State v. Carey ( 2020 )


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  •                IN THE COURT OF APPEALS OF NORTH CAROLINA
    No. COA18-1233-2
    Filed: 6 October 2020
    Onslow County, No. 16 CRS 54678
    STATE OF NORTH CAROLINA
    v.
    ADAM RICHARD CAREY
    Appeal by defendant from judgment entered 18 May 2018 by Judge Leonard
    L. Wiggins in Onslow County Superior Court. Heard in the Court of Appeals 5 June
    2019. A divided panel of this Court vacated defendant’s conviction and remanded for
    a new trial by opinion filed 16 July 2019. State v. Carey, __ N.C. App. __, 
    831 S.E.2d 597
    (2019). By order dated 28 February 2020, the Supreme Court of North Carolina
    reversed and remanded to this Court “for consideration of defendant’s remaining
    challenges to the trial court’s judgments.” State v. Carey, 
    373 N.C. 445
    , 
    838 S.E.2d 367
    (2020).
    Attorney General Joshua H. Stein, by Assistant Attorney General J. Aldean
    (“Dean”) Webster III, for the State.
    Guy J. Loranger for defendant-appellant.
    TYSON, Judge.
    Adam Richard Cary (“Defendant”) appeals from judgments entered upon a
    jury’s verdict finding him guilty of one count each of possession of a weapon of mass
    STATE V. CAREY
    Opinion of the Court
    death and destruction and impersonation of a law enforcement officer. Defendant
    does not challenge his conviction for impersonation of a law enforcement officer,
    which remains undisturbed. We vacate his conviction and judgment for possession
    of a weapon of mass death and destruction and remand for a new trial.
    I. Background
    The facts underlying this case are set forth in detail in our previous opinion
    State v. Carey, __ N.C. App. __, 
    831 S.E.2d 597
    , and by the Supreme Court in State v.
    Carey, 
    373 N.C. 445
    , 
    838 S.E.2d 367
    . The underlying facts are as follows:
    Defendant was operating a dark-colored Dodge Charger
    and pulled over a speeding vehicle on 16 July 2016.
    Defendant had “emergency lights” flashing on his car.
    State Highway Patrol Trooper Cross pulled behind
    Defendant’s vehicle and noticed the registration plate was
    not consistent with or issued to a law enforcement agency.
    After further investigation, Defendant was arrested, and
    his car was searched incident to arrest. Officers found a
    medical    technician     badge,    firearms,    magazines,
    ammunition, suppressors, three diversionary flash bang
    grenades, and other items located inside of Defendant’s
    car. Defendant was indicted on three counts of possession
    of weapons of mass destruction, impersonating a law
    enforcement officer, following too closely, and speeding.
    Carey, __ N.C. App. at __, 831 S.E.2d at 599.
    At trial,
    a jury returned verdicts finding Defendant guilty of one
    count of possession of a weapon of mass death and
    destruction and impersonation of a law enforcement
    officer. For the conviction of possession of a weapon of
    mass death and destruction charge, the court ordered
    -2-
    STATE V. CAREY
    Opinion of the Court
    Defendant to serve a term of 16 to 29 months. The court
    suspended the sentence and imposed intermediate
    punishment, ordering Defendant to serve an active term of
    120 days and placing him on supervised probation for a
    period of 24 months. . . . Defendant gave oral notice of
    appeal in open court.
    Id. II.
    Jurisdiction
    Jurisdiction lies in this Court from a final judgment of the superior court
    entered upon the jury’s verdict pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1) and 15A-
    1444(a) (2019). The appeal returns to this Court upon remand from the Supreme
    Court. 
    Carey, 373 N.C. at 452
    , 838 S.E.2d at 373.
    III. Issues
    Defendant argues the trial court erred by denying his motion to dismiss the
    weapon of mass death and destruction charge. Defendant also contends the trial
    court committed plain error by: (1) not finding he lawfully possessed and transported
    the flash bang grenades with his Marine Corp command’s knowledge and consent, (2)
    denying his motion to dismiss the charge of possession of a weapon of mass death and
    destruction; and, (3) failing to instruct the jury on whether Defendant fell within a
    category of persons permitted to lawfully possess and transport a weapon of mass
    death and destruction under N.C. Gen. Stat. § 14-288.8(b)(3)(2019).
