State v. Sherrod

• Decision Date: 05 August 2008
• Docket Number: No. COA07-1071.,COA07-1071.
• Citation: 663 S.E.2d 470
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Jamel SHERROD, Defendant.

663 S.E.2d 470

STATE of North Carolina v. Jamel SHERROD, Defendant.

No. COA07-1071.

Court of Appeals of North Carolina.

August 5, 2008.

Appeal by defendant from judgment dated 6 March 2007 by Judge Jerry Braswell in Wayne County Superior Court. Heard in the Court of Appeals 4 March 2008.

Attorney General Roy Cooper, by Assistant Attorney General Thomas M. Woodward, for the State.

Michelle FormyDuval Lynch, for defendant-appellant.

BRYANT, Judge.

Jamel Sherrod (defendant) appeals from a judgment revoking his probation for being in possession of an "explosive device." Because we hold that firearm ammunition alone is not an "explosive device" as connoted in North Carolina General Statute 15A-1343(b)(5), we reverse defendant's conviction.

Facts

Defendant pled guilty to possessing cocaine with intent to sell or deliver on 11 December 2006 and was given a suspended sentence of ten to twelve months on condition that he satisfy the terms of his probation for thirty-six months. As a special condition, defendant was sentenced to the Intensive Supervision Program, and he informed the probation office of his temporary residence at his uncle's house in Fremont, North Carolina.

On 22 January 2007, six weeks after defendant's conviction, Probation Officer Merwyn Smith conducted an unannounced curfew check at the Fremont location. Upon pulling his car into the driveway, Officer Smith watched defendant leave the doorway and close the door behind him on his way inside the house. Officer Smith knocked on the door asking to speak to defendant, but was greeted only by having the door slammed in his face twice. Officer Smith contacted the sheriff's department regarding defendant's suspicious behavior, and a decision was made to conduct a warrantless search pursuant to the special terms of defendant's probation.

Two sheriff's deputies arrived at the residence to assist, and defendant led them to his bedroom. In his drawer chest, a grocery bag was discovered containing .45 caliber hollow point bullets, a separate box of bullets missing several rounds, and a high capacity gun magazine containing about twenty-five nine millimeter bullets.

No firearms were found in defendant's living area, but a further search revealed a shotgun in the hall closet. Defendant's uncle claimed ownership, and no other firearms were found on the premises. Officer Smith filed a violation report the same day, and alleged defendant had breached a regular condition of his probation requiring him to "[p]ossess no firearm, explosive device or other deadly weapon."

A hearing was held on 5 and 6 March 2007 regarding the allegations of the report, and the trial court found that defendant was in constructive possession of an "explosive device" in violation of the regular terms of his probation. Judgment was announced in open court on 6 March 2007, and notice of appeal was given thereafter.

Defendant raises two assignments of error on appeal: (I) whether the trial court abused its discretion in revoking defendant's probation by finding him in possession of an "explosive device" when no evidence was offered to support a finding that a bullet is an "explosive device"; and, (II) whether the trial court erred in convicting defendant of a probation violation for possessing an "explosive device" when insufficient written findings were made to support such a conclusion. Because we hold that firearm ammunition, by itself, does not qualify as an "explosive device" as a matter of law under the first assignment of error, we need not address defendant's second assignment of error.

Standard of Review

Findings made in support of revoking probation must be supported by competent evidence, and will not be disturbed on appeal without a showing that the trial court committed a "manifest abuse of discretion." State v. Guffey, 253 N.C. 43, 45, 116 S.E.2d 148, 150 (1960). Alleged violations of probationary conditions need not be proven beyond a reasonable doubt, rather, the evidence need only be sufficient to reasonably satisfy the judge in the exercise of his sound discretion that a valid condition of the suspended sentence has been violated. State v. Tennant, 141 N.C.App. 524, 526, 540 S.E.2d 807, 808 (2000). Probation will only be revoked if the State satisfies its burden of proof to show that defendant either willfully violated a term of probation or violated a condition without lawful excuse. State v. Lucas, 58 N.C.App. 141, 145, 292 S.E.2d 747, 750 (1982).

I

This appeal illustrates the balance between the trial court's obligation to punish a defendant's abuse of the grace extended to him and a defendant's right to rely on the terms of his probation. State v. Hewett, 270 N.C. 348, 352-53, 154 S.E.2d 476, 479 (1967). In this case, irrespective of defendant's actions, the abuse alleged does not rise to the level of a probation violation within the terms of the agreement between defendant and the State.

