State v. Newborn, COA20-411

Docket NºNo. COA20-411
Citation864 S.E.2d 752, 279 N.C.App. 42
Case DateAugust 17, 2021
CourtCourt of Appeal of North Carolina (US)

279 N.C.App. 42
864 S.E.2d 752

STATE of North Carolina
v.
Cordero Deon NEWBORN, Defendant.

No. COA20-411

Court of Appeals of North Carolina.

Filed August 17, 2021


Attorney General Joshua H. Stein, by Associate Attorney General Jarrett McGowan, for the State.

Joseph P. Lattimore, for defendant-appellant.

MURPHY, Judge.

¶ 1 When the charge of possession of a firearm by a felon is brought in an indictment containing other related offenses, the indictment for that charge is rendered fatally defective and invalid, thereby depriving a trial court of jurisdiction over it. See State v. Wilkins, 225 N.C. App. 492, 497, 737 S.E.2d 791, 794 (2013). When a trial court makes a conclusion of law while denying a motion to suppress, it must do so with the support of adequate findings of fact that resolve any material conflicts presented by the evidence.

¶ 2 Defendant was charged with possession of a firearm by a felon and two related offenses in a single indictment. The State's failure to obtain a separate indictment for the charge rendered it fatally defective and invalid, and did not invoke the trial court's jurisdiction. According to binding caselaw, we vacate Defendant's conviction for possession of a firearm by a felon.

¶ 3 Additionally, the trial court's ruling on Defendant's Motion to Suppress was based on improper findings of fact regarding a material conflict in the evidence of the firearm's accessibility. Given the absence of appropriate findings of fact pertaining to this material conflict, the trial court improperly concluded that the firearm was readily accessible so as to objectively create probable cause that it was evidence of a crime. We therefore remand this matter with instructions for the trial court to make adequate findings of fact resolving the material conflict regarding the firearm's accessibility presented by Defendant's Motion to Suppress.

¶ 4 Finally, because the trial court's findings on remand will directly impact the validity of Defendant's non-vacated convictions, Defendant's third issue on appeal regarding the trial court's omission of an actual knowledge requirement from its jury instruction on possession of a firearm with an altered/removed serial number, and related ineffective assistance of counsel claim, are not yet ripe for our consideration and are therefore dismissed without prejudice.

BACKGROUND

¶ 5 At approximately 11:30 p.m. on 25 April 2018 in Maggie Valley, an on-duty patrol officer, Sergeant Ryan Flowers, ran the registration plate of a vehicle driving on U.S. Highway 19 through his patrol vehicle's mobile data terminal ("MDT"). The MDT indicated that Defendant Cordero Deon Newborn was the registered owner of the vehicle and had a permanently revoked driver's license. Based on this information, Sgt. Flowers pursued the vehicle and checked the MDT for pending criminal cases, which reflected Defendant had four counts of misdemeanor driving while license revoked-not impaired revocation cases pending. After catching up with the vehicle, Sgt. Flowers initiated a traffic stop.

¶ 6 Sgt. Flowers verified Defendant was the driver of the vehicle. Immediately upon interacting with Defendant and his passenger, Samuel Nathanial Angram, III, Sgt. Flowers identified the smell of marijuana emanating from the vehicle. When he inquired about the odor, Angram reportedly stated "[t]here's none in here, man. I just smoked a little in the car a while ago." Citing "probable cause ... [to] believe [ ] marijuana was located in the vehicle" based on the odor and Angram's admission, Sgt. Flowers decided to conduct a search of the vehicle, and called for backup.

864 S.E.2d 756

¶ 7 Sergeant Jeff Mackey arrived on the scene. Angram indicated to Sgt. Mackey that there was a firearm underneath the passenger seat, which Sgt. Mackey located. While searching the driver's side of the vehicle–where the smell of marijuana was reportedly most pungent–Sgt. Flowers felt and visually identified the handgrip of a pistol between the vehicle's center console panel and carpeting, and placed Defendant under arrest for carrying a concealed weapon in violation of N.C.G.S. § 14-269(a). Sgt. Flowers then removed the vehicle's plastic center console panel from the center and retrieved the firearm–a loaded, .45-caliber semiautomatic handgun that was missing a serial number on its frame and barrel.1

¶ 8 On 6 August 2018, Defendant was indicted for possession of a firearm by a felon in violation of N.C.G.S. § 14-415.1 ; possession of a firearm with an altered/removed serial number in violation of N.C.G.S. § 14-160.2(b) ; and carrying a concealed weapon in violation of N.C.G.S. § 14-269(a). In a separate indictment, Defendant was charged with attaining habitual felon status as defined by N.C.G.S. § 14-7.1.

¶ 9 On 11 March 2019, Defendant filed a pretrial Motion to Suppress any evidence seized during the traffic stop. The motion was heard and denied on 22 October 2019, after the trial court found that Sgt. Flowers described the firearm as "readily accessible." However, the trial court made no findings as to the firearm's readily accessible location. At trial, Defendant did not raise a renewed objection when materials pertaining to the firearm seized from the center console area were introduced and admitted into evidence.

¶ 10 The jury found Defendant guilty of possession of a firearm by a felon, possession of a firearm with an altered/removed serial number, and carrying a concealed weapon. As a result of the guilty verdicts, Defendant pled guilty to attaining habitual felon status.2 On 25 October 2019, the trial court entered judgment, and Defendant provided oral notice of appeal.