    IV. Standard of Review
    -3-
    STATE V. CAREY
    Opinion of the Court
    Our Supreme Court has repeatedly held there is a duty of the trial court to
    instruct the jury on all of the substantive features of a case. State v. Loftin, 
    322 N.C. 375
    , 381, 
    368 S.E.2d 613
    , 617 (1988). “This is a duty which arises notwithstanding
    the absence of a request by one of the parties for a particular instruction.”
    Id. (citations omitted). “All
    defenses arising from the evidence presented during the trial
    constitute substantive features of a case and therefore warrant the trial court’s
    instruction thereon.”
    Id. (citations omitted). Our
    Rules of Appellate Procedure provide: “In criminal cases, an issue that
    was not preserved by objection noted at trial and that is not deemed preserved by rule
    or law without any such action nevertheless may be made the basis of an issue
    presented on appeal when the judicial action questioned is specifically and distinctly
    contended to amount to plain error.” N.C. R. App. P. 10(a)(4).
    To constitute plain error, the burden falls upon Defendant to show “not only
    that there was error, but that absent the error, the jury probably would have reached
    a different result.” State v. Jordan, 
    333 N.C. 431
    , 440, 
    426 S.E.2d 692
    , 697 (1993)
    (citation omitted).   Plain error should “be applied cautiously and only in the
    exceptional case” where the error “seriously affect[s] the fairness, integrity or public
    reputation of judicial proceedings.” State v. Lawrence, 
    365 N.C. 506
    , 518, 
    723 S.E.2d 326
    , 334 (2012) (citation omitted).
    -4-
    STATE V. CAREY
    Opinion of the Court
    The State has not moved to dismiss Defendant’s appeal.            The State also
    responded to and fully briefed the issues raised and argued.
    V. Lawful Possession
    A. Preservation
    In Defendant’s prior brief to this Court, Defendant did not argue the trial
    court’s instructions to the jury failed to address whether he is included within a
    category of persons, who are permitted to lawfully possess and transport a weapon of
    mass death and destruction. Where a party “does not set forth any legal argument
    or citation to authority to support [the] contention [it is] deemed abandoned.” State v.
    Evans, 
    251 N.C. App. 610
    , 625, 
    795 S.E.2d 444
    , 455 (2017). While Defendant did
    challenge the jury instructions, he concedes he did not argue the specific issue to this
    Court. He asks this Court to review this issue pursuant to Rule 2 of the North
    Carolina Rules of Appellate Procedure.
    To prevent manifest injustice to a party, or to expedite
    decision in the public interest, either court of the appellate
    division may, except as otherwise expressly provided by
    these rules, 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.
    N.C. R. App. P. 2.
    “Rule 2 relates to the residual power of our appellate courts to consider, in
    exceptional circumstances, significant issues of importance in the public interest, or
    -5-
    STATE V. CAREY
    Opinion of the Court
    to prevent injustice which appears manifest to the Court and only in such instances.”
    Steingress v. Steingress, 
    350 N.C. 64
    , 66, 
    511 S.E.2d 298
    , 299-300 (1999). This Court’s
    discretionary ability to invoke Rule 2 is “intended to be limited to occasions in which
    a ‘fundamental purpose’ of the appellate rules is at stake, which will necessarily be
    ‘rare occasions.’” State v. Hart, 
    361 N.C. 309
    , 316, 
    644 S.E.2d 201
    , 205 (2007)
    (citations omitted). In the exercise of our discretion, we invoke Rule 2 and review
    this issue. N.C. R. App. P. 2.
    B. Analysis
    Our Supreme Court held “all substantive and material features of the crime
    with which a defendant is charged must be addressed in the trial court’s instructions
    to the jury.” State v. Bogle, 
    324 N.C. 190
    , 196, 
    376 S.E.2d 745
    , 748 (1989). “[W]hen
    instructions, viewed in their entirety, present the law fairly and accurately to the
    jury, the instructions will be upheld.” State v. Roache, 
    358 N.C. 243
    , 304, 
    595 S.E.2d 381
    , 420 (2004) (citation omitted).
