State v. York ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Deputy Attorney
General Kathryn J. Thomas, for the State.
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 of judgment based upon her conviction of resisting a
public officer. The evidence at trial tended to show the
following: On 29 April 2012, Defendant and her husband went to
a local Belk department store so that Defendant could purchase
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some 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 restroom,
Defendant washed her face and freshened her makeup. As she left
the restroom, Defendant took a purse from the top of the paper
towel holder, assuming it was her own make-up case. She
purchased several tops and left the store without 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. Defendant and her husband were able to
reach a man who identified himself as Michelle Shamberger’s
husband. Defendant explained that she had Shamberger’s purse
and agreed to return to Belk to give the purse back to
Shamberger.
The State’s witnesses presented a different version of
these events. Shamberger was an 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
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another woman wash her hands and leave the restroom with her
purse. Shamberger called out to the woman, but the woman did
not 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 the
Burlington Police Department were called to the store. Smith
called the cellphone Shamberger had left in her purse. 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 car where Defendant’s husband was waiting.
Defendant handed the purse to Shamberger who confirmed that
nothing was missing. At that point, Leight told Defendant she
was under arrest for larceny. Defendant turned, crossed her
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arms, 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 larceny and
misdemeanor resisting a public officer. 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. The
trial court denied both motions. 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 investigation of the
alleged larceny had been completed. We vacate.
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The 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 had
reasonable grounds to believe that the
victim was a public officer;
3) that the victim was discharging or
attempting to discharge a duty of his
office;
4) that the defendant resisted, delayed, or
obstructed the victim in discharging or
attempting to discharge a duty of his
office; and
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5) 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. Rather, Defendant argued for dismissal by
asserting that Defendant did not actually resist, delay, or
obstruct Leight in the course of his performance of his duties.
Accordingly, Defendant has not preserved this argument for
appellate review. See N.C.R. App. P. 10(a)(1). However,
Defendant asks this Court to invoke Rule 2 of our Rules of
Appellate Procedure in order to reach the merits of her
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argument, 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 a suspect without a warrant if the officer has
probable cause to believe the suspect has committed a
misdemeanor offense in the officer’s presence. N.C. Gen. Stat.
§ 15A-401(b)(1) (2013). In contrast, for misdemeanor offenses
not personally 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 unless
immediately arrested, or
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
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“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.” State v. Perry, 305
N.C. 225, 233, 287 S.E.2d 810, 815 (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). Here, it
is undisputed that Defendant did not take or carry away
Shamberger’s purse in Leight’s presence. 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. Nothing suggested that Defendant was
here. Id.
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likely 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 contact with
[Defendant] when she arrived?
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.
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Q[.] 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 by Leight’s own account, nothing about Defendant’s
actions or the circumstances indicated a 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 At most, these facts might provide probable
2
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
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cause 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 to get a good look at her face and
purchases at home.
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possibly ask for her identification. Surprisingly, the
transcript does not indicate that Leight ever asked 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. Simply put,
Leight never evinced any belief that Defendant would likely
avoid later apprehension if he did not immediately arrest her,
and absolutely nothing in the record would support such a
belief. Thus, Leight’s attempted arrest of Defendant was
unlawful and she was lawfully entitled to resist 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).