State v. Toler
| Decision Date | 18 October 2011 |
| Docket Number | NO. COA11-5,COA11-5 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. DAVID TOLER |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Lenoir County No. 10 CRS 50220
Appeal by Defendant from judgment entered 29 June 2010 by Judge Paul L. Jones in Lenoir County Superior Court. Heard in the Court of Appeals 17 August 2011.
Attorney General Roy Cooper, by Assistant Attorney General Donald W. Laton, for the State.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and Kirby H. Smith, III, for Defendant-Appellant.
David Toler ("Defendant") appeals from judgment for assault with a deadly weapon and the common law offense of going armed to the terror of the people. Defendant raises four issues on appeal. First, Defendant contends the trial court did not have jurisdiction to try him on the charge of assault with a deadly weapon, as Defendant had previously been acquitted of thatcharge in district court. Defendant also argues the trial court erred when it ordered Defendant's guns be destroyed without providing him notice and the opportunity to be heard. We agree with both of these contentions. Defendant also argues the trial court erred when it commented on evidence in the presence of the jury. We disagree. Finally, Defendant contends the trial court erred by denying his Motion to Dismiss the charges against him. We find no error on that issue.
On 22 January 2010, Adam Montiel appeared before a Lenoir County Magistrate and furnished information leading to a warrant for arrest against Defendant on three misdemeanor charges: 1) assault with a deadly weapon, 2) communicating threats to physically injure, and 3) going armed to the terror of the people. The three offenses took place on 21 January 2010.
On 5 February 2010, a bench trial was held in Lenoir County District Court before Judge Lonnie Carraway. Defendant pleaded not guilty to all charges. At trial, Defendant was found guilty of communicating threats and going armed to the terror of the people. Defendant was found not guilty of assault with a deadly weapon. At the close of trial, Defendant gave oral notice of appeal from district court to superior court.
Prior to the jury trial in Lenoir County Superior Court, the Clerk of the Court "add[ed] back in" the charge of assault with a deadly weapon, even though Defendant had been acquitted of this charge in district court. At the superior court proceeding on 29 June 2010, Defendant pleaded not guilty to all charges. The State's evidence at trial tended to show the following:
In 2007, Mr. Montiel and his wife, Kelly Montiel, purchased land from Defendant that included an access easement. The access easement crossed the land where Defendant resided. Mr. Montiel testified he and Defendant have "had controversy" since Mr. Montiel purchased the land from Defendant and they became neighbors.
Mr. Montiel testified that he was able to see that Defendant was the person driving the vehicle and that Defendant was yelling at the time of the incident. Though Mr. Montiel was unable to understand what Defendant was saying, Mr. Montiel testified he was scared at the time.
After returning home, the Montiels discussed what action they should take against Defendant and eventually resumed their original plan for the evening, which was to visit Mr. Montiel's sister.
Charles Harrell ("Mr. Harrell"), another neighbor, testified he was aware that there had been controversy between Defendant and Mr. Montiel regarding the easement. At the close of the State's evidence, Defendant moved for dismissal of all charges. The trialcourt granted Defendant's Motion to Dismiss the charge of communicating threats and denied the motion as to the other charges.
Defendant testified that at 7:00 p.m. on 21 January 2010, he was taking care of his animals and "watching out for the place" because the Montiels had "started acting up, spinning wheels in the yard." Defendant was driving his wife's Nissan Frontier back and forth between his residence and the Montiels' property. Later that evening, Defendant saw Mr. Montiel and his family driving down the easement. Defendant testified to the following exchange with Mr. Montiel:
We were coming in and out several times, both of us. And he come by and I came out coming right behind him. And he stopped in front of me and I turn and go around him. He beats me to this intersection he's talking about that I go in front of him at, and stops in front of me again. And I turn and go around him. Nothing happened, it was just: turn and go around him.
Defendant testified that the encounter then ended. Defendant further testified that he did not have a gun with him at the time and stated, "I have never pulled a gun on anyone in my life."
Leslie Hines, Defendant's wife, testified Defendant was going back and forth between their home and Mr. Montiel's property near the easement on 21 January 2010. Ms. Hines further testified that her husband's guns were in their usual storage place in their homethat night, and that Defendant appeared normal and easy-going when he returned home that evening. Ms. Hines did not give an exact time that Defendant returned home.
A jury found Defendant guilty of assault with a deadly weapon and going armed to the terror of the people. On the charge of assault with a deadly weapon, Defendant was sentenced to 75 days in the North Carolina Department of Correction ("NCDOC"), which was suspended and Defendant was placed on supervised probation for 24 months. On the charge of going armed to the terror of the people, the trial court sentenced Defendant to 45 days in the custody of the NCDOC, to run consecutively with his other sentence. This sentence was also suspended and Defendant was placed on supervised probation for 24 months.
As a condition of probation, Defendant was ordered to "surrender all handguns to the Lenoir County Sheriff's office within 24 hours." As an intermediate sanction, Defendant was ordered to serve an active term of 10 days in the Lenoir County jail. The trial court then entered a separate order requiring the Lenoir County Sheriff's Department to destroy Defendant's handguns as a part of his judgment for assault with a deadly weapon. While the transcript contains a discussion of the surrender of Defendant's handguns, there is no discussion in thetranscript of the guns being destroyed, and Defendant asserts the order requiring the Sheriff's Department to destroy his handguns was entered outside his presence.
As Defendant appeals from the final judgment of a superior court, this Court has jurisdiction to hear the appeal pursuant to N.C. Gen. Stat. § 7A-27(b) (2009).
Defendant's objections to subject matter jurisdiction can be raised at any time, even for the first time on appeal. State v. Petty, ____ N.C. App. ____, ____, 711 S.E.2d 509, 512 (2011); Brown v. Brown, 171 N.C. App. 358, 362, 615 S.E.2d 39, 41 (2005). Jurisdiction is a question of law and is reviewable de novo. State v. Black, 197 N.C. App. 373, 377, 677 S.E.2d 199, 202 (2009); State v. Frady, 195 N.C. App. 766, 767, 673 S.E.2d 751, 752 (2009). We also review de novo whether the trial court erred in sentencing Defendant outside his presence. State v. Arrington, No. COA 10-1134, 2011 WL 3569412, at *4 (N.C. App. Aug. 16, 2011).
Our Court "uses a totality of the circumstances test to evaluate whether a judge's comments 'cross into the realm of impermissible opinion.'" In re D.M.B., 196 N.C. App. 775, 777, 676 S.E.2d 66, 68 (2009) (quoting State v. Larrimore, 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995) (citations omitted)). "'Inapplying this test, the utterance of the judge is to be considered in the light of the circumstances under which it was made.'" D.M.B., 196 N.C. App. at 777, 676 S.E.2d at 68 (quoting State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10-11 (1951)).
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