    “[I]t is not enough for the appealing party to show that error occurred in
    the jury instructions; rather, it must be demonstrated that such error was likely, in
    light of the entire charge, to mislead the jury.” State v. Cornell, 
    222 N.C. App. 184
    ,
    191, 
    729 S.E.2d 703
    , 708 (2012) (citations omitted). “In order for a new trial to be
    granted, the burden is on the defendant to not only show error but to also show that
    the error was so prejudicial that without the error it is likely that a different result
    -6-
    STATE V. CAREY
    Opinion of the Court
    would have been reached.” State v. Owen, 
    133 N.C. App. 543
    , 549, 
    516 S.E.2d 159
    ,
    164 (1999) (citation omitted).
    Defendant argues the trial court failed to instruct the jury to consider whether
    Defendant was authorized to lawfully possess and transport the flash bang grenades.
    N.C. Gen. Stat. § 14-288.8(b)(3) provides for lawful possession of otherwise restricted
    weapons and states “This section does not apply to any of the following: . . . Persons
    under contract with the United States, the State of North Carolina, or any agency of
    either government, with respect to any activities lawfully engaged in under their
    contracts.” This language in N.C. Gen. Stat. § 14-288.8(b)(3) states the unlawful
    possession “does not apply,” is exculpatory, and is not an underlying element of the
    offense. See State v. Palmer __ N.C. App. __, __ S.E.2d__, 
    2020 WL 4758601
    (2020).
    1. “Under Contract with the United States”
    Defendant testified and presented evidence he was serving upon active duty
    and under the command of the United States Marine Corps as his unit’s armorer and
    weapons technician when he came into possession of the flash bang grenades.
    Defendant further testified he possessed and transported the flash bang grenades
    under orders and with his Corp command’s knowledge and consent to an out of town
    training exercise, stored the unused items in his vehicle’s trunk, and was returning
    them to base. The record shows the State returned the flash bang grenades taken
    from Defendant’s vehicle to the owner, the Marine Corps, prior to trial.
    -7-
    STATE V. CAREY
    Opinion of the Court
    “The jury must not only consider the case in accordance with the State’s theory
    but also in accordance with [the] defendant’s explanation.” State v. Guss, 
    254 N.C. 349
    , 351, 
    118 S.E.2d 906
    , 907 (1961) (per curiam). The State did not challenge nor
    refute these facts and testimony before the trial court and stipulates before this Court
    to Defendant’s active duty status and military occupational specialty as his unit’s
    armorer and weapons technician at the time of his arrest on unrelated charges.
    2. State’s Arguments
    The State argues Defendant delayed returning the weapons and was on a
    detour when stopped by police. Even if the State’s argument is true, this would not
    overcome Defendant’s properly admitted testimony and his right for the jury to
    resolve this issue. “[A]ll substantive and material features of the crime with which a
    defendant is charged must be addressed in the trial court’s instructions to the jury.”
    
    Bogle, 324 N.C. at 196
    , 376 S.E.2d at 748; see 
    Loftin, 322 N.C. at 381
    , 368 S.E.2d at
    617.
    Defendant is entitled proper and complete jury instructions of all properly
    admitted evidence under N.C. Gen. Stat. § 14-288.8. Id.; see 
    Guss, 254 N.C. at 351
    ,
    118 S.E.2d at 907. In light of our decision to grant a new trial on this issue, we do
    not address Defendant’s remaining arguments, which are unlikely to arise again
    upon remand.
    VI. Conclusion
    -8-
    STATE V. CAREY
    Opinion of the Court
    The trial court committed plain error in not instructing the jury on all the
    evidence presented and admitted under N.C. Gen. Stat. § 14-288.8. The jury, if
    properly instructed, would have had to consider and find all attendant circumstances
    relevant to the charge to exonerate or to properly convict Defendant. 
    Bogle, 324 N.C. at 196
    , 376 S.E.2d at 748.
    Under plain error review, this error in instructions to the jury was prejudicial
    to Defendant to mandate a new trial. Defendant’s conviction of possession of a weapon
    of mass death and destruction and the judgment entered thereon is vacated, and this
    cause is remanded for a new trial. It is so ordered.
