State v. York
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-1147 NORTH CAROLINA COURT OF APPEALS Filed: 1 April 2014 STATE OF NORTH CAROLINA v. Alamance County No. 12 CRS 52478 KATHY WELLS YORK Appeal by Defendant from judgment entered 2 May 2013 by Judge James E. Hardin, Jr., in Alamance County Superior Court. Heard in the Court of Appeals 5 March 2014. Attorney General Roy Cooper, by Special General Kathryn J. Thomas, for the State. Deputy Attorney Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for Defendant. STEPHENS, Judge. Factual and Procedural Background Defendant Kathy Wells York appeals from the trial court s entry public of judgment officer. following: based The upon evidence her at conviction trial of tended resisting to show a the On 29 April 2012, Defendant and her husband went to a local Belk department store so that Defendant could purchase -2some blouses for an upcoming trip. Defendant had recently gotten eyeglasses with a new prescription, and the glasses were making her nauseated. While shopping, Defendant felt sick and gave several items to her husband to purchase while Defendant went to the store restroom. What occurred next was disputed at trial. According to Defendant, after vomiting in the Defendant washed her face and freshened her makeup. restroom, As she left the restroom, Defendant took a purse from the top of the paper towel holder, purchased assuming several tops it was and left her the own make-up store case. without She incident. Once home, Defendant discovered the purse was not her own. She and her husband found a phone number on the cellphone in the purse and called it. reach a husband. and man who Defendant and her husband were able to identified himself as Michelle Shamberger s Defendant explained that she had Shamberger s purse agreed to return to Belk to give the purse back to version of Shamberger. The these State s events. witnesses Shamberger presented was an a different employee at Belk. She testified that she had left her purse on top of the paper towel holder in the store s restroom while on a break. She noticed -3another woman wash her hands and leave the restroom with her purse. not Shamberger called out to the woman, but the woman did stop. Shamberger worked with a store loss prevention specialist, to determine what had happened to her purse. After reviewing store video tapes, Shamberger identified Defendant as the woman in the bathroom when her purse disappeared. Officers Cameron Leight and Christopher Smith of Burlington Police Department were called to the store. called the cellphone Shamberger had left in her purse. the Smith A woman answered, but when Smith identified himself as a police officer, the call was disconnected. A few minutes later, Leight received a return call from the cellphone that had been in Shamberger s purse. It was Defendant, stating that she had found a purse and cellphone and was going to return them to Belk. When Defendant and her husband pulled up to the sidewalk outside Belk, they saw a man, a woman, and two uniformed police officers, Leight and Smith. Defendant walked toward the woman, who was standing near one of the officers, as the other officer approached the Defendant handed car the nothing was missing. where purse Defendant s to husband Shamberger who was waiting. confirmed that At that point, Leight told Defendant she was under arrest for larceny. Defendant turned, crossed her -4arms, and called out to her husband. Leight testified that Defendant said, No, no, and backed away from him. Leight put Defendant s arms behind her back, handcuffed her, and arrested her. Defendant was charged with misdemeanor misdemeanor resisting a public officer. larceny and At the close of the State s evidence and at the close of all the evidence, Defendant moved to dismiss the charge of resisting a public officer. trial court denied both motions. The The jury acquitted Defendant of larceny, but found her guilty of resisting a public officer. The trial court sentenced Defendant to 30 days in the custody of the Alamance County Sheriff, suspended for 18 months upon her completion of 18 months of supervised probation, payment of a fine, completion of community service hours, and adherence to a ban on contacting Leight or visiting Belk during her probation. This appealed followed. Discussion Defendant argues that the trial court erred in failing to dismiss the charge of resisting a public officer because (1) the State offered no evidence to show that Leight was attempting to make a lawful arrest and (2) Leight s alleged larceny had been completed. investigation We vacate. of the -5The law governing a trial court s ruling on a motion to dismiss is well established. The trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion. In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence. The