Heard in the Court of Appeals January 29, 2015.
Guilford County, No. 12-CRS-098772.
REVERSED and REMANDED.
Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State.
Edward Eldred for the defendant-appellant.
Judge STROUD concurs.
Judge BRYANT concurs in part, dissents in part.
Appeal by Defendant from judgment entered on 3
October 2013 by Judge R. Stuart Albright in Guilford County Superior Court.
HUNTER, JR., Robert N.,
Anna Laura Huckelba (" Defendant" ) appeals from a final judgment of the trial court, based on a jury verdict finding her guilty of three counts of misdemeanor weapon on educational property and one count of felony weapon on educational property pursuant to N.C. Gen. Stat. § 14-269.2(b) (2011). On appeal, Defendant first contends that the trial court committed plain error by instructing the jury that Defendant was guilty of possessing a weapon on educational property even if she did not know she was on educational property. Second, Defendant argues that her trial counsel was ineffective by failing to argue a fatal variance in the indictment. For the following reasons, we reverse and remand for a new trial consistent with this opinion.
I. Factual & Procedural History
On 11 February 2013, Defendant was indicted on three counts of misdemeanor possession of a weapon on campus or other educational property and one count of felony possession of a weapon on campus or other educational property in violation of N.C. Gen. Stat. § 14-269.2(b). Defendant's case was called for trial in Guilford County Superior Court on 1 October 2013. The evidence presented at trial tended to show the following facts:
On 25 December 2012, Defendant was a senior at High Point University in High Point, North Carolina. Because it was Christmas day, school was not in session, and there were few cars on campus. That evening, sometime after 4:30 P.M., Defendant pulled into a parking spot in front of High Point University's Administration Building. In order to get to this parking spot, Defendant had to drive past a fence, but she did not have to drive through any security gates. Had Defendant chosen to move her car from its location in front of the Administration Building to the residential area of campus, she would have encountered a security gate, and would need a security card to drive into the residences. Instead, Defendant parked her car in an area that was open to the public, approximately two miles away from " main" campus, where most of the academic buildings are located.
Officer Jeffrey Thomas (" Officer Thomas" ), a security officer employed by High Point University, noticed Defendant as she parked. Officer Thomas recognized Defendant because the officers were previously instructed to " be on the lookout" for Defendant for an unspecified reason. The officers were directed to call a Student Life employee if they saw Defendant on campus. Officer Thomas approached Defendant and spoke to her while she was still in her car. He asked her whether she had spoken to anyone in the Student Life department. When Defendant responded that she had not, Officer Thomas escorted her into the lobby of the Administration Building. Defendant's demeanor was calm. Officer Thomas left Defendant in the lobby and Lieutenant Dennis Shumaker (" Lieutenant Shumaker" ), another security officer employed by High Point University, joined them in the lobby.
Lieutenant Shumaker contacted the on-duty resident director of Student Life, Lance Dunlap (" Mr. Dunlap" ), who arrived at the Administration Building ten to fifteen minutes later. During those ten to fifteen minutes, Lieutenant Shumaker asked Defendant why she was on campus. Defendant responded that she wanted to do her laundry in her townhome-style dorm room on campus. When Mr. Dunlap arrived, he asked Defendant if she had a gun. Defendant responded that she did have a gun in her car. Lieutenant Shumaker told Defendant that he needed to retrieve the gun from her car. Defendant handed Lieutenant Shumaker her car keys without objection. Before Lieutenant Shumaker
left the room, Defendant told him that she had a " concealed carry" permit.
Lieutenant Shumaker went outside to the parking lot of the Administration Building, unlocked and opened Defendant's car. Initially, Lieutenant Shumaker did not see any weapons in the car, only a cardboard box on the back-seat floorboard. Lieutenant Shumaker eventually located a loaded gun in the glove compartment of Defendant's car and three knives in the cardboard box in the back seat. The knives' blades were not exposed. At that point, Lieutenant Shumaker contacted the High Point Police Department and waited for an officer to arrive on the scene. Before leaving for the night, Lieutenant Shumaker wrote a report of the incident. In that report, he documented a direct statement made by Defendant: " I know I'm not supposed to have [the gun] on campus, but I don't take it in my room, or anything."
High Point Police Officer Ian Stanick (" Officer Stanick" ) eventually arrived on the scene and immediately secured the weapons in his police vehicle. He later took the weapons to the police department and logged them into evidence. Once the weapons were secure, Officer Stanick arrested Defendant and transported her to the police station. At the station, Defendant waived her Miranda rights and made several statements to Officer Stanick about the weapons in her car. Defendant stated again that " [s]he knew she was not supposed to have a gun on campus" because " she was taught that in her concealed carry class." She also indicated that her concealed carry permit was valid on the day of her arrest. Defendant told Officer Stanick that she bought the gun for protection because she works the night shift at a retail clothing store in Winston-Salem. She explained to Officer Stanick that she does not feel safe walking through the dark parking lot after work. Defendant indicated to Officer Stanick that " she did not have anywhere else to keep the weapon so she kept it locked in the glove compartment of the car." Defendant was subsequently charged with one count of felony weapon on educational property for the gun and three counts of misdemeanor weapon on educational property for the knives. She spent thirty-nine days in jail before she was released on bail.
Defendant's case was called for trial in Guilford County Superior Court on 1 October 2013. During her opening statements to the jury, Defendant admitted to the element of possession for each of the four weapons charges, but adamantly denied that she was on educational property. At the close of the State's evidence, Defendant made a motion to dismiss, which the trial court denied. No evidence was presented by Defendant.
