State v. Mello

• Decision Date: 03 November 2009
• Docket Number: No. COA08-1054.,COA08-1054.
• Citation: 684 S.E.2d 477
• Parties: STATE of North Carolina v. Gary Frances MELLO.
• Court: North Carolina Court of Appeals

684 S.E.2d 477

STATE of North Carolina v. Gary Frances MELLO.

No. COA08-1054.

Court of Appeals of North Carolina.

November 3, 2009.

Appeal by defendant from judgment entered 14 November 2007 by Judge Henry E. Frye, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 7 April 2009.

Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.

Glover & Peterson, P.A., by James R. Glover, Chapel Hill, for defendant-appellant.

HUNTER, JR., ROBERT N., Judge.

Defendant Gary Frances Mello ("defendant") appeals his conviction under Winston-Salem City Ordinance § 38-29 ("the Ordinance") for loitering for the purpose of engaging in drug-related activity. Defendant argues that the Ordinance is unconstitutional on grounds of overbreadth and vagueness. We agree.

I. Background

On 25 February 2007 and 4 June 2007, a Forsyth County Grand Jury returned superseding indictments charging defendant with the following offenses allegedly committed on 28 August 2006: three counts of assaulting a government official (involving Officers J.R. Pritchard, D.J. Hege, and B.G Extrom of the Winston-Salem Police Department); one count of loitering for the purpose of engaging in drug-related activity; and two counts of failing to heed a blue light and siren.

The charges came for trial on 29 October 2007, with the Honorable Henry E. Frye, Jr., presiding. Defendant filed a motion to exclude evidence of his 26 August 2006 encounter with Officer Pritchard on grounds of unfair prejudice and irrelevance. On 31 October 2007, the trial court denied defendant's motion to dismiss the loitering charge on the grounds that the Ordinance was unconstitutional and conducted a voir dire hearing to determine whether the State could introduce Rule 404(b) evidence relating to Officer Pritchard's traffic stop of defendant on 26 August 2006. During voir dire, defendant contended that introducing such evidence violated the balancing test set out in Rule 403. Over defendant's objection, the trial court allowed Officer Pritchard to testify about his encounter with defendant on 26 August 2006.

On 14 November 2007, the jury found defendant guilty of one count of assault with a deadly weapon upon a government official (Officer Pritchard), one count of loitering for the purpose of engaging in drug-related activity, and two counts of failure to heed light or siren. In a judgment entered 14 November 2007, the trial court consolidated the four convictions for judgment, determined that defendant had a prior record level of II, and sentenced him to 19 to 23 months of imprisonment. Defendant appeals.

II. Winston-Salem City Ordinance § 38-29

Defendant argues that the trial court erred in denying his motion to dismiss the charge of loitering for the purpose of engaging in drug-related activity and contends that the Ordinance is unconstitutionally overbroad and vague. The Ordinance provides that:

(b) It shall be unlawful for a person to remain or wander about in a public place under circumstances manifesting the purpose to engage in a violation of the North Carolina Controlled Substances Act, G.S. 90-89 et seq. Such circumstances are:

(1) Repeatedly beckoning to, stopping or attempting to stop passersby, or repeatedly attempting to engage passersby in conversation;

(2) Repeatedly stopping or attempting to stop motor vehicles;

(3) Repeatedly interfering with the free passage of other persons;

(4) Such person behaving in such a manner as to raise a reasonable suspicion that he is about to engage in or is engaged in an unlawful drug-related activity;

(5) Such person repeatedly passing to or receiving from passersby, whether on foot or in a vehicle, money or objects;

(6) Such person taking flight upon the approach or appearance of a police officer; or

(7) Such person being at a location frequented by persons who use, possess or sell drugs.

Winston-Salem City Ordinance § 38-29(b) (2009). The indictment alleged that defendant violated § 38-29(b)(4) and (7) of the Ordinance by "behaving in such a manner as to raise a reasonable suspicion that he is about to engage in or is engaged in an unlawful drug-related activity" and being "at a location frequented by persons who use, possess or sell drugs[.]" See id.

"In challenging the constitutionality of a statute, the burden of proof is on the challenger, and the statute must be upheld unless its unconstitutionality clearly, positively, and unmistakably appears beyond a reasonable doubt or it cannot be upheld on any reasonable ground." Guilford Co. Bd. of Education v. Guilford Co. Bd. of Elections, 110 N.C.App. 506, 511, 430 S.E.2d 681, 684 (1993). When examining the constitutional propriety of legislation, "[w]e presume that the statutes are constitutional, and resolve all doubts in favor of their constitutionality." State v. Evans, 73 N.C.App. 214, 217, 326 S.E.2d 303, 306 (1985).

