State v. Tarlton
| Decision Date | 07 September 2021 |
| Docket Number | No. COA20-100,COA20-100 |
| Citation | 864 S.E.2d 810 |
| Parties | STATE of North Carolina v. Jody Allen TARLTON, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General Alexander H. Ward, for the State.
Jarvis John Edgerton, IV, for defendant.
¶ 1 Jody Allen Tarlton ("Defendant") appeals from a judgment entered upon a jury verdict finding him guilty of possession with intent to sell and deliver methamphetamine, possession of heroin, misdemeanor possession of marijuana, possession of drug paraphernalia, resisting a public officer, and attaining habitual felon status. Defendant argues that the trial court erred in denying his motion to dismiss the charge of resisting a public officer because there was a fatal variance between the indictment and the evidence introduced at trial. Because the evidence at trial conformed to the allegations in the indictment as to the essential elements of the crime of resisting a public officer, we conclude there was no error.
¶ 2 The State's evidence tended to show that on 15 May 2018 at approximately 10:00 A.M., Detective David Todd Haigler of the Monroe Police Department received a phone call from a confidential informant. The confidential informant said Defendant—a white male carrying a "blue/black/gray camo in color book bag" and wearing blue jeans and a hat—would be at the Citgo Station on East Roosevelt Boulevard with "a significant amount of methamphetamine in [his] book bag." Along with Sergeant Nick Brummer and Officer Travis Furr, Detective Haigler drove to the Citgo Station, where he "observed a white male matching the description ... [who] had in his possession a camo book bag that was also described to [him] by the confidential informant." For approximately twenty minutes, the officers watched Defendant as he stood outside the store.
¶ 3 When Sergeant Brummer and Detective Haigler got out of their vehicles and approached Defendant, he was "sitting down[;] he had a bag with him[;] and he had a knife on his side." Sergeant Brummer testified that he asked Defendant "if he had anything on him that [the officers] needed to know about and [Defendant] said just a little bud in his pocket." After asking Defendant to turn around and place his hands on the wall, Detective Haigler retrieved marijuana from Defendant's pocket. At that point, Officer Furr testified that he "grabbed the camouflage bag that was laying in between [Defendant's] feet on the ground" and carried it to Detective Haigler's vehicle.
¶ 4 After taking Defendant's knife, Sergeant Brummer asked Defendant if he could search his book bag. Defendant explained that "he got the book bag from a male subject in the parking lot" and pointed toward the parking lot. Detective Haigler testified that when he looked in the direction that Defendant was pointing, Defendant "took off running." Upon hearing Sergeant Brummer yell "get him," Officer Furr left Defendant's book bag on the police vehicle and joined Detective Haigler and Sergeant Brummer's foot pursuit of Defendant. They apprehended Defendant within one minute.
¶ 5 At trial, Defendant stipulated that his book bag contained 11.49 grams of methamphetamine and less than .1 grams of heroin. At the close of the State's evidence, Defendant moved to dismiss and "grant acquittals to [Defendant] on all the charges with which he's currently related, recognizing the State has dismissed two of those from the very start." The trial court denied the motion. Defendant renewed his motion to dismiss the charges at the close of all the evidence, and the trial court again denied the motion. The jury returned verdicts finding Defendant guilty of all charges. Defendant was sentenced to two consecutive judgments and commitments for a total minimum of 178 months and a total maximum of 238 months imprisonment. Defendant appeals.
¶ 6 Defendant argues that "the trial court erred when it denied Defendant's motion to dismiss the charge for resisting a public officer because there was a fatal variance between the indictment allegation and the evidence." (Original in all caps.)
¶ 7 The State argues that Defendant did not preserve his fatal variance argument for appellate review because "[t]his Court has repeatedly held that in order to preserve a fatal variance argument for appellate review, a defendant must specifically state at trial that a fatal variance is the basis for his motion to dismiss." Defendant, citing State v. Smith , 375 N.C. 224, 846 S.E.2d 492 (2020), asserts that his "fatal variance argument here is preserved for normal appellate review upon his timely motions to dismiss all charges."
