State v. Scott

• Decision Date: 18 September 2001
• Docket Number: No. COA00-479.,COA00-479.
• Citation: 551 S.E.2d 916,146 NC App. 283
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Brian Alexander SCOTT.

551 S.E.2d 916

146 NC App. 283

STATE of North Carolina v. Brian Alexander SCOTT.

No. COA00-479.

Court of Appeals of North Carolina.

September 18, 2001.

Attorney General Michael F. Easley, by Special Deputy Attorney General Isaac T. Avery, III, for the State.

Daniel Shatz, Durham, for defendant-appellee.

CAMPBELL, Judge.

Defendant was indicted on charges of driving while impaired, driving while license revoked, habitual driving while impaired, carrying a concealed weapon, possession of a firearm by a felon, and for being a habitual felon. Prior to trial, defendant informed the trial court that he intended to plead guilty to the driving while license revoked charge, and that he would do so at the conclusion of the trial on the remaining charges.

At the conclusion of the State's case in chief on the driving while impaired, concealed weapon, and possession of a firearm by a felon charges, defendant moved to dismiss the charges against him due to insufficient evidence. This motion was denied by the trial court. The jury found defendant not guilty of carrying a concealed weapon and possession of a firearm by a felon, but guilty of driving while impaired. Defendant then moved again for dismissal of the impaired driving charge based on insufficient evidence under N.C. Gen.Stat. § 15A-1227(a)(3) (1999). The trial court granted this motion. Having no other felony charges pending against him, the trial court also dismissed the habitual felon charge.

The State has appealed to this Court contending that the trial court erred in granting defendant's N.C. Gen.Stat. § 15A-1227(a)(3) motion to dismiss based on insufficient evidence. Defendant asserts the State has no right to bring this appeal. Thus, we address this issue first.

At common law, the State had no right to bring an appeal. State v. Ausley, 78 N.C.App. 791, 338 S.E.2d 547 (1986). Therefore, the State may only appeal a ruling if authorized to do so by statute. Id. N.C. Gen.Stat. § 15A-1445(a)(1) (1999) authorizes an appeal by the State where "there has been a decision or judgment dismissing criminal charges as to one or more counts," unless "the rule against double jeopardy prohibits further prosecution."

Clearly, granting defendant's motion to dismiss based on insufficient evidence was a "decision or judgment dismissing criminal charges." Therefore the State is within the statutory authority to bring this appeal as long as it does not violate the rule against double jeopardy. N.C. Gen.Stat. § 15A-1445(a)(1). The Double Jeopardy Clause is embodied in the Fifth Amendment of the United States Constitution, and its principles apply to the states through the Fourteenth Amendment. State v. Sanderson, 346 N.C. 669, 676, 488 S.E.2d 133, 136 (1997). The Double Jeopardy Clause ensures that "[o]nce a defendant has been tried for and acquitted of a crime ... [he is protected] from being tried again for that crime," id., and it acts to protect the individual from "being subjected to [the] `embarrassment, expense and ordeal,'" of a second trial. State v. Gilley, 135 N.C.App. 519, 526, 522 S.E.2d 111, 116 (1999) (quoting State v. Gardner, 315 N.C. 444, 452, 340 S.E.2d 701, 707 (1986)).

Defendant contends that N.C. Gen.Stat. § 15A-1227(a)(3) (dismissal for insufficient evidence) and N.C. Gen.Stat. § 15-173 (1999) (allowing a motion for nonsuit, i.e., a dismissal for insufficient evidence) should be read together. When read together, defendant argues, these provisions imply that when the trial court granted defendant's motion to dismiss for insufficient evidence, it had "the force and effect of a verdict of `not guilty' " on appeal. N.C. Gen.Stat. § 15-173. Therefore, since the dismissal had the effect of a not guilty verdict, any further prosecution would violate the provisions of double jeopardy. We disagree.

When the State appeals from a criminal proceeding, and a reversal at the appellate level would result in a new trial— requiring defendant to once again defend himself, with all the emotional and monetary burdens associated therewith—the rule against double jeopardy would prohibit further prosecution. Thus, N.C. Gen.Stat. § 15A-1445(a)(1) does not authorize an appeal by the State in that situation. However, where, as in the case before us, the reversal would only serve to reinstate the verdict rendered by the jury, defendant is in no danger of reprosecution, and the appeal does not place the defendant in double jeopardy. As stated by the United States Supreme Court in United States v. Wilson, 420 U.S. 332, 344-45, 95 S.Ct. 1013, 1022-23, 43 L.Ed.2d 232, 242 (1975), where "reversal on appeal would merely reinstate the jury's verdict, review of such an order does not offend the policy against multiple prosecution." Accordingly, "where there is no threat of either multiple punishment or successive prosecutions, the Double Jeopardy Clause is not offended." Id. at 344, 95 S.Ct. at 1022, 43 L.Ed.2d at 242; see also Smalis v. Pennsylvania, 476 U.S. 140, 145 n. 8, 106 S.Ct. 1745, 1749 n.8, 90 L.Ed.2d 116, 122 n. 8 (1986)

; State v. Metcalfe, 328 Or. 309, 974 P.2d 1189, 1192-93 (1999); State v. Cetnar, 341 N.J.Super. 257, 775 A.2d 198, 203-04 (App.Div. 2001); State v. Timoteo, 87 Hawai'i 108, 952 P.2d 865, 869 (1997); State v. Vorgvongsa, 692 A.2d 1194, 1198 (R.I.1997).

In the case sub judice, defendant has already had his trial, had his right to be heard and to present evidence, and will suffer no further harm (other than imposition of punishment) should this Court reverse the trial court's order, for the original jury verdict finding defendant guilty of driving while impaired would simply be reinstated. The emphasis of double jeopardy is on the possibility of defendant being subjected to a new trial—not whether the dismissal acts as a verdict of not guilty. As long as defendant would not be subjected to a new trial on the issues, his double jeopardy rights have not been violated. Therefore, we hold that the State may lawfully bring this appeal, as it does not violate the rule against double jeopardy.

Having held that the State is entitled to bring this appeal, we turn to the assignment of error before us: whether the trial court was correct in granting defendant's motion to dismiss the impaired driving charge based on insufficient evidence. As both parties agree that the only element of this offense in question is whether or not defendant was impaired, we will...