A. Overbreadth

A law is impermissibly overbroad if it deters a substantial amount of constitutionally protected conduct while purporting to criminalize unprotected activities. Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362, 369, reh'g denied, 456 U.S. 950, 102 S.Ct. 2023, 72 L.Ed.2d 476 (1982). Legislative enactments that encompass a substantial amount of constitutionally protected activity will be invalidated even if the statute has a legitimate application. Houston v. Hill, 482 U.S. 451, 459, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398, 410 (1987). When raising an overbreadth challenge, the challenger has the right to argue the unconstitutionality of the law as to the rights of others, not just as the ordinance is applied to him. Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830, 840 (1973).

In Evans, we upheld the constitutionality of a statute that prohibited loitering for the purpose of engaging in prostitution, because it required that the person engage in certain acts "for the purpose of violating" anti-prostitution laws. Evans, 73 N.C.App. at 216-18, 326 S.E.2d at 306-07. We reasoned that, although some of the acts encompassed in the loitering statute were constitutionally permissible (i.e., repeatedly attempting to engage passersby in conversation, repeatedly stopping vehicles), the statute "require[d] proof of specific criminal intent, the missing element in unconstitutional `status' offenses such as simple loitering." Id. at 217, 326 S.E.2d at 307 (emphasis added).

Contrary to the statute at issue in Evans, the present Ordinance does not require proof of intent to violate a drug law, but imposes liability solely for conduct that "manifests" such purpose. The State's assertion that we upheld similar language in Evans has no merit. In Evans, we stated that:

American courts have overwhelmingly upheld enactments such as G.S. § 14-204.1 which include an element of criminal intent. Two cases from the Washington Supreme Court illustrate precisely the rationale applied. In City of Seattle v. Drew, 70 Wash.2d 405, 423 P.2d 522 (1967), the court struck down an ordinance which criminalized "wandering abroad" without "satisfactory account." The City then amended the ordinance, adding the requirement that the loitering be "under circumstances manifesting" unlawful purpose. The court upheld the amended ordinance. City of Seattle v. Jones, 79 Wash.2d 626, 488 P.2d 750 (1971). The United States Supreme Court has approved a similar holding by dismissing for want of a substantial federal question. Matter of D., 27 Or.App. 861, 557 P.2d 687 (1976) ("under circumstances manifesting" unlawful purpose) appeal dismissed sub nom. D. v. Juvenile Dept. of Multnomah County, 434 U.S. 914, 98 S.Ct. 385, 54 L.Ed.2d 271 (1977). ... Our statute is functionally equivalent to these enactments, since intent or purpose ordinarily must be shown by circumstantial evidence. Accordingly, we hold that the statute is not void for overbreadth.

Id. at 218, 326 S.E.2d at 307. In Evans, we did not interpret the phrase, "under circumstances manifesting," as the anti-prostitution loitering statute did not contain such language. The law of the case doctrine applies only to "points actually presented and necessary for the determination of the case and not to dicta." Kanipe v. Lane Upholstery, 151 N.C.App. 478, 485, 566 S.E.2d 167, 171, disc. review denied, disc. review dismissed, 356 N.C. 303, 570 S.E.2d 724, 356 N.C. 303, 570 S.E.2d 725 petition for reconsideration dismissed, 356 N.C. 437, 572 S.E.2d 784 (2002). Thus, our citation to cases in other jurisdictions which upheld the constitutionality of such language was dicta, which is not binding on the present case.

Contrary to the State's assertion, the Ordinance in the case sub judice does not require proof of specific criminal intent.¹ The Ordinance lists seven types of actions, each of which, by definition, is "conduct that manifests a purpose" to violate a drug law. Winston-Salem City Ordinance § 38-29(b).

Because the Ordinance fails to require proof of intent, it attempts to curb drug activity by criminalizing constitutionally permissible conduct. Under the Ordinance, anyone who engages in the conduct listed in Ordinance § 38-29(b)(1)-(7) is deemed to possess the requisite intent to engage in drug-related activity, regardless of his or her actual purpose. A law which criminalizes a substantial amount of constitutionally permissible conduct is unconstitutionally overbroad. See Papachristou v. City of Jacksonville, 405 U.S. 156, 164-65, 92 S.Ct. 839, 844-45, 31 L.Ed.2d 110, 117 (1972) (characterizing the right to walk, stroll, or wander with no apparent purpose as an aspect of liberty within "the sensitive First Amendment area"); Coates v. Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214, 217-18 (1971) (holding that a law that prohibited people from congregating in public and engaging in annoying activities abridged the First Amendment right of assembly); Evans, 73 N.C.App. at 217, 326...