State v. Newman

• Decision Date: 16 October 2007
• Docket Number: No. COA06-1523.,COA06-1523.
• Citation: 651 S.E.2d 584
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina, Plaintiff v. Sheila NEWMAN, Defendant.

651 S.E.2d 584

STATE of North Carolina, Plaintiff v. Sheila NEWMAN, Defendant.

No. COA06-1523.

Court of Appeals of North Carolina.

October 16, 2007.

Appeal by the State from judgment entered 9 August 2006 by Judge Abraham Penn Jones in Superior Court, Vance County. Heard in the Court of Appeals 7 June 2007.

Attorney General Roy A. Cooper, III by Assistant Attorney General, Chris Z. Sinha, for the State.

Stubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott Holmes, Durham, for Defendant-Appellee.

STROUD, Judge.

This matter is before the Court on the State's appeal from the trial court order dismissing one of two criminal charges pending against defendant Sheila Newman. We reverse the trial court's dismissal of the charge of resisting, delaying or obstructing a public officer.

I. Background

On 6 March 2004, defendant was charged with second degree trespass ("trespass"), resisting, delaying or obstructing a public officer¹ ("RDO"), and assault on a government official. Henderson Police Department Officer K.M. Riddick was investigating a call concerning a disruptive customer at Sally Reid's Junk Shack ("Junk Shack"). All of defendant's charges arose out of an incident that occurred on 6 March 2004 at the Junk Shack.

On 26 July 2004, defendant pled not guilty to all the charges and was tried in District Court, Vance County. District Court Judge Daniel Finch found defendant guilty of trespass and RDO. However, Judge Finch found defendant not guilty of assault on a government official. On 29 July 2004, defendant filed notice of appeal from the judgment entered upon her convictions in district court for trespassing and RDO.

This matter was heard in Superior Court, Vance County on or about 9 August 2006 before Judge Abraham Penn Jones. Defendant made an oral motion to dismiss both charges. After hearing argument from both parties, the trial court granted defendant's motion as to the charge of RDO and denied defendant's motion as to the charge of trespassing. Thereafter, the State moved to continue trial on the charge of trespassing. Judge Jones indicated that he would prefer to proceed with the trial, after which the court took a brief recess. Upon return from the recess, the State gave notice of appeal from the court's dismissal of the charge of RDO. The State then renewed its motion to continue the trial on the charge of trespassing, which the trial court granted. On 15 March 2007, defendant moved to dismiss the State's appeal arguing, in part, that the trial court order dismissing one of two criminal charges pending against defendant is interlocutory.

II. Defendant's Motion to Dismiss on the Grounds of an Interlocutory Appeal

The State's right to appeal in this matter is governed by N.C. Gen.Stat. § 15A-1445(a)(1): "(a) Unless the rule against double jeopardy prohibits further prosecution, the State may appeal from the superior court to the appellate division: (1) When there has been a decision or judgment dismissing criminal charges as to one or more counts." N.C. Gen.Stat. § 15A-1445(a)(1) (2005). In this case, the charging document contained three counts. One was dismissed in District Court, one was dismissed in Superior Court, and one is still pending in Superior Court.

"As a general rule an appeal will not lie until there is a final determination of the whole case. It lies from an interlocutory order only when it puts an end to the action or where it may destroy or impair or seriously imperil some substantial right of the appellant." State v. Ward, 46 N.C.App. 200, 204, 264 S.E.2d 737, 740 (1980) (internal citation and quotations omitted). This Court held in Ward that an order dismissing a charge without prejudice was not a final order and therefore dismissed the state's appeal as interlocutory under N.C. Gen.Stat. § 15A-1445. Id. at 204-05, 264 S.E.2d 737, 740-41. We find no case addressing an appeal by the State of the dismissal with prejudice of one count against a defendant where there is still another count pending. We must therefore examine the language of N.C. Gen.Stat. § 15A-1445(a)(1). See N.C. Gen. Stat. § 15A-1445(a)(1).

The language of this statute is not ambiguous, and so "we use accepted principles of statutory construction by applying the plain and definite meaning of the words therein" to analyze the statute. State v. Bryant, 361 N.C. 100, 102, 637 S.E.2d 532, 534 (2006). N.C. Gen.Stat. § 15A-1445(a)(1) permits the state to appeal from a "decision or judgment dismissing criminal charges as to one or more counts." N.C. Gen.Stat. § 15A-1445(a)(1) (emphasis added).

Entry of judgment in a criminal case is defined by N.C. Gen.Stat. § 15A-101 as follows: "Judgment is entered when sentence is pronounced." N.C. Gen.Stat. § 15A-101(4a) (2005). The trial court did not pronounce a sentence in this case and thus there was no "judgment". See id. Therefore we must consider if the trial court made a "decision". See N.C. Gen.Stat. § 15A-1445(a)(1).

