State v. Ballance

• Decision Date: 17 January 2012
• Docket Number: No. COA11–620.,COA11–620.
• Citation: 720 S.E.2d 856
• Parties: STATE of North Carolina v. Tanya Laine BALLANCE, Frank Pascal Ballance, and Richard A. Swain.
• Court: North Carolina Court of Appeals

720 S.E.2d 856

STATE of North Carolina

v.Tanya Laine BALLANCE, Frank Pascal Ballance, and Richard A. Swain.

No. COA11–620.

Court of Appeals of North Carolina.

Jan. 17, 2012.

Appeal by defendants from judgments entered 1 October 2010 by Judge Wayland J. Sermons in Hyde County Superior Court. Heard in the Court of Appeals 7 November 2011.

Attorney General Roy Cooper, by Assistant Attorney General C. Norman Young, Jr., for the State.

Paul F. Herzog, Fayetteville, for Defendant Richard A. Swain.

McLean Law Firm, P.A., Waynesville, by Russell L. McLean, III, for Defendants Tanya Laine Ballance and Frank Pascal Ballance.ERVIN, Judge.

Defendants Frank Pascal Ballance, Tanya Laine Ballance ¹, and Richard A. Swain appeal from judgments imposing a 45 day suspended sentence upon Ms. Ballance based upon her conviction for taking a bear with the aid of bait, imposing a 45 day suspended sentence upon Mr. Ballance based upon his conviction for aiding and abetting Ms. Ballance in taking a bear with the aid of bait, and imposing a 45 day suspended sentence upon Mr. Swain based upon his convictions for taking a bear with the aid of bait and placing processed food as bait in an area designated for bear hunting. On appeal, all three Defendants argue that the trial court erred by denying their motion to suppress evidence seized from Mr. Ballance's property. In addition, Mr. and Ms. Ballance argue that the trial court erred by failing to dismiss the misdemeanor statements of charges that had been filed against them and denying their dismissal motions. Finally, Mr. Swain argues that he received ineffective assistance of counsel because his trial counsel failed to seek to have his trial severed from that of Ms. Ballance or to object to the admission of certain statements that Ms. Ballance made to investigating officers. After careful consideration of Defendants' challenges to the trial court's judgments in light of the record and the applicable law, we conclude that Defendants are not entitled to any relief on appeal.

I. Factual Background

A. Substantive Facts

1. State's Evidence

On 22 September 2008, North Carolina Wildlife Officers Robert Wayne and David Woods entered a tract of swampy and wooded property owned by Mr. Ballance that contained more than 100 acres. At a location near an old logging road that ran through the property, Officer Wayne discovered two barrels that had been chained to trees, one of which was a green barrel that contained corn and the other of which was a black barrel that contained sliced bread, and a “metal case made for a trail camera” that had also been chained to a tree. Having seen similar sights on “hundreds” of prior occasions, Officer Woods associated the use of such barrels with efforts to attract bears. In addition, Officer Wayne observed bear excrement near the barrels, game trails that appeared to have been made by bears, and claw marks on the trees.

On 25 September, Officers Wayne and Woods returned to the barrel site, where they observed additional food items that had not been present on 22 September, including watermelon, cantaloupe, pineapple, strawberries, “suckers, some princess snacks, ring pops, cheddar cheese nab crackers, raisins, Starburst fruit-flavored snacks, and Peeps.” On 1 October, Officer Wayne returned to the barrel site with Officer Woods and North Carolina Wildlife Officer Parks Moss. At that time, some of the food items that Officers Wayne and Woods had previously observed were still present. In addition, Officer Wayne saw spent shotgun shells near the tree to which the green barrel had been attached ² and indications that nearby limbs and vegetation had been cut.

When Officer Wayne returned to the barrel site on 7 October, he noticed fresh corn in the green barrel and a camera in the box chained to a tree. At about 9:30 p.m. on 9 October, Officers Wayne and Woods came to the barrel site and saw fresh corn in the green barrel, chocolate frosting near a box that had contained a commercially-prepared chocolate cake, and evidence of heavy black bear activity. The camera that had been inside the metal box was no longer there.

On 10 and 11 October, Officer Woods made video recordings of his observations at the site. Officer Woods noted that the ground near the barrels had been trampled on or matted down and that a lot of “bear scat” was present. On the second of these two dates, Officer Woods videotaped a bear eating from the green barrel. Several hours later, Officer Woods saw Mr. Ballance unload a deer carcass at the site and place it “right at the base of the barrel.”

On 18 October, Officers Wayne and Woods encountered Defendants in Mr. Ballance's truck. At that time, Defendants told Officer Wayne that they had been hunting deer. Both officers saw a deer in the bed of Mr. Ballance's truck. On 24 October, Officers Wayne and Woods observed deer carcasses at the barrel site and “deer meat cut up and placed on top of the corn in the barrel.”