¶ 8 In State v. Smith , 375 N.C. 224, 846 S.E.2d 492, the defendant was charged with two counts of engaging in sexual activity with a student in violation of North Carolina General Statute § 14-27.7. Id. at 226, 846 S.E.2d at 493. At trial, the defendant moved to dismiss the charge based on insufficient evidence of one element of the crime—whether sexual activity occurred—and the trial court denied the motion. Id. at 226–27, 846 S.E.2d at 493. In his appeal to this Court, the defendant argued the trial court erred in denying his motion to dismiss because (1) "the evidence at trial did not establish that he was a ‘teacher’ within the meaning of N.C.G.S. § 14-27.7(b)" or, in the alternative, (2) "there was a fatal variance between the indictment and proof at trial since the indictment alleged defendant was a ‘teacher,’ but his status as a substitute teacher made him ‘school personnel’ under section 14-27.7(b)." Id. at 227–28, 846 S.E.2d at 494. This Court held that the defendant failed to preserve these arguments for appellate review because the insufficient evidence argument at trial was limited to a single element of the crime, and the fatal variance argument was not presented to the trial court. Id. at 228, 846 S.E.2d at 494.
¶ 9 On appeal, the Supreme Court acknowledged this Court's opinion was filed before the Supreme Court's opinion in State v. Golder , 374 N.C. 238, 839 S.E.2d 782 (2020), which "addressed the specific issue of when a motion to dismiss preserves all sufficiency of the evidence issues for appellate review." Id. at 228–29, 846 S.E.2d at 494. In Golder , the Supreme Court "held that ‘Rule 10(a)(3) provides that a defendant preserves all insufficiency of the evidence issues for appellate review simply by making a motion to dismiss the action at the proper time.’ " Id. at 229, 846 S.E.2d at 494 (quoting Golder , 374 N.C. at 246, 839 S.E.2d at 788 ). Based on its holding in Golder , the Court in Smith explained, "[b]ecause defendant here made a general motion to dismiss at the appropriate time and renewed that motion to dismiss at the close of all the evidence, his motion properly preserved all sufficiency of the evidence issues." Id. at 229, 846 S.E.2d at 494. The Supreme Court did not conclusively determine whether the defendant's fatal variance argument was preserved for appellate review; the Court stated, "assuming without deciding that defendant's fatal variance argument was preserved, defendant's argument would not prevail for the same reasoning." Id. at 231, 846 S.E.2d at 496.
¶ 10 Following Golder and Smith , this Court recently addressed whether a fatal variance argument was preserved for appellate review:
Although Golder did not address this specific question, our Court has noted, in light of Golder : "any fatal variance argument is, essentially, an argument regarding the sufficiency of the State's evidence." We further reasoned: "our Supreme Court made clear in Golder that ‘moving to dismiss at the proper time ... preserves all issues related to the sufficiency of the evidence for appellate review.’ " Specifically, in Gettleman we determined the defendant failed to preserve an argument that the jury instructions and indictment in that case created a fatal variance precisely because the Defendant failed to move to dismiss the charge in question. Here, unlike in Gettleman , Defendant did timely move to dismiss all charges, and thus, under the rationale of Gettleman , it would appear Defendant did preserve this argument. Without so deciding, and for purposes of review of this case, we employ de novo review.
State v. Brantley-Phillips , ––– N.C. App. ––––, 2021-NCCOA-307, ¶ 22, 862 S.E.2d 416 (citations and brackets omitted) (quoting State v. Gettleman , 275 N.C. App. 260, 853 S.E.2d 447, 454 (2020) ).
¶ 11 Here, Defendant moved to dismiss his charges at the close of the State's evidence and renewed the motion at the close of all the evidence. Therefore, as in Brantley-Phillips , "it would appear Defendant did preserve this argument" but, "[w]ithout so deciding, and for purposes of review of this case, we employ de novo review." Id.
¶ 12 Defendant argues there was a fatal variance between the indictment charging him with resisting a public officer and the evidence presented at trial. Specifically, the indictment alleged that at the time of Defendant's resistance, Detective Haigler was "attempting to take the defendant into custody for processing narcotics" but the evidence at trial "only showed that Defendant ran from officers, including Haigler, after a small amount of marijuana was seized from his person." Defendant asserts he "is entitled to have his resisting conviction vacated because the State tendered no evidence supporting its material indictment allegation that Defendant resisted an arrest for processing narcotics."
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