We find no statutory definition of "decision" for purposes of Chapter 15A and no formal definition of "decision" in our case law. Black's Law Dictionary defines "decision" as

[a] determination arrived at after consideration of facts, and, in legal context, law.

A determination of a judicial or quasi judicial nature. A judgment or decree pronounced by a court in settlement of a controversy submitted to it and by way of authoritative answer to the questions raised before it. The term is broad enough to cover both final judgments and interlocutory orders.

Black's Law Dictionary 366 (5th ed. 1979). "While a final judgment always is a final decision, there are instances in which a final decision is not a final judgment." Stack v. Boyle, 342 U.S. 1, 12, 72 S.Ct. 1, 96 L.Ed. 3, 10 (1951) (Jackson, J., separate opinion).

In this case, there was a decision, dismissal of the charge of RDO, but not a judgment because a sentence was not pronounced. See Black's Law Dictionary 366, N.C. Gen.Stat. § 15A-101(4a) (2005). The trial court did make a "decision" on one count of the charges against defendant. See Black's Law Dictionary 366. The statute permits appeal from a "decision" as well as a "judgment." See N.C. Gen.Stat. § 15A-1445(a)(1). If the legislature had intended that the state not be able to appeal unless and until the court dismissed all counts against a defendant or entered a "judgment", the statute would not refer to a "decision" or dismissal of "one or more counts." See id. Therefore, under the plain language of N.C. Gen.Stat. § 15A-1445(a)(1), the State has a right to appeal the dismissal of one count and this appeal is not interlocutory. See id.

III. Defendant's Motion to Dismiss on the Grounds of Double Jeopardy

In addition to arguing the State's appeal was interlocutory in her motion to dismiss, defendant argued the appeal should be dismissed because double jeopardy had attached. The State may "appeal the dismissal of criminal charges only when further prosecution would not be barred by the rule against double jeopardy." State v. Priddy, 115 N.C.App. 547, 550, 445 S.E.2d 610, 613, disc. rev. denied, 337 N.C. 805, 449 S.E.2d 751 (1994); see also N.C. Gen.Stat. § 15A-1445(a)(1). However, in a criminal trial such as this, jeopardy does not attach until "a competent jury has been empaneled and sworn." Id. at 550, 445 S.E.2d at 613. Defendant made her oral motion to dismiss before jury selection had even begun. Jeopardy had not attached. See id. We therefore deny defendant's motion to dismiss this appeal on the grounds of double jeopardy.

IV. Double Jeopardy

We must next consider the substantive grounds of this appeal, whether the trial court erred in dismissing the charge of RDO on the grounds of double jeopardy. Defendant made an oral motion to dismiss the charge of RDO based upon the argument that the same evidence which was presented against her in the district court trial would be used against her again in the superior court trial of the RDO charge. Defendant argued this would violate her constitutional protection from double jeopardy under the United States Constitution. See U.S. Const. amend. V. The trial court granted the defendant's motion to dismiss the RDO charge.

The standard of review for this issue is de novo, as the trial court made a legal conclusion regarding the defendant's exposure to double jeopardy. See State v. Ross, 173 N.C.App. 569, 573, 620 S.E.2d 33, 36 (2005), aff'd, per curiam, 360 N.C. 355, 625 S.E.2d 779 (2006). A trial court's legal conclusions are reviewable de novo. Id.

The Double Jeopardy clause of the Fifth Amendment of the United States Constitution is applicable to the states through the 14th Amendment. Id. The clause provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb[.]" U.S. Const. amend. V. "It is well established that the Double Jeopardy Clause of the North Carolina and United States Constitutions protect against (1) a second prosecution after acquittal for the same offense, (2) a second prosecution after conviction for the same offense, and (3) multiple punishments for the same offense." State v. Priddy, 115 N.C.App. 547, 550, 445 S.E.2d 610, 613 (1994) (citation and internal quotations omitted)(discussing State v. Gardner, 315 N.C. 444, 451, 340 S.E.2d 701, 707 (1986)).

"In determining whether two indictments are for the same offense, our courts have used the same-evidence test." State v. Allah, 168 N.C.App. 190, 196, 607 S.E.2d 311, 315, disc. rev. denied, 359 N.C. 636, 618 S.E.2d 232 (2005) (internal quotations omitted). "This test asks two somewhat alternative questions: 1) whether the facts alleged in the second indictment if given in evidence would have sustained a conviction under the first indictment, or 2) whether the same evidence would support a conviction in each case." State v. Ray, 97 N.C.App. 621, 624, 389 S.E.2d 422, 424 (1990). We must apply the same evidence test to determine if the indictments for assault on a government...