United States Constitution were violated with regard to the application of the city\u2019s registration law to her, because she had no actual knowledge of the requirement to register pursuant to the Los Angeles Municipal Code. Id. at 226, 78 S. Ct. at 241-42, 2 L. Ed. 2d at 230-31. In framing the legal issue in this case as a question of \u201cwhether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge,\u201d the nation\u2019s highest court held that the Code\u2019s registration provision as applied to the defendant violated the Due Process Clause of the Fourteenth Amendment. Id. at 227, 229-30, 78 S. Ct. at 242-44, 2 L. Ed. 2d at 231-32.\nDefendant in the case sub judice cited the Lambert case as persuasive authority to support his position addressed by this dissent that his federal due process rights were violated by the application of the statute at issue to him because of his lack of proper notice of then newly-enacted N.C.G.S. \u00a7 90-95(dl)(l)(c), which had taken effect barely a month before defendant\u2019s proscribed pseudoephedrine purchase. Pursuant to the statute, his possession of such a substance was illegal in light of his prior methamphetamine convictions. Regarding the application of constitutional due process principles to the operation of statutes that create an imposition upon individuals convicted of a certain class of offenses that does not exist for the general population, I find the defendant in Lambert and the current defendant to be similarly situated. In Lambert, the defendant was required by law to register as a convicted felon if her stay in the city exceeded five days, which was not a registration requirement imposed on others; here, defendant was required by law to refrain from possessing pseudoephedrine as a person convicted of methamphetamine offenses, which was not a possession restriction imposed on others.\nI also find that the defendant in the case at bar is similarly situated to the Lambert defendant in the resolution of the legal issue in Lambert which was ideally identified by the United States Supreme Court. The high court found, in applying its due process analysis to the dual components of the framed issue in Lambert, that the Los Angeles Municipal Code registration provision violated that defendant\u2019s due process rights because she had no knowledge of the duty to register and there was no showing made by the prosecution as to the probability of such knowledge by the defendant. Id. at 227-28, 78 S. Ct. at 242-43, 2 L. Ed. 2d at 231. While citing the phrase \u201cignorance of the law will not excuse,\u201d the United States Supreme Court conversely recognized that the exercise of this legal axiom is limited by due process considerations. Id. at 228, 78 S. Ct. at 243, 2 L. Ed. 2d at 231. The Court went on to explain:\nEngrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a forfeiture might be suffered for mere failure to act. Recent cases illustrat[e] th[is] point .... These cases involved only property interests in civil litigation. But the principle is equally appropriate where a person, wholly passive and unaware of any wrongdoing, is brought to the bar of justice for condemnation in a criminal case.\nId. (citations omitted).\nI find these observations to be pertinent and applicable to the present case, just as the United States Supreme Court articulated them as insightful direction in Lambert. While ignorance of the law typically will not excuse one from criminal culpability, the operation of this routine legal paradigm must take a proverbial backseat when one\u2019s constitutional due process rights, undergirded by the concept of notice, are otherwise sacrificed. In the instant case, as in Lambert, the defendant has claimed that he had no knowledge of the law at issue when he purchased pseudoephedrine on 5 January 2014 and was therefore in unlawful possession of the medication which otherwise would have been in his lawful possession if the purchase had been made prior to the 1 December 2013 change in the law which did not apply to the general population, nor even all convicted felons, but rather only to a particular subset of convicted felons. Also in the present case, like Lambert, there has been no showing made of the probability that defendant knew of this change in the law which rendered illegal for him such activity that was legal for him a mere 36 days prior to his arrest. The majority\u2019s fervent embrace of the maxim that ignorance of the law provides no excuse supplies an untenable compromise of defendant\u2019s due process rights. Indeed, the well-established existence of a law and one\u2019s ignorance of it is markedly different from the newly-created existence of a law and one\u2019s unawareness of it, especially when it is a change in the law to make what was recently lawful suddenly unlawful and when it does not apply to everyone.