State v. Hidden Valley Kings

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NO. COA14-72 NORTH CAROLINA COURT OF APPEALS Filed: 17 June 2014 STATE OF NORTH CAROLINA On Relation of CITY OF CHARLOTTE, a Municipal Corporation, Plaintiff-Appellee, v. Mecklenburg County No. 13-CVS-14502 HIDDEN VALLEY KINGS aka HVK or ICEE MONEY, WENDELL McCAIN, KEVIN FUNDERBURK and CORDELL BLAIR, Defendants-Appellants. Appeal by Defendant Kevin Funderburk from preliminary injunction entered 26 August 2013 by Judge Richard D. Boner in Superior Court, Mecklenburg County. Heard in the Court of Appeals 3 June 2014. Charlotte-Mecklenburg Police Department, by Assistant City Attorney Richard R. Perlungher and Deputy City Attorney Mark H. Newbold, for Plaintiff-Appellee. Arnold & Smith, PLLC, by L. Bree Laughrun and Kyle Frost, for Defendant Kevin Funderburk. McGEE, Judge. The State of North Carolina, on relation of the City of Charlotte, preliminary ( Plaintiff ) and filed permanent a complaint injunction against and motion Hidden for Valley -2Kings, also known as HVK or ICEE Money, Wendell McCain, Kevin Funderburk, and August 2013. Cordell Blair (together, Defendants ) on 12 In its complaint, Plaintiff cited N.C. Gen. Stat. §§ 14-50.41 et seq., the North Carolina Street Gang Nuisance Abatement Act (hereinafter the Act ) and N.C. Gen. Stat. § 192.1, which provides for an action for abatement of a nuisance. The Act provides: (1) that a gang that regularly engages in criminal street gang activities constitutes a public nuisance, (2) that a trial court may enter an order enjoining a defendant from engaging in criminal street gang activity, and (3) that a trial court may impose other reasonable requirements to prevent the defendant or a gang from engaging in future criminal street gang activities. N.C. Gen. Stat. § 14-50.43(b),(c) (2013). The trial court held a hearing on Plaintiff s motion for preliminary injunction on 22 August 2013. Plaintiff and for Defendant Kevin Counsel for Funderburk both (hereinafter Defendant Funderburk ) were present and gave arguments to the trial court. The trial court found that Plaintiff had no adequate remedy at law to prohibit Defendants from associating together for the purpose street gang activity. without a residents preliminary of the of regularly engaging in criminal The trial court further found that, injunction, Hidden Valley Plaintiff and Neighborhood citizens and and greater -3Charlotte area would suffer irreparable harm from the criminal street gang activity regularly engaged in by Defendants. The trial court also found that Plaintiff demonstrated a likelihood of success on the merits of the case. The trial court ordered that Defendants were restrained and enjoined from the following: a. Engaging in criminal street gang activity as defined in North Carolina Gen. Stat. § 14-50.16(c); b. Driving, standing, sitting, walking, gathering or appearing, anywhere in public view or any place accessible to the public within Mecklenburg County, with any member of the HVK gang that he or she knows to be a member of the HVK gang, including but not limited to those members identified by name in this Preliminary Injunction, except when directly traveling to or from the following locations and where their presence is required: (1) inside a school or other educational facility where they are attending a class or on school business; (2) inside a church or other place of worship; (3) at a location where they are actively engaged in a legitimate business, employment, trade, training, profession or occupation; or, (4) at a location where they are attending counseling sessions or community meetings at community centers or other established organizations; c. Confronting, intimidating, annoying, harassing, threatening, challenging, provoking, assaulting or battering any person that he or she knows to be a witness to any criminal street gang activity of HVK, to be a victim of any criminal street gang activity of HVK, or to have complained about any criminal street gang activity of HVK; -4d. Possessing any firearm, imitation firearm, ammunition, or deadly weapon, knowingly remaining in the presence of anyone who is in possession of such firearm, imitation firearm, ammunition or illegal weapon, or knowingly remaining in the presence of such firearm, imitation firearm, ammunition or illegal weapon, anywhere in public view or any place accessible to the public; e. Knowingly remaining in the presence of anyone who is in possession of any illegal drugs, narcotics or paraphernalia; f. Recruiting, soliciting, enticing, or