State Of North Carolina v. Bortone

Decision Date15 February 2011
Docket NumberNo. 08 CRS 52176,No. 08 CRS 52270,NO. COA09-1286,COA09-1286,08 CRS 52176,08 CRS 52270
CourtNorth Carolina Court of Appeals

Appeal by defendant from judgments entered 27 March 2009 by Judge Ola M. Lewis in Brunswick County Superior Court. Heard in the Court of Appeals 9 March 2010.

Attorney General Roy Cooper, by Special Deputy Attorney General Kathryn Jones Cooper, for the State.

Geoffrey W. Hosford for defendant-appellant.

GEER, Judge.

Defendant John Bortone appeals from his conviction of two counts of injury to real property. We hold that defendant failed to properly preserve for appeal his arguments regarding the admission of evidence of his felony conviction for forgery; the admission of testimony by one of the State's witnesses regarding defendant's knowledge of property lines and prior trespass on her land; and the sufficiency of the evidence. As for defendant's argument that the trial court improperly restricted his cross-examination of the alleged victim, defendant has failed to demonstrate sufficient prejudice. We, therefore, find no error.


The State's evidence tended to show the following facts. Leonard Packer owned a 60-foot access and utility easement on Webster Court in the Caralyn subdivision in Leland, North Carolina. Mr. Packer previously owned property adjacent to the easement, a portion of which he sold to Marilyn Turner and another portion of which he sold to Tracy Miller, who in turn sold that portion to defendant. According to defendant's deed, defendant had a right to use the easement for access to his property and to have public utilities placed in the easement. Otherwise, Mr. Packer testified, defendant had "absolutely no right, whatsoever, to do anything on" the easement without Mr. Packer's permission.

On 12 April 2008, a neighbor, James Jacobs, saw defendant digging a ditch through the easement and onto Ms. Turner's land; the ditch caused rainwater to flow across Mr. Packer's property and onto Ms. Turner's property. Mr. Jacobs called Mr. Packer to tell him about the ditch. Mr. Packer called Ms. Turner and met her at the property. As Mr. Packer and Ms. Turner were discussing the damage, defendant approached them and acknowledged that he had dug the ditch, but insisted that the ditch was on his property. Mr. Packer and Ms. Turner told defendant that the ditch was on their property.

Mr. Packer later called Benjamin Brown, a licensed land surveyor, to come out to the property, identify the property corners, and determine if the ditch was on Mr. Packer's property.

Mr. Brown had previously prepared a map in 2006 based on his survey of the property. Mr. Brown went to the property, set up his instruments, found the corners, and determined that the corners were the same as he had previously found in 2006. Mr. Brown concluded that defendant's ditch had been dug across a 10-foot stretch of Mr. Packer's easement and onto Ms. Turner's property. Upon Mr. Packer's request, Mr. Brown wrote a letter to Mr. Packer to record the findings.

On 14 April 2008, two days after defendant dug the ditch, Mr. Packer filled in the ditch and installed witness pipes to mark the approximate property lines. After Mr. Packer repaired the property, he left. Defendant subsequently returned and, without permission, dug another ditch in Mr. Packer's easement. The ditch once again allowed water to flow onto Mr. Packer's and Ms. Turner's property.

Defendant was charged with second degree trespass and injury to real property owned by Mr. Packer on 12 April 2008, injury to real property owned by Mr. Packer on 15 April 2008, and second degree trespass and injury to real property owned by Ms. Turner on 12 April 2008. Because, however, of a defect in the warrant for the charges relating to Ms. Turner's property, the State did not bring those charges to trial.

At trial, defendant proceeded pro se and testified on his own behalf. Defendant explained that he had installed a road on his property but had problems with the road when it rained. In digging the ditch, he intended to divert the water into a swamp downhill.

He felt that he had a right to maintain the easement in a passable condition and to make improvements on the easement to make it passable. He further explained:

I have the right, as a landowner with an easement, to maintain it so it's in a passable condition. And — and — and it's always been a problem finding exactly where that line is. What — what are you allowed to do to make your — or keep your — your easement passable? And what is overburdening the easement by changing it too much? I had no — that wasn't on my mind, that day. What was on my mind was we could just go right down the property line and it wouldn't effect [sic] anybody, because it's only ten feet of this property that is made for an easement and storm water is part of — of — of having a road....