¶ 11 Defendant raises three issues on appeal: (A) the trial court lacked jurisdiction over the charge of possession of a firearm by a felon because it was not contained in a separate indictment as required by the governing statute; (B) the trial court plainly erred in denying Defendant's pretrial Motion to Suppress ; and (C) the trial court plainly erred by failing to instruct the jury on the requirement of actual knowledge as an element of the offense of possession of a firearm with an altered/removed serial number.

ANALYSIS

A. Indictment for Possession of a Firearm by a Felon

¶ 12 "We review the sufficiency of an indictment de novo. " Wilkins , 225 N.C. App. at 495, 737 S.E.2d at 793. While Defendant failed to challenge his indictment for the charge of possession of a firearm by a felon at the trial court, "where an indictment is alleged to be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge to that indictment may be made at any time, even if it was not contested in the trial court." State v. Wallace , 351 N.C. 481, 503, 528 S.E.2d 326, 341, cert. denied , 531 U.S. 1018, 121 S.Ct. 581, 148 L. Ed. 2d 498 (2000), reh'g denied, 531 U.S. 1120, 121 S.Ct. 872, 148 L. Ed. 2d 784 (2001).

¶ 13 N.C.G.S. § 14-415.1(c) dictates "[t]he indictment charging [a] defendant [with possession of a firearm by a felon] shall be separate from any indictment charging him with other offenses related to or giving rise to [that] charge[.]" N.C.G.S. § 14-415.1(c) (2019).

864 S.E.2d 757

¶ 14 Defendant's charge of possession of a firearm by a felon was contained in a single indictment with two other charges: possession of a firearm with an altered/removed serial number and carrying a concealed weapon. Defendant quotes N.C.G.S. § 14-415.1(c) and asserts these charges are "relate[d] to or giv[e] rise to" the possession of a firearm by a felon charge, given that all three charges pertain to the same weapon and arose from the same search. In support of his contention, Defendant cites Wilkins , where we held the language of N.C.G.S. § 14-415.1(c) "mandates that a charge of [p]ossession of a [f]irearm by a [f]elon be brought in a separate indictment from charges related to it[.]" Wilkins , 225 N.C. App. at 497, 737 S.E.2d at 794.

¶ 15 In Wilkins , the defendant was indicted for possession of a firearm by a felon and assault with a deadly weapon. Id. at 493, 737 S.E.2d at 793. Both charges were listed in the same indictment, referred to the same weapon, and arose from the same incident–the defendant's use of a firearm during a robbery. Id. at 496, 737 S.E.2d at 794. Giving "effect to the intent of the legislature as expressed in the statute's plain language[,]" we concluded the State's failure to obtain a separate indictment for that charge rendered it "fatally defective, and thus invalid." Id. at 497, 737 S.E.2d at 794. As a result, we held the trial court lacked jurisdiction over the charge of possession of a firearm by a felon, and vacated the defendant's conviction for the offense. Id.

¶ 16 In response to Defendant's arguments regarding the separate indictment requirement, the State urges that Wilkins , and any cases consistent with it, must be read in light of State v. Brice , where our Supreme Court addressed a special indictment provision contained in N.C.G.S. § 15A-928(b). State v. Brice , 370 N.C. 244, 249, 806 S.E.2d 32, 36 (2017). N.C.G.S. § 15A-928(b) requires, inter alia , that "[a]n indictment or information for the offense must be accompanied by a special indictment ...." N.C.G.S. § 15A-928(b) (2019). In Brice , our...

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3 practice notes
  • State v. Ambriz, COA21-674
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 1 Noviembre 2022
    ...¶ 20. "Competent evidence is evidence that a reasonable mind might accept as adequate to support the finding[s]." State v. Newborn, 279 N.C.App. 42, 49, 2021-NCCOA-426, ¶ 24 (quotation omitted). ¶ 27 The timeline for this case is complex, with several distinct periods of time for considerat......
  • State v. Hunter, COA22-126
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 18 Octubre 2022
    ...and (3) it was immediately apparent to the police that the items observed were evidence of a crime or contraband. State v. Newborn, 279 N.C.App. 42, 2021-NCCOA-426, ¶ 37 (emphasis and citation omitted). "Our courts have defined the term immediately apparent as being satisfied where the poli......
  • 85' & Sunny, LLC v. Currituck Cnty., COA20-648
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 17 Agosto 2021
    ...proposed swimming pool is an impermissible expansion, enlargement, and intensification of a nonconforming use and is not permitted under 864 S.E.2d 752 the UDO. The superior court incorrectly applied de novo review and erred by reversing the Board's conclusion that the remaining new facilit......
3 cases
  • State v. Ambriz, COA21-674
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 1 Noviembre 2022
    ..."Competent evidence is evidence that a reasonable mind might accept as adequate to support the finding[s]." State v. Newborn, 279 N.C.App. 42, 49, 2021-NCCOA-426, ¶ 24 (quotation omitted). ¶ 27 The timeline for this case is complex, with several distinct periods of time for consid......
  • State v. Hunter, COA22-126
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 18 Octubre 2022
    ...and (3) it was immediately apparent to the police that the items observed were evidence of a crime or contraband. State v. Newborn, 279 N.C.App. 42, 2021-NCCOA-426, ¶ 37 (emphasis and citation omitted). "Our courts have defined the term immediately apparent as being satisfied where the......
  • 85' & Sunny, LLC v. Currituck Cnty., COA20-648
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 17 Agosto 2021
    ...proposed swimming pool is an impermissible expansion, enlargement, and intensification of a nonconforming use and is not permitted under 864 S.E.2d 752 the UDO. The superior court incorrectly applied de novo review and erred by reversing the Board's conclusion that the remaining new facilit......

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