encouraging individuals to join HVK or to perform any acts that will support HVK or its members; g. Taking any action that prevents a member from leaving HVK, including, but not limited to, threatening or intimidating by any means, the person attempting to leave HVK or any member of that person s family or friends; h. Participating in the unlawful possession, use or sale of any controlled substance as defined by state or federal law or the possession or use of any drug paraphernalia; and, i. Being present on or in any private property within Mecklenburg County not open to the general public with any person that he or she knows to be a member of the HVK gang, including, but not limited to, those members identified by name in this Preliminary Injunction, except when the members are relatives of the same family and are on or in private property of a family member they share in common. -5Defendant Funderburk appeals from the entry of the above preliminary injunction. We first address whether this appeal must be dismissed as premature. order. A injunction is an interlocutory Looney v. Wilson, 97 N.C. App. 304, 307, 388 S.E.2d 142, 144 (1990). interlocutory right. preliminary There is no immediate right of appeal from an order unless the order affects a substantial N.C. Gen. Stat. §§ 1-277, 7A-27(b)(3) (2013). Issuance of a preliminary injunction cannot be appealed prior to final judgment absent a showing that the appellant has been deprived of a substantial right which will be lost should the order escape appellate review before final judgment. Clark v. Craven Regional Medical Authority, 326 N.C. 15, 23, 387 S.E.2d 168, 173 (1990) (quoting State v. School, 299 N.C. 351, 358, 261 S.E.2d 908, 913 (1980)). If no endangered, the appeal cannot be maintained. at 358, 261 S.E.2d at 913. such right is School, 299 N.C. In School, the defendants offered no evidence of any substantial right which will be irrevocably lost if the state s entitlement to the preliminary injunction is not now reviewed. Id. The order in School restrained the defendants from operating day-care centers without complying with Act. the licensing Id. Our requirements Supreme of Court the held [Day-Care Facilities] that defendants the -6contention that compliance with the Act s requirements violates their constitutionally guaranteed religious freedoms goes to the heart of their legal challenge to the application of the Act itself and must await resolution at the final hearing when all the facts upon which such resolution must rest can be fully developed. Id. Our Supreme Court further stated that its refusal to allow [the] defendants requirements of appeal is finality. not a Id. surrender The to statutes technical and rules governing appellate review are more than procedural niceties. They are designed to streamline the judicial forestall delay rather than engender it. more effective justice than piecemeal way that through to of the intermediate orders. procrastinate bringing medium cases of Id. the to process, There is no administration an to appellate successive of court appeals from Id. (quoting Veasey v. Durham, 231 N.C. 357, 363, 57 S.E.2d 377, 382 (1950)); see also Barnes v. St. Rose Church of Christ, 160 N.C. App. 590, 586 S.E.2d 548 (2003). In the present case, Defendant Funderburk offered in his brief that there is no evidence of any substantial right which will be irrevocably lost if the state s entitlement preliminary injunction is not now reviewed. at 358, 261 S.E.2d at 913. As discussed to the School, 299 N.C. above, the rule -7forbidding interlocutory appeals is designed to promote judicial economy by eliminating the unnecessary delay and expense of repeated fragmentary appeals and by preserving the entire case for determination in a single appeal from a final judgment. Love v. Moore, 305 N.C. 575, 580, 291 S.E.2d 141, 146 (1982). Additionally, appellate courts are almost always better able to decide the legal issues developed record. The record when they this Court have before them a fully a brief Id. before contains only transcript of the short hearing before the trial court and an affidavit from a detective with the Charlotte-Mecklenburg Police Department Gang Unit. Defendant Funderburk offered no evidence during the hearing before the trial court. Defendant Funderburk has not argued any substantial right that will be irrevocably lost if the preliminary injunction is not now reviewed, and his appeal is dismissed. Dismissed. Judges ELMORE and McCULLOUGH concur.

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