State v. Barnes , 229 N.C. App. 556 ( 2013 )

McGEE, Judge,

dissenting.

I respectfully dissent from the majority’s conclusion that the trial court did not err in denying Defendant’s motion to dismiss the charge of possession of marijuana in a confinement facility.

I. Relevant Facts

I submit that the relevant facts to the offense of possession of marijuana in a confinement facility are as follows:

Defendant was arrested for driving while impaired, handcuffed with his hands behind his back, and transported to the Wayne County Detention Center (confinement facility). At the confinement facility, Defendant asked to use the restroom. The officer moved the handcuffs from behind Defendant’s back to the front of Defendant. Defendant became “combative [,]” and assistance from a jailer was required to move Defendant into the area where breath samples were taken. In “placing [Defendant] in the seat[,] a bag fell out of his pants leg.” Testing revealed the bag contained approximately 4.05 grams, or one seventh of one ounce of marijuana.

II. Actus Reus Requirement

It is well-established that, to hold a defendant criminally liable for an offense, the State must show an actus reus. See 4 William Blackstone, Commentaries *19, *20-21.

An involuntary act, as it has no claim to merit, so neither can it induce any guilt: the concurrence of the will, when it has its choice either to do or to avoid the fact in question, being the only thing that renders human actions either praiseworthy or culpable. Indeed, to make a complete crime cognizable by human laws, there must be both a will and an act.

Id. The common law is clearly in force in this State. See N.C. Gen. Stat. § 4-1 (2011).

All such parts of the common law as were heretofore in force and use within this State ... and which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this State.

Id.

Our Supreme Court has long recognized the rule that criminal liability requires a voluntary act. See State v. Boyd, 343 N.C. 699, 473 S.E.2d 327 (1996); State v. Jerrett, 309 N.C. 239, 264-65, 307 S.E.2d 339, 353 (1983); State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969), overruled in part on other grounds by State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975).

Boyd, Jerrett, and Mercer concerned the defense of unconsciousness. Unconsciousness is “often referred to as automatism: one who engages in what would otherwise be criminal conduct is not guilty of a crime if he does so in a state of unconsciousness or semi-consciousness.” Wayne R. LaFave, Substantive Criminal Law § 9.4, at 33 (2nd ed.). “Although this is sometimes explained on the ground that such a person could not have the requisite mental state for commission of the crime, the better rationale is that the individual has not engaged in a voluntary act.” Id.

As the majority notes, unconsciousness is not precisely the issue in the present case. The issue is more precisely whether a defendant who is brought to a confinement facility in handcuffs voluntarily possesses marijuana in the facility. Both the defense of unconsciousness and the present issue implicate the requirement to show a defendant’s actus reus.

Our Supreme Court has also long recognized that a conscious defendant, who is either forced to or ordered to act, does not act voluntarily. In State v. Seahorn, 166 N.C. 373, 81 S.E. 687 (1914), the defendants, husband and wife, were convicted of selling intoxicating liquor. The trial court instructed that, if the jury found that the wife acted “under the constraint of her husband, and that he was exercising such power over her as to cause her to make sales of liquor, in his presence, so that it was not her own voluntary act,... you should acquit the wife and convict the husband.” Seahorn, 166 N.C. at 376, 81 S.E. at 688. Our Supreme Court agreed with the premise that a defendant could be forced or ordered to act involuntarily. Ultimately, the Court concluded that the wife “did not claim to have acted under the constraint of her husband.” Seahom, 166 N.C. at 377, 81 S.E. at 688.

Chief Justice Clark observed that the “presumption of compulsion of the husband as to crimes committed by the wife in the presence of her husband ... should be set aside in the same mode [as permitting a husband to use force towards his wife], since we have ‘advanced from the barbarism’ upon which it was based.” Seahorn, 166 N.C. at 379, 81 S.E. at 689 (Clark, C.J., concurring) (quoting State v. Oliver, 70 N.C. 60, 61 (1874)). The relative infrequency of modem criminal cases analyzing the voluntariness of an act does not diminish the requirement to show an actus reus.

The requirement to show an actus reus is a well-settled principle. See Boyd, Jerrett, and Mercer, supra. Thus, the actus reus showing that is required to impose criminal liability and the fact that a defendant can be made to act involuntarily where ordered or otherwise forced are well-settled issues of law in this State. “[W]here a principle of law has become settled by a series of decisions, it is binding on the courts and should be followed in similar cases.” State v. Ballance, 229 N.C. 764, 767, 51 S.E.2d 731, 733 (1949). The present issue must therefore be analyzed while bearing in mind these settled principles.

