State v. Huckelba
| Decision Date | 21 April 2015 |
| Docket Number | No. COA14–916.,COA14–916. |
| Citation | 240 N.C.App. 544,771 S.E.2d 809 |
| Parties | STATE of North Carolina v. Anna Laura HUCKELBA. |
| Court | North Carolina Court of Appeals |
Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State.
Edward Eldred for the defendant-appellant.
Anna Laura Huckelba1 ("Defendant") appeals from a final judgment of the trial court, based on a jury verdict finding her guilty of three counts of misdemeanor weapon on educational property and one count of felony weapon on educational property pursuant to N.C. Gen.Stat. § 14–269.2(b) (2011). On appeal, Defendant first contends that the trial court committed plain error by instructing the jury that Defendant was guilty of possessing a weapon on educational property even if she did not know she was on educational property. Second, Defendant argues that her trial counsel was ineffective by failing to argue a fatal variance in the indictment. For the following reasons, we reverse and remand for a new trial consistent with this opinion.
On 11 February 2013, Defendant was indicted on three counts of misdemeanor possession of a weapon on campus or other educational property and one count of felony possession of a weapon on campus or other educational property in violation of N.C. Gen.Stat. § 14–269.2(b). Defendant's case was called for trial in Guilford County Superior Court on 1 October 2013. The evidence presented at trial tended to show the following facts:
On 25 December 2012, Defendant was a senior at High Point University in High Point, North Carolina. Because it was Christmas day, school was not in session, and there were few cars on campus. That evening, sometime after 4:30 P.M., Defendant pulled into a parking spot in front of High Point University's Administration Building. In order to get to this parking spot, Defendant had to drive past a fence, but she did not have to drive through any security gates. Had Defendant chosen to move her car from its location in front of the Administration Building to the residential area of campus, she would have encountered a security gate, and would need a security card to drive into the residences. Instead, Defendant parked her car in an area that was open to the public, approximately two miles away from "main" campus, where most of the academic buildings are located.
Officer Jeffrey Thomas ("Officer Thomas"), a security officer employed by High Point University, noticed Defendant as she parked. Officer Thomas recognized Defendant because the officers were previously instructed to "be on the lookout" for Defendant for an unspecified reason. The officers were directed to call a Student Life employee if they saw Defendant on campus. Officer Thomas approached Defendant and spoke to her while she was still in her car. He asked her whether she had spoken to anyone in the Student Life department. When Defendant responded that she had not, Officer Thomas escorted her into the lobby of the Administration Building. Defendant's demeanor was calm. Officer Thomas left Defendant in the lobby and Lieutenant Dennis Shumaker ("Lieutenant Shumaker"), another security officer employed by High Point University, joined them in the lobby.
Lieutenant Shumaker contacted the on-duty resident director of Student Life, Lance Dunlap ("Mr. Dunlap"), who arrived at the Administration Building ten to fifteen minutes later. During those ten to fifteen minutes, Lieutenant Shumaker asked Defendant why she was on campus. Defendant responded that she wanted to do her laundry in her townhome-style dorm room on campus. When Mr. Dunlap arrived, he asked Defendant if she had a gun. Defendant responded that she did have a gun in her car. Lieutenant Shumaker told Defendant that he needed to retrieve the gun from her car. Defendant handed Lieutenant Shumaker her car keys without objection. Before Lieutenant Shumaker left the room, Defendant told him that she had a "concealed carry" permit.
Lieutenant Shumaker went outside to the parking lot of the Administration Building, unlocked and opened Defendant's car. Initially, Lieutenant Shumaker did not see any weapons in the car, only a cardboard box on the back-seat floorboard. Lieutenant Shumaker eventually located a loaded gun2 in the glove compartment of Defendant's car and three knives in the cardboard box in the back seat. The knives' blades were not exposed. At that point, Lieutenant Shumaker contacted the High Point Police Department and waited for an officer to arrive on the scene. Before leaving for the night, Lieutenant Shumaker wrote a report of the incident. In that report, he documented a direct statement made by Defendant: "I know I'm not supposed to have [the gun] on campus, but I don't take it in my room, or anything."
High Point Police Officer Ian Stanick ("Officer Stanick") eventually arrived on the scene and immediately secured the weapons in his police vehicle. He later took the weapons to the police department and logged them into evidence. Once the weapons were secure, Officer Stanick arrested Defendant and transported her to the police station. At the station, Defendant waived her Miranda rights and made several statements to Officer Stanick about the weapons in her car. Defendant stated again that "[s]he knew she was not supposed to have a gun on campus" because "she was taught that in her concealed carry class." She also indicated that her concealed carry permit was valid on the day of her arrest.3 Defendant told Officer Stanick that she bought the gun for protection because she works the night shift at a retail clothing store in Winston–Salem. She explained to Officer Stanick that she does not feel safe walking through the dark parking lot after work. Defendant indicated to Officer Stanick that "she did not have anywhere else to keep the weapon so she kept it locked in the glove compartment of the car." Defendant was subsequently charged with one count of felony weapon on educational property for the gun and three counts of misdemeanor weapon on educational property for the knives. She spent thirty-nine days in jail before she was released on bail.
Defendant's case was called for trial in Guilford County Superior Court on 1 October 2013. During her opening statements to the jury, Defendant admitted to the element of possession for each of the four weapons charges, but adamantly denied that she was on educational property. At the close of the State's evidence, Defendant made a motion to dismiss, which the trial court denied. No evidence was presented by Defendant.
During the charge conference, outside the presence of the jury, the trial court proposed to read to the jury North Carolina Pattern Jury Instruction 235.17 for the substantive elements of the offenses charged. Neither party objected. Accordingly, the trial court charged the jury with the following instructions:
The trial court repeated this instruction to the jury for each additional weapon charge, substituting the words "Ruger pistol" for the names of the three knives found in Defendant's car. The jury found Defendant guilty of all four weapons charges. At sentencing, because Defendant was a prior record level I with zero points, the trial court imposed a suspended sentence of six to seventeen months imprisonment for the Class I felony gun charge, and a suspended, consolidated sentence of forty-five days imprisonment for the misdemeanor weapons charges.
On 8 October 2013, five days after the judgment against her was entered, Defendant filed a handwritten notice of appeal. The notice states that Defendant "give[s] notice of appeal to the Court of Appeals of Guilford County." The bottom right hand corner of the notice states: "10/8/13 CC DA," suggesting that Defendant possibly gave the District Attorney's office the same notice. On 4 December 2014, the State moved this Court to dismiss Defendant's appeal, citing a violation of Rule 4 of the North Carolina Rules of Appellate Procedure, which requires a defendant-appellant to serve the State with a copy of the notice of appeal. See N.C. R.App. P. 4. On 15 December 2014, Defendant filed a response to the State's motion to dismiss, as well as a petition for writ of certiorari with this Court. On 16 January 2015 we allowed the State's motion to dismiss the appeal, based on the procedural violations. However, on 21 January 2015, we granted Defendant's petition for writ of certiorari to decide this case on the merits.
Jurisdiction lies in this Court pursuant to Rule 21 of the North Carolina Rules of Appellate Procedure, which provides for appellate review under the extraordinary writ of certiorari. "The writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action." N.C. R.App. P. 21(a)(1).
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