State v. Carey
Decision Date | 06 October 2020 |
Docket Number | No. COA18-1233-2,COA18-1233-2 |
Citation | 849 S.E.2d 111 |
Parties | STATE of North Carolina v. Adam Richard CAREY |
Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General J. Aldean ("Dean") Webster III, for the State.
Guy J. Loranger, for defendant-appellant.
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 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.
The facts underlying this case are set forth in detail in our previous opinion State v. Carey , 266 N.C. App. 362, 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.
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.
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).
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).
The State has not moved to dismiss Defendant's appeal. The State also responded to and fully briefed the issues raised and argued.
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.
" 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 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.
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 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. ––––, 847 S.E.2d 449 (2020).
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.
"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.
The State argues Defendant delayed returning the weapons and was on a detour when stopped by...
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