trial court must also resolve any contradictions in the evidence in the State s favor. The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness[] credibility. State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001) (citations and internal quotation marks omitted), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). The five elements of the offense of resisting a public officer are: 1) that the victim was a public officer; 2) that the defendant knew or reasonable grounds to believe that victim was a public officer; 3) that attempting office; had the the victim was discharging or to discharge a duty of his 4) that the defendant resisted, delayed, or obstructed the victim in discharging or attempting to discharge a duty of his office; and -65) that the defendant acted willfully and unlawfully, that is intentionally and without justification or excuse. State v. Dammons, 159 N.C. App. 284, 294, 583 S.E.2d 606, 612, disc. review denied, 357 N.C. 579, 589 S.E.2d 133 (2003), cert. denied, 541 U.S. 951, 158 L. Ed. 2d 382 (2004). On appeal, Defendant bases her arguments upon an assertion that the State failed to establish element 3, to wit, that Leight was discharging or attempting to discharge a duty of his office when Defendant resisted him. Defendant first contends that Leight s attempt to arrest Defendant was illegal such that she was justified in resisting. This contention is based upon Defendant s assertion that Leight had not observed her alleged offense, misdemeanor larceny, and thus was authorized to arrest her without a warrant only under limited conditions not present here. Unfortunately, Defendant did not make this argument in the trial court. asserting that Rather, Defendant argued for dismissal Defendant did not actually resist, delay, by or obstruct Leight in the course of his performance of his duties. Accordingly, appellate Defendant review. See has not N.C.R. preserved App. P. this argument 10(a)(1). for However, Defendant asks this Court to invoke Rule 2 of our Rules of Appellate Procedure in order to reach the merits of her -7argument, and we elect to exercise our discretion to do so. See N.C.R. App. P. 2 ( To prevent manifest injustice to a party . . . either court of the appellate division may . . . suspend or vary the requirements or provisions of any of these rules in a case pending before it upon application of a party or upon its own initiative, and may order proceedings in accordance with its directions. ). Our General Statutes provide that a law enforcement officer may arrest probable a suspect cause to without believe a warrant the if suspect the has misdemeanor offense in the officer s presence. § 15A-401(b)(1) (2013). not personally officer committed has a N.C. Gen. Stat. In contrast, for misdemeanor offenses witnessed by a law enforcement officer, warrantless arrests are permitted only where the officer has probable cause to think that the suspect 1. Will not be apprehended immediately arrested, or unless 2. May cause physical injury to h[er]self or others, or damage to property unless immediately arrested[.] N.C. Gen. Stat. § 15A-401(b)(2).1 1 The statute also permits the warrantless arrest of suspects for offenses not committed in the officer s presence in the case of a list of specified misdemeanors, none of which is applicable -8 The essential elements of larceny are that the defendant: (1) took the property of another; (2) carried it away; (3) without the owner s consent; and (4) with the intent to deprive the owner of his property permanently. N.C. 225, 233, 287 S.E.2d 810, 815 State v. Perry, 305 (1982) (citations and internal quotation marks omitted), overruled on other grounds by State v. Mumford, 364 N.C. 394, 699 S.E.2d 911 (2010). is undisputed that Defendant did not Shamberger s purse in Leight s presence. take or Here, it carry away Leight was not called to Belk until after Defendant had taken the purse and left Belk. At that point, the alleged offense of misdemeanor larceny had been completed. Accordingly, we must consider whether either condition set forth in section 15A-401(b)(2) was satisfied here. No evidence offered at trial could support a belief by Leight that Defendant was likely to cause physical injury to h[er]self or others, or damage to property unless immediately arrested[.] N.C. Gen. Stat. § 15A-401(b)(2). Defendant had already returned the purse to Shamberger undamaged and with all of its contents intact. here. Id. Nothing suggested that Defendant was -9likely to become violent so as to injure herself, others, or any property. Likewise, the evidence produced at trial reveals no basis which would provide Leight probable cause to believe that Defendant would not be apprehended unless immediately arrested. See