State v. Taylor
| Decision Date | 20 April 2010 |
| Docket Number | No. COA09-1360.,COA09-1360. |
| Parties | STATE of North Carolina v. Steven David TAYLOR, Defendant. |
| Court | North Carolina Court of Appeals |
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Attorney General Roy Cooper, by Assistant Attorney General E. Michael Heavner, for the State.
Mercedes O. Chut, Greensboro, for defendant-appellant.
Defendant Steven David Taylor appeals from his convictions of possession of a firearm by a felon and having attained habitual felon status. Defendant primarily argues on appeal that the trial court erred in not dismissing both indictments for being facially insufficient to support the charges and due to a fatal variance between the indictments and the evidence at trial. We conclude, however, that the indictments are sufficient to support the offenses alleged and that there was no fatal variance between the indictments and proof at trial. Accordingly, we find no error.
The State's evidence tended to establish the following facts at trial: On 24 June 2008 defendant was placed on intensive probation after pleading guilty to fleeing/eluding arrest in a motor vehicle and failure to heed blue lights or a siren. He met with his probation officer, Officer Benjamin Lynch, the same day, telling Officer Lynch that he was living in a cabin in the woods on Amy Lane on family property in Polk County, North Carolina. Defendant's cabin is located a short distance down an unmaintained dirt road. The cabin is a one room A-frame style house with no electricity or running water. The cabin is situated at the edge of a clearing in the woods, with a small stream running directly behind it. Roughly 100 to 200 yards through the woods, there are four or five other houses located on a hill on defendant's family's property. Defendant's father lives in one house and Chris Abril, a former law enforcement officer, lives in another. Between defendant's father's residence and defendant's cabin is a shooting range used by Mr. Abril.
On 29 June 2008, Officer Lynch drove to defendant's cabin to conduct a routine visit. Officer Lynch arrived at defendant's cabin around 8:00 p.m. and saw defendant standing near a fire pit in the clearing around the cabin. When defendant saw Officer Lynch pull up, he "took off" running toward the cabin and went inside. Defendant then came back outside onto the porch of the cabin, holding a cup containing "moonshine." Defendant appeared to be "extremely impaired." Officer Lynch asked defendant why he had run into the cabin and defendant responded: "Nothing." For safety purposes, Officer Lynch patted down defendant, finding in his pocket an old knife and some .45 caliber shells that smelled like they had "just recently been fired." He then asked defendant where he had gotten the shells and defendant responded that he had been out shooting that day, but that he had already taken the gun back to his father's house.
Officer Lynch began searching the cabin and found a small box containing what appeared to be marijuana residue and rolling papers. While Officer Lynch continued to search the cabin, defendant started rambling and asking Officer Lynch to "give him a break." Defendant eventually told Officer Lynch that he had a box of ammunition outside the cabin. Defendant took Officer Lynch outside and showed him two boxes of ammunition located approximately a foot from the cabin. The boxes contained .45 caliber shells, some of which had already been fired, and three magazines designed to hold .45 caliber shells. Two of the magazines where fully loaded. After seizing the ammunition and magazines, Officer Lynch searched the immediate area and found a .45 caliber semi-automatic handgun in the undergrowth approximately 25 to 30 feet from the door to the cabin along a trail from the road up to the cabin. After finding the gun, Officer Lynch asked defendant about it and defendant told him that it was his father's and asked if he could take it back to his father's house.
Officer Lynch then took the gun and the ammunition to secure it in his vehicle. Defendant followed Officer Lynch to his vehicle and got into the passenger seat while Officer Lynch was placing the items in the backseat. Defendant kept asking Officer Lynch to "give him a break" and allow him to take the gun back to his father. Because defendant was "acting a little strange," Officer Lynch called the Polk County Sheriff's Department for assistance. Defendant kept looking back at the gun in the backseat and at Officer Lynch's gun, so Officer Lynch took the gun from the backseat and kept it with him. Concerned for his safety, Officer Lynch told defendant that he would not arrest him for a probation violation.