“[C]riminal liability requires that the activity in question be voluntary.” Wayne R. LaFave, Substantive Criminal Law § 6.1, at 425 (2nd ed.). “The deterrent function of the criminal law would not be served by imposing sanctions for involuntary action, as such action cannot be deterred.” Id. at 425-26. “In the overwhelming majority of criminal cases, the voluntary nature of defendant’s acts is not at issue.” Id. at 426, n.24. Where an officer transports a defendant into a confinement facility, the voluntary nature of the defendant’s acts is at issue.

Defendant was initially handcuffed with his hands behind his back, and an officer transported Defendant to the confinement facility. A bag containing marijuana fell out of Defendant’s pants while he was inside the facility. Defendant was convicted of possessing marijuana in a confinement facility. “Any person who violates G.S. 90-95(a)(3) on the premises of a penal institution or local confinement facility shall be guilty of a Class H felony.” N.C. Gen. Stat. § 90-95(e)(9) (2011). N.C. Gen. Stat. §'90-95(a)(3) prohibits the possession of controlled substances.

The amount of marijuana found was approximately one seventh of one ounce. Possession of one seventh of one ounce of marijuana is a Class 3 misdemeanor. N.C.G.S. § 90-95(d)(4); N.C. Gen. Stat. § 15A-1340.23 (2011). The maximum sentence for a Class 3 misdemeanor for a Level II offender like Defendant is fifteen days of community or intermediate punishment. N.C.G.S. § 15A-1340.23. In contrast, possession of one seventh of one ounce of marijuana in a confinement facility is a Class H felony, for which Defendant was sentenced to six to eight months in prison. N.C.G.S. § 90-95(e)(9); N.C.G.S. § 15A-1340.17.

No case in this State analyzes the precise issue of whether a defendant who is brought to a confinement facility in handcuffs voluntarily possesses marijuana in the facility. Cases from other jurisdictions, including Oregon, Washington, and New Mexico, yield persuasive reasoning on similar facts.

In State v. Tippetts, 43 P.3d 455, 456 (Or. Ct. App. 2002), the defendant was charged with introducing “contraband into a correctional facility” in violation of Or. Rev. Stat. § 162.185. The majority argues that the Oregon statute is distinguishable from the statute in the present case. However, violation of the Oregon statute “Supplying contraband” may be proven by showing that the defendant “knowingly introduces any contraband into a correctional facility” or, being confined in a correctional facility, “knowingly makes, obtains or possesses any contraband.” Or. Rev. Stat. § 162.185. The defendant in Tippetts was found with marijuana in his pants pocket during a search inside the jail. Possession is thus the crux of the charge. For purposes of this analysis, the Oregon statute is indistinguishable from N.C.G.S. § 90-95(e)(9).

The State argued the “earlier voluntary act of possession” was sufficient to hold the defendant “criminally liable for the later involuntary act of introducing the marijuana into the jail.” Tippetts, 43 P.3d at 459. The Court of Appeals of Oregon disagreed. The “ [defendant, however, did not initiate the introduction of the contraband into the jail or cause it to be introduced in the jail. Rather, the contraband was introduced into the jail only because the police took [the] defendant (and the contraband) there against his will.” Tippetts, 43 P.3d at 457.

In State v. Eaton, 229 P.3d 704, 705 (Wash. 2010) (en banc), the defendant received an enhanced sentence for possessing drugs in a jail. The Supreme Court of Washington stated that as “a general rule, every crime must contain two elements: (1) an actus reus and (2) a mens rea. Actus reus is defined as [t]he wrongful deed that comprises the physical components of a crime[.]” Eaton, 229 P.3d at 706 (internal quotations marks and citations omitted).

“Where an individual has taken no volitional action she is not generally subject to criminal liability as punishment would not serve to further any of the legitimate goals of the criminal law.” Eaton, 229 P.3d at 707. “[T]he ‘reason for requiring an act is, that an act implies a choice, and that it is felt to be impolitic and unjust to make a man answerable for harm, unless he might have chosen otherwise.” Id. (quoting O.W. Holmes, Jr., The Common Law 40 (Mark DeWolfe Howe ed., Harvard Univ. Press, 1967) (1881)).

“Once [the defendant] was arrested, he no longer had control over his location. From the time of arrest, his movement from street to jail became involuntary: involuntary not because he did not wish to enter the jail, but because he was forcibly taken there by State authority. He no longer had the ability to choose his own course of action.” Eaton, 229 P.3d at 708. The Supreme Court of Washington concluded the defendant did not voluntarily possess the drugs in the jail and affirmed the decision of the Court of Appeals of Washington.

