Summary
In State v. Hoilman, 82 W. Va. 98, 95 S.E. 591, wherein a prior violation was involved, we permitted the introduction into evidence of the records of the prior conviction for the purpose of establishing jurisdiction of the court as to the prior case, the prior conviction having been before a mayor of a city, acting ex officio as a justice of the peace.
Summary of this case from State v. LoyOpinion
No. 07-736.
Filed April 15, 2008.
Avery County No. 06CRS050968.
Appeal by defendant from judgment entered on or about 6 March 2007 by Judge James L. Baker, Jr. in Superior Court, Avery County. Heard in the Court of Appeals 9 January 2008.
Attorney General Roy A. Cooper, III by Assistant Attorney General Donald W. Laton, for the State. Shelley Blum, for defendant-appellant.
Defendant pled guilty to possession of a firearm on school property. Defendant appeals, claiming the trial court erred (1) in denying defendant's motion to suppress and (2) in not dismissing defendant's indictment as potentially duplicitous. For the following reasons, we affirm.
I. Background
On or about 8 January 2007, defendant was indicted for possessing a gun on educational property pursuant to N.C. Gen. Stat. § 14-269.2(b). On or about 16 January 2007, defendant filed a motion to suppress "the results of the illegal searches" stating that neither the search of defendant's person nor his wife's car was made pursuant to a search warrant. Neither search was made pursuant to the permission of [d]efendant, or of his wife. The searching officer did not have probable cause for either search. Both searches were made in violation of the Constitution of the United States and that of North Carolina.
At the hearing on defendant's motion to suppress, the trial court found that: On 3 November 2006, Officer Darcy and Officer Milian were at a football game between Avery County High School and Mitchell County High School, at Avery County High School. Before the game began, the officers had been informed that defendant had been disruptive at prior games. During the game Officer Lee informed Officer Darcy that "an individual in the stands . . . had been yelling at the coach and . . . was apparently intoxicated." Officer Darcy approached defendant "and asked defendant to come down to the track area[.]" Officer Darcy noticed defendant had glassy eyes and smelled of alcohol. Officer Darcy asked defendant if he had been drinking, and defendant admitted that he had, before the game. Officer Darcy then asked defendant to follow him so he could perform an alco-sensor test on defendant, but defendant hesitated to do so; defendant wanted to return to the game, but Officer Darcy informed him he could not stay at the game. Officer Darcy then took defendant to Officer Milian.
Officer Milian saw a knife on defendant and removed it. Officer Milian noticed defendant smelled of alcohol and had red, glassy eyes. Officer Milian then performed a patdown of defendant and found a hard object in defendant's pocket which he believed could be a gun. The gun fell to the ground and defendant wash and cuffed. Officer Milian then asked Donna Hoilman ("Donna"), defendant's wife, if defendant had come with her. When Donna responded that defendant had come to the game with her, Officer Milian asked if he could look in the car for any other weapons. Donna responded "that she didn't have anything to hide[.]" Officer Milian searched the vehicle and found a gun in the glove compartment.
Based upon its findings of fact, the trial court made conclusions of law regarding the searches of defendant and Donna's car and denied defendant's motion to suppress. On or about 6 March 2007, defendant pled guilty to possession of a firearm on school grounds and preserved his right to appeal the denial of his motion to suppress. Defendant was given a suspended sentence and placed on supervised probation for 30 months. Defendant appeals the denial of his motion to suppress the two firearms. The issues before this Court are whether the trial court erred (1) in denying defendant's motion to suppress and (2) in not dismissing defendant's indictment as potentially duplicitous.
II. Motion to Suppress
Defendant first assigns error to the trial court's denial of his motion to suppress. Defendant argues "[t]he trial court erred in denying [d]efendant's [m]otion to [s]uppress the evidence seized from his person and his wife's automobile in violation of the constitutional right to be free of unreasonable arrests and searches and seizures." Defendant contends that the officers lacked probable cause at three relevant stages of the encounter:(1) at the time defendant was taken from his seat, (2) at the time the patdown was conducted, and (3) at the time defendant's wife's car was searched. However, defendant has not assigned error to any of the findings of fact or conclusions of law made by the trial court in its ruling upon the motion to suppress.