Our examination must begin by noting that the General Assembly has not defined "explosive device" within Chapter 15A, and other definitions of "explosive device" within our code are limited such that they do not apply to N.C.G.S. § 15A-1343. See N.C. Gen.Stat. § 14-50.1 (2007) (definition of "explosive or incendiary device or material" limited to Art. 13 of Ch. 14); N.C. Gen.Stat. § 14-72(b)(3) (2007) (separate definition of the term "explosive or incendiary device or substance" limited to section); N.C.Gen.Stat. § 14-288.20(a)(3) (2007) (term "explosive or incendiary device" limited to section). Therefore, absent a definition, it is unclear whether firearm ammunition of the type seized in this case qualifies as an "explosive device" under the regular term of probation contained in N.C.G.S. § 15A-1343(b)(5). As a result, our analysis of legislative intent will be guided by principles of statutory construction set forth by our North Carolina Supreme Court. In re Banks, 295 N.C. 236, 239-40, 244 S.E.2d 386, 389 (1978).

A. Statutory Construction.

"If the language of the statute is ambiguous or lacks precision, or is fairly susceptible of two or more meanings, the intended sense of it may be sought by the aid of all pertinent and admissible considerations." Abernethy v. Board of Commissioners, 169 N.C. 631, 636, 86 S.E. 577, 580 (1915). Proper considerations include "the law as it existed at the time of its enactment, the public policy of the State as declared in judicial opinions and legislative acts, the public interest, and the purpose of the act." Kendall v. Stafford, 178 N.C. 461, 469, 101 S.E. 15, 16 (1919).

Regarding criminal statutes in particular, our Supreme Court has held that the purpose of a statute will not:

be extended by implication so as to embrace cases not clearly within its meaning. If there be reasonable doubt arising as to whether the acts charged to have been done, are within its meaning, the party of whom the penalty is demanded is entitled to the benefit of that doubt. ... [I]t must always be taken that penalties are imposed by the legislative authority only by clear and explicit enactments. That is, the purpose to impose the penalty must clearly appear. Such enactments ... must be construed strictly together, but as well ... in the light of reason.

Hines & Battle v. Wilmington & W.R. Co., 95 N.C. 434, 438 (1886)(emphasis added). Moreover, statutes should be sensibly rather than liberally construed, and their meaning kept within the limits of what the words themselves allow. Grocery Co. v. R. R., 170 N.C. 241, 243, 87 S.E. 57, 58 (1915). Because of these constrictions, where the existence of an omission by the legislature facilitates the exoneration of accused individuals, it is not the role of this Court to supply a remedy by "resort[ing] to strained constructions of criminal statutes." State v. Massey, 103 N.C. 356, 360, 9 S.E. 632, 633 (1889).

B. History of the Regular Conditions of Probation

The House Committee on Courts and Administration of Justice (the Committee) first considered the contents of what later became the current form of N.C.G.S. § 15A-1343(b)(5) in 1983. H. COMM. ON COURTS AND ADMIN. OF JUSTICE, Meeting Minutes at 1 (N.C. Apr. 12, 1983)[Meeting]. House Bill 455, otherwise titled "An Act to Establish Uniform Regular and Special Conditions of Probation," was proposed as part of a comprehensive effort by the Courts Commission (the Commission) to increase consistency, efficiency, and predictability in the North Carolina court system. REPORT OF THE COURTS COMM. TO THE N.C. GEN. ASSEMBLY (1983). Among other reforms, the purpose of the legislation was to provide to the trial court a set of regular conditions to be routinely imposed and a set of special conditions to be discretionarily imposed. Id. at 29.

One of the regular conditions proposed by the Commission and adopted into the first draft of H.B. 455 specified:

[a]s [a] regular condition[ ] of probation, a defendant must: ... (6) [p]ossess no firearm, destructive device or other dangerous weapon without the written permission of the court.

REPORT, supra, at App. K. At a meeting held on 12 April 1983, the Committee sent this condition along with the rest of H.B. 455 to the University of North Carolina Institute of Government (the IOG)¹ for further study. Meeting, supra, at 2.

On 25 April 1983, the IOG sent its recommendations back to the Committee, and proposed that the regular condition in issue be revised to state that defendant must "[p]ossess no firearm, explosive device or other deadly weapon listed in G.S. 14-269 without the written permission of the court." Memorandum from Jim Drennan, Institute of Government, to Robert Hunter, N.C. House Representative (Apr. 25, 1983)(on file with the Legislative Library of the N.C. General Assembly). In explaining why the language of this particular condition was changed, the IOG stated plainly: "[t]he regular condition prohibiting possession of weapons is rewritten to provide greater clarity[.]" Id. at 1 (emphasis added).

In ...