In State v. Cole, 164 P.3d 1024 (N.M. Ct. App. 2007), the defendant was charged with bringing contraband into a jail. As in the present case, the defendant was arrested and charged with driving under the influence. Cole, 164 P.3d at 1025. An officer at the jail found a “small bag of marijuana” in the defendant’s pocket. Id. The Court of Appeals of New Mexico agreed with the reasoning in Tippetts.

“[T]o be found guilty of bringing contraband into a jail... a person must enter the jail voluntarily. In this case, the undisputed facts show that [the defendant] did not bring contraband into the [jail]; law enforcement brought him and the contraband in his possession into the facility.” Cole, 164 P.3d at 1027. “The dispositive issue is that [the defendant] cannot be held hable for bringing contraband into a jail when he did not do so voluntarily.” Id.

Cases from other jurisdictions are not binding on this Court and, likewise, the apparent majority or minority nature of a foreign rule is not binding either. Nevertheless, cases from other jurisdictions can be persuasive, and I find the reasoning in the above cases to be convincing. Most importantly, the reasoning comports with our State’s long-established principle that criminal liability requires a voluntary act. See, e.g., State v. Bush, 164 N.C. App. 254, 265, 595 S.E.2d 715, 722 (2004) (quoting State v. Jerrett, 309 N.C. 239, 264-65, 307 S.E.2d 339, 353 (1983) (“[T]he absence of consciousness not only precludes the existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability."') (emphasis added)).

In the present case, Defendant was handcuffed with his hands behind his back, and an officer transported Defendant to the confinement facility. Eventually, a bag containing marijuana fell out of Defendant’s pants while Defendant was inside the facility. The facts demonstrate, and the majority does not disagree that, from the time Defendant was arrested, Defendant had no control over his location. Rather, the officer controlled Defendant’s location. The officer took Defendant to the confinement facility. Defendant had no ability to choose his own course of action regarding his location. To hold Defendant criminally liable for possession of marijuana inside a confinement facility under these facts violates the common law requirement to show an actus reus.

III. Fifth Amendment Implications

The majority notes that Defendant had the “option” “to disclose” the marijuana to the arresting officer before reaching the confinement facility. To hold that Defendant should have told the officer about his possession before being taken inside the confinement facility violates the Fifth Amendment to the Constitution of the United States and Article I, Section 23 of the Constitution of the State of North Carolina. See, e.g., Tippetts, 43 P.3d at 457 n.2. The Fifth Amendment right against compelled self-incrimination “protects an individual from being compelled to give testimony which may incriminate him or which might subject him to fines, penalties, or forfeiture.” State v. Pickens, 346 N.C. 628, 637, 488 S.E.2d 162, 166 (1997).

The “claim of privilege should be liberally construed[.] The privilege applies not only to evidence which an individual reasonably believes could be used against him in a criminal prosecution, but also encompasses evidence that would furnish a link in the chain of evidence needed to prosecute the claimant^]” Pickens, 346 N.C. at 637, 488 S.E.2d at 167 (internal quotation marks and citations omitted).

To reveal possession of marijuana to an officer before entering the facility would directly implicate Defendant in criminal conduct, namely, violation of N.C.G.S. 90-95(d)(4). Defendant had no duty to reveal the marijuana to the officer before entering the confinement facility. To hold otherwise is contrary to the federal and state constitutional prohibitions against compelled self-incrimination.

The majority’s response to this constitutional problem, in a footnote, cites Viar v. N.C. Dep’t. of Transp., 359 N.C. 400, 610 S.E.2d 360 (2005). Viar does not stand for the proposition that this Court cannot note constitutional problems unless the appellant so argues. Viar is not a criminal case and did not analyze a constitutional issue. Rather, Viar concerned the Rules of Appellate Procedure and has itself been abrogated to an extent by Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 657 S.E.2d 361 (2008).

Further, in reaching its conclusion that “effectively forcing such a choice upon the defendant does not violate the state and federal constitutional right against compulsory self-incrimination[,]” the majority ignores the Fifth Amendment problem by quoting language that the defendant in the present case did not give or refuse testimony, but rather engaged in a nontestimonial act. The present facts, of course, present no Fifth Amendment problem. The problem arises when the Court implicitly holds that, to avoid being punished for a felony, a defendant must confess to a misdemeanor — a dilemma the majority does not address.

IV. Conclusion

The Fifth Amendment rights of Defendant remain intact, and the State is required to show that Defendant acted voluntarily. I would hold that the State failed to offer evidence to show that Defendant acted voluntarily in bringing marijuana to the confinement facility and possessing marijuana inside. Without showing that Defendant acted voluntarily and thereby satisfying the common law requirement to show an actus reus, the State cannot hold Defendant criminally liable for possession of marijuana in a local confinement facility.