\nIn my opinion, just as the majority fails to employ an appropriate application of the Lambert principle regarding due process wherein ignorance of the law by a criminal defendant is indisputable, the majority\u2019s unfortunate position is exacerbated by its strained literal interpretation of the phrase \u201cwholly passive\u201d in Lambert. The United States Supreme Court christened the term in Lambert to describe the lack of affirmative conduct by the defendant in that case\u2014the failure to register one\u2019s presence\u2014and to fit it into the framework of an individual\u2019s right to due process through the requirement of notice. The majority has focused so intently upon the \u201cwholly passive\u201d description of the Lambert defendant\u2019s proscribed conduct of failure to register that it is unable to clearly view the fullness of the relationship between due process and the required notice concerning the violation of criminal law.\nThe majority\u2019s position is faulty regarding its literal application of the phrase \u201cwholly passive\u201d on two fronts. Firstly, the United States Supreme Court in Lambert used the defendant\u2019s \u201cwholly passive\u201d failure to register as an example of the broad need to correctly balance constitutional due process with the \u201cignorance of the law will not excuse\u201d axiom. The Court, in its discussion of the concept of due process through the requirement of notice in Lambert, spoke in sweeping terms about the importance of these legal tenets, without mentioning whether or not the illegal conduct involved was an offense of commission of an act or an offense of an omission to act. The high court thereupon applied its global look at these principles to the defendant\u2019s circumstances in Lambert, described her Municipal Code violation of failure to register as behavior which was \u201cwholly passive,\u201d continued its analysis that this failure to register abrogated the breadth and depth of the integration of due process and notice, and ultimately determined that the application of the challenged registration law to the defendant\u2019s \u201cwholly passive\u201d failure to register was unconstitutional. In the case sub judice, the majority\u2019s occupation by the \u201cwholly passive\u201d categorization of the Lambert defendant\u2019s criminal act of omission has prevented it from fully grasping the wider requirement to apply constitutional due process and notice requirements so as to protect defendant\u2019s identical rights in the current case.\nSecondly, this Court utilized the \u201cwholly passive\u201d language in Lambert to both discuss and decide our decision in Bryant. The majority in the instant case heavily relies upon Bryant, a criminal action in which a defendant, who was a convicted sex offender in the state of South Carolina, was notified by the South Carolina Department of Corrections prison officials of his lifelong requirement to register with that state due to his sex offender status. Id. at 556, 614 S.E.2d at 480. Although the defendant was notified of this duty in verbal and written form, he failed to \u201cprovide written notice to the county sheriff where s/he was last registered in South Carolina within 10 days of the change of address to a new state,\u201d when the defendant moved out of the state of South Carolina and relocated in North Carolina. Id. at 556-57, 614 S.E.2d at 481 (emphasis omitted). The defendant likewise was deficient in his compliance with his South Carolina sex offender requirement that he \u201cmust send written notice of change of address to the county Sheriff\u2019s Office in the new county and the county where s/he previously resided within 10 days of moving to a new residence.\u201d Id. (emphasis omitted). Although the defendant moved to Winston-Salem, North Carolina and thereby established a residence in Forsyth County, nonetheless he failed to register upon establishing residency in North Carolina and did not notify the appropriate authorities in South Carolina of his out-of-state move. Id. at 557-58, 614 S.E.2d at 481-82. The defendant was convicted in this state of failing to register as a sex offender and attaining the status of habitual felon. Id. at 558, 614 S.E.2d at 482. On appeal, the defendant argued that North Carolina\u2019s sex offender registration statute was unconstitutional as applied to an out-of-state offender who lacked notice of his duty to register upon moving to North Carolina. Id. at 558, 614 S.E.2d at 482. The defendant relied almost exclusively upon Lambert in arguing his position on appeal to this Court. Id. at 564, 614 S.E.2d at 485. We found in Bryant that the defendant was not entitled to the application of Lambert. Id. at 568-69, 614 S.E.2d at 487-88. In this Court\u2019s decision, we explained:\nWe find this case rich with circumstances that would move the reasonable individual to inquire of his duty to register in North Carolina such that defendant\u2019s conduct was not wholly passive and Lambert is not controlling. First, defendant had actual notice of his lifelong duty to register with the State of South Carolina as a convicted sex offender. Second, defendant had actual notice that he must register as a convicted sex offender in South Carolina for \u201csimilar offenses from other jurisdictions\u201d and had a duty to inform South Carolina officials of a move out of state \u201cwithin 10 days of the change of address to a new state,\u201d which defendant failed to do. Third, defendant himself informed law enforcement authorities that he had been convicted of a sex offense in Florida. These circumstances coupled with the pervasiveness of sex offender registration programs certainly constitute circumstances which would lead the reasonable individual to inquire of a duty to register in any state upon relocation.