    NEW TRIAL.
    Judge MURPHY concurs.
    Judge YOUNG dissents with separate opinion.
    -9-
    No. COA 18-1233 – State v. Carey
    YOUNG, Judge, dissenting.
    I.         Introduction
    The majority has held that the trial court committed plain error in not
    instructing the jury on all the evidence presented and admitted under N.C. Gen. Stat.
    § 14-288.8 (2019). Because I do not believe that the Supreme Court’s mandate
    permits us to consider this issue, I respectfully dissent from the majority’s opinion
    vacating and remanding this case for a new trial.
    II.    Mandate
    On his original appeal to this Court, defendant argued that the trial court erred
    in denying his motion to dismiss the charge of possession of a weapon of mass death
    and destruction, that the trial court committed plain error by failing to instruct the
    jury on the definition of “weapon of mass death or destruction,” and that the trial
    court committed plain error by instructing the jury that it could find that the State
    satisfied the “weapon of mass death or destruction” element if it found defendant
    possessed a “grenade.” The majority held that a flash bang grenade was not a weapon
    of mass death and destruction and therefore reversed the trial court’s denial of
    defendant’s motion to dismiss. The majority did not address defendant’s remaining
    arguments. The State appealed to the Supreme Court which held that a flash bang
    grenade was a weapon of mass destruction, and thus reversed the decision of this
    Court. Specifically, the Supreme Court held that, “we reverse the Court of Appeals’
    decision to the contrary and remand this case to the Court of Appeals for
    STATE V. CAREY
    YOUNG, J., dissenting
    consideration of defendant’s remaining challenges to the trial court’s judgments.”
    State v. Carey, 
    373 N.C. 445
    , 
    838 S.E.2d 367
    (2020).
    Not one of defendant’s “remaining challenges” included a lawful possession
    argument. Defendant failed to address the issue of lawful possession at trial.
    Likewise, in his initial appeal to this Court he did not raise the issue of lawful
    possession.   Nor did he raise that issue on appeal to our Supreme Court. “Our
    Supreme Court has long held that where a theory argued on appeal was not raised
    before the trial court, the law does not permit parties to swap horses between courts
    in order to get a better mount in the appellate courts.” State v. Shelly, 
    181 N.C. App. 196
    , 207, 
    638 S.E.2d 516
    , 524 (2007). It is therefore clear that the issue of lawful
    possession was not one of defendant’s “remaining challenges” as expressed by the
    Supreme Court’s mandate. “On the remand of a case after appeal, the mandate of
    the reviewing court is binding on the lower court, and must be strictly followed,
    without variation and departure from the mandate of the appellate court.” Collins v.
    Simms, 
    257 N.C. 1
    , 11, 
    125 S.E.2d 298
    , 306 (1962). Our review on remand is properly
    limited to those issues defendant previously raised—lawful possession is not among
    them. Nor has defendant raised any arguments aside from lawful possession.
    Nor do I believe that this is the sort of general mandate which would permit
    us to consider other issues. It is well established that remands may be general or
    limited in scope. State v. Watkins, 
    246 N.C. App. 725
    , 730, 
    783 S.E.2d 279
    , 283 (2015).
    2
    STATE V. CAREY
    YOUNG, J., dissenting
    Typically, general remands are reviewed de novo, and limited remands are “limited
    to the issue or issues remanded.”
    Id. The Supreme Court
    mandate specifically
    directed this Court to consider “defendant’s remaining challenges to the trial court’s
    judgments.” For this reason, I believe this is a limited mandate, and therefore,
    consideration of the issue of lawful possession is beyond the scope.
    III.     Conclusion
    Because the issue of lawful possession is not properly before us, and because
    defendant raises no additional arguments aside from lawful possession upon remand,
    we are limited in accordance with the Supreme Court’s mandate to those issues
    previously   raised.   I   therefore      would   not   address   the   issue   of   lawful
    possession. Again, in accordance with the Supreme Court’s mandate, and as I stated
    in my previous dissent, I would find no error in the trial court’s denial of defendant’s
    motion to dismiss, and no plain error in the trial court’s instructions to the jury.
    For the foregoing reasons, I respectfully dissent.
    3