"The standard of review to determine whether a trial court properly denied a motion to suppress is whether the trial court's findings of fact are supported by the evidence and whether the findings of fact support the conclusions of law." State v. Young, ___ N.C. App. ___, ___, 651 S.E.2d 576, 579 (2007) (citation and internal quotation marks omitted). As our Supreme Court stated in State v. Cheek,
In this assignment of error, defendant has failed to specifically except to any of the trial court's findings of fact relating to this motion [to suppress]. Defendant has additionally failed to identify in his brief which of the trial court's . . . findings of fact are not supported by the evidence. Therefore, this Court's review of this assignment of error is limited to whether the trial court's findings of fact support its conclusions of law.
State v. Cheek, 351 N.C. 48, 63, 520 S.E.2d 545, 554 (1999), cert. denied, 530 U.S. 1245, 147 L.Ed 2d 965 (2000). Furthermore, "[t]he appellant must assign error to each conclusion it believes is not supported by the evidence. N.C.R. App. P. 10. Failure to do so constitutes an acceptance of the conclusion and a waiver of the right to challenge said conclusion as unsupported by the facts." Fran's Pecans, Inc. v. Greene, 134 N.C. App. 110, 112, 516 S.E.2d 647, 649 (1999). The trial court stated specific findings of fact which comprise about fifteen pages of the transcript in the ruling on the motion to suppress. The trial court made detailed conclusions of law, based upon the findings of fact, regarding the officers' justification for removing defendant from his seat, performing the patdown search which led to discovery of the gun on his person, and the search of Donna's vehicle. As defendant failed to assign error to any of the trial court's findings of fact or conclusions of law these contentions are not reviewable. See id.
III. Indictment
Defendant next contends "[t]he trial court erred in not dismissing the indictment as potentially duplicitous" as the indictment charged defendant with "possess[ing] a pistol, an American Arms 22 caliber revolver, Glock 45 Caliber automatci [sic] on educational property" and "[i]f this matter had gone to the jury, some of its members could have found that the [d]efendant possessed the .22 and some the .45, but there would have been no way to be sure the jury had reached a unanimous verdict on either weapon."
Defendant has conflated two separate issues in this argument, specifically duplicity of the indictment and unanimity of the jury verdict. Unanimity of the jury verdict is not relevant here, as defendant pled guilty and there was no jury verdict. The correct issue would be duplicity of the indictment. A duplicitous indictment charges "two separate and distinct offenses in the same count." State v. Burnett, 142 N.C. 577, 579, 55 S.E. 72, 73 (1906).
However, defendant attempts to raise the issue of duplicity for the first time on appeal. Defendant failed to make a motion to quash the indictment as duplicitous, thus waiving his opportunity to contest any potential duplicity of the indictment. See Blakeney v. State, 2 N.C. App. 312, 318, 163 S.E.2d 69, 73 (1968). Defendant argues that he had "no need, or opportunity, to move the indictment be dismissed, since the [t]rial [c]ourt recognized the problem himself." Yet the problem that the trial court recognized was the potential for lack of unanimity of the jury verdict, which could be easily cured by the proper framing of issues and instructions to the jury. Defendant had ample opportunity from the time of his indictment until the moment he pled guilty to move to dismiss or to quash the indictment for duplicity, but he never did so. As defendant elected to plead guilty, the issue of jury unanimity never arose. This assignment of error is without merit.
IV. Conclusion
We conclude that the trial court did not err in denying defendant's motion to suppress or in failing to dismiss the indictment.
AFFIRMED.
Judges HUNTER and CALABRIA concur.
Report per Rule 30(e).