State v. Nickens
| Decision Date | 06 November 2018 |
| Docket Number | No. COA 18-45,COA 18-45 |
| Citation | 262 N.C.App. 353,821 S.E.2d 864 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina, v. Kandra Dorell NICKENS, Defendant. |
262 N.C.App. 353
821 S.E.2d 864
STATE of North Carolina,
v.
Kandra Dorell NICKENS, Defendant.
No. COA 18-45
Court of Appeals of North Carolina.
Filed: November 6, 2018
Attorney General Joshua H. Stein, by Assistant Attorney General William A. Smith, for the State.
The Law Office of Sterling Rozear, PLLC, by Sterling Rozear, for defendant-appellant.
HUNTER, JR., ROBERT N., Judge.
Kandra Dorell Nickens ("Defendant") appeals from a 10 August 2017 judgment after a jury convicted her of resisting a law enforcement officer and of second-degree trespass. The trial court sentenced Defendant to a sentence of forty-five days, suspended with twelve months of special, supervised probation and seven days in the custody of the Harnett County Sheriff's Office. Defendant argues on appeal: (1) the indictment was insufficient in the charge of resisting a public officer; (2) the trial court erred by denying Defendant's motion to dismiss the charge of resisting a public officer; (3) the trial court erred by denying Defendant's motion to dismiss the charge of second-degree trespass, due to a fatal variance between the indictment and evidence offered at trial; (4) the trial court erred by denying Defendant's motion to dismiss the charge of second-degree trespass based on Defendant's lack of implied consent to be on the premises; (5) the trial court committed plain error instructing the jury on second-degree trespass; and, (6) Defendant received ineffective assistance of counsel.
We disagree, and hold (1) the indictment alleged sufficient facts for each element of the offenses charged; (2) the trial court did not err in denying Defendant's motions to dismiss the charges of resisting a public officer and second degree trespass based on a fatal variance and lack of implied consent; (3) the trial court did not err in its jury instructions; and, (4) hold defense counsel's performance did not constitute ineffective assistance of counsel.
I. Factual and Procedural Background
On the morning of 12 January 2017, Defendant went to the North Carolina Division of Motor Vehicles ("NCDMV") Driver's License
Office in Erwin, North Carolina, to update her address. Senior Examiner Melissa Overby ("Ms. Overby") assisted Defendant, asked for her driver's license, and told her to take a seat. Defendant, who was wearing a head scarf, complied. Ms. Overby informed Defendant her photo could not be taken if she was wearing the scarf. Ms. Overby then asked Defendant if she had a medical or religious reason for wearing the scarf, and Defendant said she did.
Ms. Overby provided Defendant a "head gear affidavit[ ]," on which Defendant could declare a medical or religious exemption, thus allowing her to wear the scarf in her license photo. Defendant told Ms. Overby she would neither sign the form nor remove her scarf. Defendant then "got upset" and told Ms. Overby she wanted someone else to take her picture. Ms. Overby told Defendant to have a seat in a nearby station until another examiner became available to assist her. Defendant grew more upset, and "started using some cuss words[.]"
Ms. Overby "realized it wasn't going anywhere" and turned to her computer to enter Defendant's driver's license number and enter a note in her file concerning the dispute. At that time, Defendant stood nearby "wanting her driver's license back." Ms. Overby was "listening to her, but not really listening to what she was saying because ... at that point she is upset[.]" Defendant "kept getting louder and louder and louder[.]"
During this time, Inspector Brandon Wall of the NCDMV License and Theft Bureau ("Inspector Wall") was in his office in a separate part of the building when a loud voice drew his attention. A former detective with the Lee County Sheriff's office, Inspector Wall said the voice he heard, "piqued my law enforcement interest." Inspector Wall—dressed in his "Class B" uniform that included a badge, sidearm, and handcuff case—walked from his office to the public lobby of the NCDMV, where he saw Defendant "standing up, talking loudly." He saw Defendant creating a scene that left other customers in the lobby "in disarray" and "looking around, trying to figure out what was going on." Inspector Wall attempted to get Defendant's attention, was unable to do so, and subsequently approached her. Inspector Wall saw that Ms. Overby had Defendant's license in her hand.