id. Leight testified that Defendant called the cellphone in Shamberger s purse, explained what had happened, and promised to return to Belk with the purse. Defendant did then return to Belk, driven by her husband, where she restored the purse with all its contents intact to Shamberger, and responded to all of Leight s questions: Q[.] And did you make [Defendant] when she arrived? contact with A[.] I did. She gave the change purse to Ms. Shamberger. Said, Here I found your purse, and gave it to her. And Ms. Shamberger replied to her. I don t recall exactly what she said. She said something to [Defendant]. At that time, when she handed it to her and stated, Here, I found this, I told [Defendant] that I observed her on camera inside the store and observed her taking the, that she walked out of the store. And she first saying she found it in the parking lot. After I told her that we had video surveillance, she then claimed that it was her wallet or she thought it was her wallet. And she said, Well, I grabbed it by accident. I thought it was my wallet, after telling me that she found it in the parking lot. -10Q[.] In response to her changing her story to saying that she grabbed it by accident, what did you do? A[.] Umm, again I explained to her that the time that I initially got the call that I responded was approximately 6:10. This was a little bit after 8 o clock. The time the incident occurred was about 4:40. So between 4:40 and 8 o clock, you re talking three and a half hours that this had happened. So she returned approximately three and a half hours after the purse had been taken. So I basically told her, you know, I have you on video. I know you didn t find it in the parking lot. And she, that s when she replied, Well, I took it by mistake. I thought it was mine. Q[.] And what happened after that? A[.] At that time, I told her she was under arrest for larceny. Even actions by or Leight s the own account, circumstances nothing indicated a about Defendant s likelihood that Defendant would not be apprehended unless immediately arrested. The State emphasizes that Defendant delayed in returning the purse to Belk and gave inconsistent explanations about where she found the purse.2 2 At most, these facts might provide probable Defendant testified that, after leaving Belk, she and her husband drove to another mall so that Defendant could have a manicure and pedicure for her upcoming trip. After the manicure and pedicure, Defendant and her husband ate dinner at the mall before returning to their home. Defendant did not realize she had picked up Shamberger s purse until she was unpacking her -11cause for Leight to believe that Defendant had indeed committed larceny, but neither is relevant to assessing whether Defendant would likely evade apprehension unless immediately arrested. Circumstances that do appear relevant include that Defendant voluntarily returned to Belk within ten minutes of speaking to Leight on Shamberger s cellphone, was accompanied by her husband, returned the purse, and cooperated with Leight. Prior to Leight s attempt to arrest Defendant, she showed absolutely no sign that she would stop cooperatively answering Leight s questions, much less that she would flee or take steps to avoid later apprehension. It seems more likely that a suspect who did plan to evade apprehension might take simple steps such as disposing of the stolen item and refusing to return to the scene of the alleged crime when requested to do so. Such a suspect might not have her husband drive her to the scene in their car to return the allegedly stolen item, thus providing officers an opportunity to obtain her license plate number. Such a suspect might tell her husband to keep driving once she saw uniformed officers at the scene, rather than to engage in conversation with one of them, thereby giving the officer an opportunity purchases at home. to get a good look at her face and -12possibly transcript ask for does her not identification. indicate that Surprisingly, Leight ever asked the for Defendant s name or address or to see her driver s license prior to placing her under arrest. Had Leight done so, he might have been able to take down sufficient information to feel confident that he could locate Defendant later as needed. Leight never evinced any belief that Defendant Simply put, would likely avoid later apprehension if he did not immediately arrest her, and absolutely belief. Thus, unlawful and nothing in Leight s she was the record attempted lawfully would arrest entitled support of to such Defendant resist a was it. Accordingly, the judgment entered upon Defendant s conviction for resisting a public officer is VACATED. Judges BRYANT and DILLON concur. Report per Rule 30(e).
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