\nId. at 568, 614 S.E.2d at 488 (citations omitted) (emphasis in original). This explanation extracts pivotal terminology from the instructional language employed by the nation\u2019s Supreme Court in Lambert when it established the mandatory standard, which we expressly cited in Bryant, which I find to be the guiding rationale for adaptation in the present case and which I determine that the defendant has satisfied:\nTherefore, to be entitled to relief under the decidedly narrow Lambert exception, a defendant must establish that his conduct was \u201cwholly passive\u201d such that \u201ccircumstances which might move one to inquire as to the necessity of registration are completely lacking\u201d and that defendant was ignorant of his duty to register and there was no reasonable probability that defendant knew his conduct was illegal. Lambert, 355 U.S. at 228-29, 78 S. Ct. 243-44, 2 L. Ed. 2d at 231-32) (emphasis added).\nId. at 568, 614 S.E.2d at 488. This Court\u2019s additional emphasis indicates that it defined the crucial phrase \u201cwholly passive\u201d as turning on whether the attendant circumstances could reasonably be seen as providing notice.\nWith the majority\u2019s determination that Bryant is controlling authority in the case at bar, it compounds the problematic analysis that it originally employs in the majority\u2019s erroneous premise that the requirement of a \u201cwholly passive\u201d act automatically disqualifies the current defendant from constitutional due process and intrinsic notice requirements where ignorance of the law is an existing circumstance. This compounded misdirection is further accentuated by the recitation of the aspects that are present in Bryant which clearly distinguish it from the case sub judice. While there are a litany of facts and circumstances occurring in Bryant that render the narrow Lambert exception as inapposite to the Bryant defendant, as this Court correctly decided, no such characteristics arise here. Indeed, the defendant in the instant case is deemed not to have had actual notice about the change in the law or the change in his status under the new law governing his ability to legally possess pseudoephedrine. Nor did the defendant here inform law enforcement authorities about any matters that would demonstrate his awareness about the change in the law or the change in his status under the new law. In summarizing the above delineation of factors quoted in Bryant and applying them to the present case, there are no circumstances here which would lead the reasonable individual to know, or even inquire about, a duty to refrain from the possession of pseudoephedrine due to a recent change in the law which turned defendant\u2019s heretofore legal possession of the substance into a criminal offense.\nSince I would find N.C.G.S. \u00a7 90-95(dl)(l)(c) unconstitutional as applied to defendant under these facts and circumstances, consistent with my interpretation of Lambert, and the critical distinguishing features of Bryant, I respectfully dissent.\nJustice BEASLEY joins in this dissenting opinion.", "type": "dissent", "author": "Justice MORGAN" } ], "attorneys": [ "Joshua H. Stein, Attorney General, by Joseph L. Hyde, Assistant Attorney General, for the State-appellant.", "Jeffrey William Gillette for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. AUSTIN LYNN MILLER\nNo. 113PA16\nFiled 9 June 2017\nDrugs\u2014newly enacted statute\u2014unlawful to possess pseudo-ephedrine if prior conviction for methamphetamine possession or manufacture\u2014as-applied challenge\u2014active conduct\nWhere defendant was convicted of violating a newly enacted statute, N.C.G.S. \u00a7 90-95(dl)(l)(c), which made it unlawful for any person with a prior conviction for the possession or manufacture of methamphetamine to possess a pseudoephedrine product, based on his purchase of \u201cAllergy Congestion Relief D-ER tabs,\u201d the Supreme Court held that his conviction did not violate his federal constitutional right to due process of law. His as-applied challenge failed because his conviction rested upon his own active conduct rather than a \u201cwholly passive\u201d failure to act.\nJustice MORGAN dissenting.\nJustice BEASLEY joins in this dissenting opinion.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals,_N.C. App.._, 783 S.E.2d 512 (2016), vacating a judgment entered on 5 February 2015 by Judge Eric C. Morgan in Superior Court, Watauga County. Heard in the Supreme Court on 14 February 2017.\nJoshua H. Stein, Attorney General, by Joseph L. Hyde, Assistant Attorney General, for the State-appellant.\nJeffrey William Gillette for defendant-appellee." }, "file_name": "0658-01", "first_page_order": 734, "last_page_order": 754 }