There was never any intent to destroy their property, to — to affect their property at all. It — it improved Ms. Turner's property by giving it a conduit to run down instead of running down the front of her property. Now, it can run down into a trench, where the water is going. I mean, I — I'm no "Mr. Nice Guy" but I thought I was helping them out a little bit as well as making a better situation for myself, too. There was — there was never any trespassing. I didn't trespass on his land, but on — by deed, I had the right to be there. And by deed, I also have the right to make the improvements necessary to keep the property usable — the easement usable.

On 27 March 2009, the court dismissed the second degree trespass charge and instructed the jury to disregard any evidence related to that charge. The trial court instructed the jury solely on the two counts of injury to Mr. Packer's real property. The jury found defendant guilty of both charges on 27 March 2009, and the trial court sentenced defendant to two consecutive terms of 120 days imprisonment. The judgments were signed 27 March 2009.

Defendant filed a written notice of appeal on 6 April 2009, mistakenly stating that he was appealing "the judgment entered on July 30, 2008 in Brunswick County Superior Court." Defendant also filed his appellate brief one day late. The State filed a motion to dismiss the appeal for lack of subject matter jurisdiction, and defendant petitioned for writ of certiorari.


We first address the State's motion to dismiss defendant's appeal. Rule 4(b) of the Rules of Appellate Procedure requires that a notice of appeal "shall specify the party or parties taking the appeal; shall designate the judgment or order from which appeal is taken and the court to which appeal is taken; and shall be signed by counsel of record for the party or parties taking the appeal, or by any such party not represented by counsel of record." (Emphasis added.) In its motion to dismiss, the State argues that the Court should dismiss the appeal because, in his written notice of appeal, defendant erroneously wrote that he was appealing from a 30 July 2008 judgment.

Our Supreme Court has explained that failure to comply with the appellate rules regarding the filing of a notice of appeal is a "jurisdictional default" that "precludes the appellate court from acting in any manner other than to dismiss the appeal." Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008). While this Court has held that "'a mistake in designating the judgment... should not result in loss of the appeal as long as the intent to appeal from a specific judgment canbe fairly inferred from the notice and the appellee is not misled by the mistake[,]'" Stephenson v. Bartlett, 177 N.C. App. 239, 241, 628 S.E.2d 442, 443 (quotingVon Ramm v. Von Ramm, 99 N.C. App. 153, 156-57, 392 S.E.2d 422, 424 (1990)), disc. review denied and review dismissed, 360 N.C. 544, 635 S.E.2d 58, 59 (2006), we do not think that an intent to appeal the two 27 March 2009 judgments can be fairly inferred from defendant's reference to a single 30 July 2008 judgment.1 We nonetheless exercise our discretion pursuant to Rule 21 of the Rules of Appellate Procedure and grant defendant's petition for writ of certiorari.

The State also points to the fact that defendant filed his appellate brief one day late, arguing that this tardiness also constitutes a jurisdictional default requiring us to dismiss the appeal. The State cites no cases suggesting that the deadline for filing a brief is jurisdictional, and we know of none. As this Court has previously observed, a deadline cannot be jurisdictional when the deadline may be extended under the Rules of Appellate Procedure. See Copper v. Denlinger, 193 N.C. App. 249, 260, 667 S.E.2d 470, 479-80 (2008) (holding that plaintiffs' failure to timely file record on appeal was not jurisdictional default because Rules of Appellate Procedure allow for extensions of time in filing records on appeal), rev'd in part on other grounds and disc. review improvidently allowed in part, 363 N.C. 784, 688 S.E.2d 426 (2010).

While deadlines are deadlines, we also recognize that mistakes can be made, and defendant's counsel has admitted and explained the error. Under the circumstances, the one-day delay is not a basis for dismissing the appeal and also does not amount to a substantial violation warranting sanctions.


First, defendant argues that the trial court erred in prohibiting defendant from cross-examining Mr. Packer "about [defendant's] right to maintain the road or easement to which he had access." Defendant claims that his "questioning of Packer about the improvement to the road related to that April 12th date, and as such, the questions directly established [defendant's] defense to the charges." Defendant does not quote the pertinent portion of the transcript or attach it in the appendix as required by N.C.R. App. P. 28(d). The sole identification of the portion of the transcript that is the basis for this argument is a transcript reference connected...

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