Based on Defendant's loud talking and cursing, Inspector Wall told Defendant she needed to leave. Defendant replied "she was in a public building[, s]he wanted a real law enforcement officer[, and s]he wasn't
going to leave." Inspector Wall repeated that "she had to go." He reached to take Defendant's license from Ms. Overby. As Inspector Wall was telling Defendant to leave a second time, he touched Defendant's elbow to "guide her out." Angered by Inspector Wall's action, Defendant yelled at him, "get your f***ing hands off me." Inspector Wall pulled away and reiterated his request for Defendant to leave. His attempts to guide Defendant out of the building were polite, but firm, and the touching was not forceful in nature.
Inspector Wall again reached toward Defendant in an attempt to "guide her" out of the building. Defendant shoved Inspector Wall, and a "pushing match" ensued for "ten seconds to fifteen, twenty seconds." Inspector Wall began trying to effect an arrest. Defendant headed towards the front door, but Inspector Wall believed "that's not an option at this point[.]" As the two struggled, they became "locked up." Inspector Wall tried to restrain Defendant as she tried to get away, and Defendant "lash[ed] out at" Inspector Wall. Inspector Wall then "took [Defendant] down to the ground" and Defendant commented "get off of me" and "I want a real cop[.]" Inspector Wall replied, "I am a cop[,]" and other employees of the DMV told Defendant that Inspector Wall "was a cop as well."
Scared by the events, Ms. Overby called the police. An officer with the Erwin Police Department arrived and assisted Inspector Wall. Defendant was taken to a break room in the back of the building, where she was "still cursing, still yelling." During the struggle, Defendant bit Inspector Wall in the arm, and continued to yell at him and to resist. Inspector Wall also suffered an abrasion to his elbow. Throughout Defendant's interaction with Inspector Wall, she demanded a "real cop," and Inspector Wall and Ms. Overby
told her Inspector Wall was, in fact, "police" and a "real cop."
On 20 February 2017, a grand jury in Harnett County indicted Defendant for one count each of assault inflicting physical injury on a law enforcement officer, resisting a public officer, and second-degree trespass. On 7 August 2017, the case came on for trial in Harnett County Superior Court. On 10 August 2017, a jury found Defendant not guilty of assault inflicting physical injury on a law enforcement officer, and guilty of resisting a public officer and of second-degree trespass. The trial court found Defendant to have a prior record level II for misdemeanor sentencing purposes; sentenced Defendant to 45 days in the custody of the Sheriff of Harnett County; and, suspended the sentence for 12 months of special, supervised probation, with an active term of seven days in the Sheriff's custody. Defendant gave oral notice of appeal.
II. Jurisdiction
Our jurisdiction over an appeal from a final judgment of a North Carolina Superior Court is appropriate pursuant to N.C. Gen. Stat. § 7A-27(b) (2017) and N.C. Gen. Stat. § 15A-1444(a) (2017).
III. Standard of Review
A. Sufficiency of the Indictment
When evaluating the sufficiency of an indictment, North Carolina law has established
[t]here can be no trial, conviction, or punishment for a crime without a formal and sufficient accusation. In the absence of an accusation the court acquires no jurisdiction whatever, and if it assumes jurisdiction a trial and conviction are a nullity. [W]here an indictment is alleged to be invalid on its face, thereby depriving the trial court of [subject matter] jurisdiction, a challenge to that indictment may be made at any time, even if it was not contested in the trial court. This Court review[s] the sufficiency of an indictment de novo . An arrest of judgment is proper when the indictment wholly fails to charge some offense cognizable at law or fails to state some essential and necessary element of the offense of which the defendant is found guilty. The legal effect of arresting the judgment is to vacate the verdict and sentence of imprisonment below, and the State, if it is so advised, may proceed against the defendant upon a sufficient bill of indictment.
State v. Harris , 219 N.C. App. 590, 593, 724 S.E.2d 633, 636 (2012) (citations and internal quotation marks omitted, alterations in Harris ).
B. Motions to Dismiss
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State v. Cheeks, COA18-884
...variance between the indictment and evidence presented at trial by raising it before the trial court. See State v. Nickens , ––– N.C. App. ––––, ––––, 821 S.E.2d 864, 874 (2018) ("This Court repeatedly has held a defendant must preserve the right to appeal a fatal variance. If the fatal var......
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State v. Tarlton
...the manner in which the defendant is charged with having resisted, delayed, or obstructed the officer." State v. Nickens , 262 N.C. App. 353, 360, 821 S.E.2d 864, 871 (2018) (emphasis added) (citations omitted). Here, the indictment for resisting a public officer alleged that Defendant "unl......
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