Officer Lynch radioed the sheriff's department again, asking that they "step ... up" their response and defendant stated that there were other guns in the woods and that "he knew how to use them." Defendant got mad and stated that he would run away to California where no one could find him. Defendant then threatened to kill himself. When Officer Lynch called the sheriff's department again, defendant got out of the vehicle and ran into the cabin. Defendant soon came back out and showed Officer Lynch a handful of pills, claiming that they were Lortab. Defendant then swallowed the pills, grabbed the knife from the kitchen table in cabin, and "took off running up the path" towards Mr. Abril's and his father's residences. Officer Lynch immediately radioed for an ambulance and began running after defendant. Officer Lynch caught defendant, took the knife away from him, and attempted to place him under arrest. While trying to handcuff defendant, defendant "jerked away" from Officer Lynch and began running back toward his cabin. Officer Lynch ran after defendant, and when defendant tried to dodge Officer Lynch they collided and fell to the ground. Officer Lynch handcuffed defendant and placed him under arrest. After the sheriff's deputies and the ambulance arrived, defendant was taken to the hospital. The woods around defendant's cabin were searched again, but no other weapons were found.
Defendant was charged with possession of a firearm by a felon and having attained habitual felon status. Defendant pled not guilty to the charges and the case proceeded to trial. At the close of the evidence during the firearm possession phase, defendant moved to dismiss the charge for insufficient evidence. The motion was denied. Defendant also moved to dismiss the indictment on the ground that there was a fatal variance between the indictment and the proof at trial, where the judgment for defendant's prior felony of possession with intent to sell or deliver marijuana ("PWISD marijuana") indicated that the offense was committed on 18 December 1992 while the firearm possession indictment alleged that the date of commission was 8 December 1992. That motion was also denied and defendant was convicted of possession of a firearm by a felon.
Prior to presenting evidence in the habitual felon phase of the trial, the State moved to amend the indictment with respect to the date defendant committed the prior PWISD marijuana offense. The trial court granted the State's motion to amend the indictment so that it alleged that the offense was committed between 8 and 18 December 1992. At the close of the evidence, defendant moved to dismiss the habitual felon indictment on the same ground as his motion to dismiss the firearm possession indictment. That motion was also denied. The jury convicted defendant of having attained habitual felon status and the trial court consolidated the firearm possession and habitual felon convictions into one judgment, sentencing defendant to a presumptive-range term of 151 to 191 months imprisonment. Defendant timely appeals to this Court.
Defendant first argues that the trial court erred by denying his motions to dismiss the indictments for possession of a firearm by a felon and having attained habitual felon status. Defendant contends that (1) the indictments were insufficient on their faces to support the offenses for which defendant was convicted as they failed to contain information required by statute and (2) there is a fatal variance between the allegations in the indictments and the evidence at trial.
Defendant argues that his motions to dismiss the firearm possession and habitual felon indictments should have been granted as they fail to sufficiently allege the date defendant committed a prior felony supporting both indictments. Defendant claims that the facial deficiency of the indictments deprived the trial court of subject-matter jurisdiction to adjudicate the offenses.
Defendant was indicted for possession of a firearm by a felon in violation of N.C. Gen. Stat. § 14-415.1(a) (2009), which prohibits "any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm or any weapon of mass death and destruction as defined in G.S. 14-288.8(c)." The statute also specifies the information to be contained in a proper indictment for possession of a firearm by a felon: "An indictment which charges the person with violation of this section must set forth the date that the prior offense was committed, the type of offense and the penalty therefor, and the date that the defendant was convicted or plead guilty to such offense, the identity of the court in which the conviction or plea of guilty took place and the verdict and judgment rendered therein." N.C. Gen.Stat. § 14-415.1(c) (emphasis added).
Defendant was also indicted for having attained habitual felon status under N.C. Gen.Stat. § 14-7.1 (2009), which defines a "habitual felon" as "any person who has been convicted of or pled guilty to three felony offenses in any federal court or state court in the United States or combination thereof...." Accord State v. Patton, 342 N.C. 633, 634, 466 S.E.2d 708, 709 (1996) (...
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