Officer Woods returned to the barrel site on 28 and 30 October. On 28 October, Officer Woods “discovered an orange barrel with what appeared to be old corn inside the barrel and on the ground,” “a white five-gallon bucket that had blood streaks inside the bucket itself,” and “several deer carcasses and deer parts around the vicinity of the barrel.” Branches had been cut from nearby trees so as to afford a clear view of the barrels from a nearby vantage point. On 30 October, Officer Woods saw Mr. Swain and Ms. Ballance driving slowly past the area in a truck with barrels in the bed.

Officer Woods next visited the barrel site on 3 November. At that time, Officer Woods saw a new orange barrel that contained blood and grains of corn. As Officer Woods observed the site, Mr. Swain arrived with a package of Oreo cookies and other processed food items. Mr. Swain distributed the cookies and other items near the barrels, filled a barrel with corn, picked up the orange barrel that contained blood and corn, and drove away. After Mr. Swain's departure, Officer Woods collected various items from the site, including sugar cookies and Halloween candy that Mr. Swain had deposited at the site. On 9 November, Officer Woods “found Apple Jacks cereal, taco shells, both soft and hard shell tacos, and zebra cakes actually inside the barrel mixed in with the corn” at the site.

On 10 November, the opening day of bear-hunting season, Officer Woods went to the barrel site at around 4:00 p.m. At that time, he saw Mr. Swain “wearing a reddish orange color shirt, camouflage pants, and blaze orange hat” and Ms. Ballance wearing “a light camouflage pattern shirt, blue jeans, [and] blaze orange hat.” Both Mr. Swain and Ms. Ballance were carrying firearms. After their departure, Officer Woods observed sugary cereal mixed with corn in one of the barrels.

At around 3:30 p.m. on 11 November, Officer Woods saw Mr. Swain's truck drive by the barrel site. A few minutes later, Mr. Swain and Ms. Ballance walked past, accompanied by a young child. Both Mr. Swain and Ms. Ballance were carrying rifles and wearing the same camouflaged clothing that they had worn on the preceding day. Mr. Swain, Ms. Ballance, and the child sat down about 20 yards from the barrels in the vicinity of the area in which the tree limbs had been cut.

Just before 5:00 p.m., Officer Woods heard a rifle shot from the direction of the barrels, followed by the noise of a bear running away from the barrel site. Up until that point, Officer Woods had not seen or heard any indication of the presence of dogs. About fifteen minutes later, Mr. Ballance came to the vicinity of the barrels with a dog on a leash. At that point, Officer Woods informed Ms. Ballance and Mr. Ballance of his presence. Ms. Ballance told Officer Woods that “she'd shot at the bear, that she missed it, and they got the dogs out to try and find it.” At another point, Ms. Ballance stated that she did not know whether she had hit the bear when she shot at it.

After learning that a shot had been fired near the barrel site, Officer Wayne came to the entrance to Mr. Ballance's property. At the time of his arrival, which occurred at about dusk, he saw Mr. Swain talking to Officer Moss. Mr. Swain told the investigating officers that “they” had shot a deer back in the Ballance woods; however, he did not identify his companions at that time.

Officer Wayne rode with Mr. Swain to the barrel site, where he saw Officer Woods, Mr. Ballance, Ms. Ballance, and a child. At that point, Mr. Ballance admitted having placed two deer carcasses near the barrels and said that, after Ms. Ballance shot at the bear, he brought one of his “bear dogs” to the trail and unsuccessfully attempted to track it. Similarly, Ms. Ballance acknowledged having been present when deer carcasses were left at the barrel site and that she had been with Mr. Swain when food was left there. However, Ms. Ballance did not recall what type of food had been left at the barrel site on those occasions. Ms. Ballance also admitted that she had been at the barrel site with Mr. Swain and a child earlier that day and that, when a bear appeared, she had urged the child to shoot the bear. However, since the child was unable to shoot the bear, it began to walk away. At that point, Mr. Swain whistled at the bear and Ms. Ballance shot at it with a rifle. However, Ms. Ballance did not know whether she had hit the bear.

2. Defendant's Evidence

a. Testimony of Mr. Ballance

Mr. Ballance testified that he had owned the property on which the barrels were located for about thirty-five years. Although he generally used the property for hunting, “from time to time people would have a freezer go bad or a refrigerator go bad and they had some food or something that they needed to get rid of, carry it up yonder and dump it out.” Since his trash was only collected once a week, if an item “was going to get smelly, [he'd] take it up to the property and discard ... it.” Mr. Ballance had dumped deer carcasses at...