During the charge conference, outside the presence of the jury, the trial court proposed to read to the jury North Carolina Pattern Jury Instruction 235.17 for the substantive elements of the offenses charged. Neither party objected. Accordingly, the trial court charged the jury with the following instructions:
The defendant in this case has been charged with knowingly possessing a Ruger pistol on educational property.
For you to find the defendant guilty of this offense, the State must prove two things beyond a reasonable doubt:
First, that the defendant knowingly possessed a Ruger pistol.
And second, that the defendant was on educational property at the time she possessed the pistol.
Therefore, if you, the jury, find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant knowingly possessed a Ruger pistol, and that the defendant was on educational
property at the time she possessed the pistol, then it would be your duty to return a verdict of guilty of knowingly possessing a Ruger pistol on educational property. On the other hand, if you fail to so find or you have a reasonable doubt as to one or both of these things, then it would be your duty to return a verdict of not guilty as to this charge.
The trial court repeated this instruction to the jury for each additional weapon charge, substituting the words " Ruger pistol" for the names of the three knives found in Defendant's car. The jury found Defendant guilty of all four weapons charges. At sentencing, because Defendant was a prior record level I with zero points, the trial court imposed a suspended sentence of six to seventeen months imprisonment for the Class I felony gun charge, and a suspended, consolidated sentence of forty-five days imprisonment for the misdemeanor weapons charges.
On 8 October 2013, five days after the judgment against her was entered, Defendant filed a handwritten notice of appeal. The notice states that Defendant " give[s] notice of appeal to the Court of Appeals of Guilford County." The bottom right hand corner of the notice states: " 10/8/13 CC DA," suggesting that Defendant possibly gave the District Attorney's office the same notice. On 4 December 2014, the State moved this Court to dismiss Defendant's appeal, citing a violation of Rule 4 of the North Carolina Rules of Appellate Procedure, which requires a defendant-appellant to serve the State with a copy of the notice of appeal. See N.C. R. App. P. 4. On 15 December 2014, Defendant filed a response to the State's motion to dismiss, as well as a petition for writ of certiorari with this Court. On 16 January 2015 we allowed the State's motion to dismiss the appeal, based on the procedural violations. However, on 21 January 2015, we granted Defendant's petition for writ of certiorari to decide this case on the merits.
Jurisdiction lies in this Court pursuant to Rule 21 of the North Carolina Rules of Appellate Procedure, which provides for appellate review under the extraordinary writ of certiorari. " The writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action." N.C. R. App. P. 21(a)(1).
III. Standard of Review
With regard to the first assignment of error, the allegedly erroneous jury instructions, " [i]n order to preserve a question for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling sought if the specific grounds are not apparent." State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991). " A party may not make any portion of the jury charge or omissions therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires." N.C. R. App. P. 10(a)(2); see also State v. McNeil , 350 N.C. 657, 691, 518 S.E.2d 486, 507 (1999), cert. denied, 529 U.S. 1024, 120 S.Ct. 1432, 146 L.Ed.2d 321 (2008). However,
[i]n criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.
N.C. R. App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied, 555 U.S. 835, 129 S.Ct. 59, 172 L.Ed.2d 58 (2008). Therefore, an unpreserved issue with the jury instructions in a criminal case may only be reviewed by this Court if we find that the instructions as given by the trial court amounted to plain error. See State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996) (noting that the Supreme Court of North Carolina " has elected to review unpreserved issues for plain error when they involve . . . errors in the judge's instructions to the jury[.]" ).
" The North Carolina plain error standard of review . . . requires the defendant to bear the heavier burden of showing that the error rises to the level of plain
error." State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012). First, " a defendant must demonstrate that a fundamental error occurred at trial." Id. at 518, 723 S.E.2d at 334. Second, " a defendant must establish prejudice--that, after examination of the entire record, the error 'had a probable impact on the jury's finding that the defendant was guilty.'" Id. (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). Finally, " because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. (quotation marks omitted).
In this case, Defendant argues on appeal that the trial court erred by instructing the jury that Defendant was guilty of possessing a gun on educational property even if she did not know she was on educational property. Defendant did not object at trial to the proposed jury instructions; however, she now specifically and distinctly contends that the instructions amounted to plain error. Therefore, we review the trial court's instructions to the jury for plain error.
With regard to the second assignment of error, the alleged ineffective assistance of counsel, " a defendant must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense." State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006) (quotation marks omitted). To establish prejudice, " a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
Defendant's two arguments on appeal are: (1) the trial court committed plain error by instructing the jury that Defendant was guilty of possessing a gun on educational property even if she did not know she was on educational property; and (2) Defendant's trial counsel was ineffective by failing to argue a fatal flaw in the indictment. We address each assignment of error in turn.
A. Jury Instructions
" It is the duty of the trial court to instruct the jury on all substantial features of a case raised by the evidence." State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546, 549 (1988). " Failure to instruct upon all substantive or material features of the crime charged is error." State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989).
Here, the statute under which Defendant was convicted provides: " It shall be a class I felony for any person knowingly to possess or carry, whether openly or concealed, any gun, rifle, pistol, or other firearm of any kind on educational property or to a curricular or extracurricular activity sponsored by a school." N.C. Gen. Stat. § 14-269.2(b) (2011). On appeal, Defendant argues that the trial court failed to instruct the jury on the proper mental state for the " on educational property" element of the crime. Specifically, Defendant argues that the trial court should have instructed the jury that it must find Defendant not guilty of the crime if it finds that Defendant was not knowingly on educational property.
The issue of whether the word " knowingly," as used in N.C. Gen. Stat. § 14-269.2(b), modifies both clauses " possess or carry" and " on educational property" is an issue of first impression for this Court. The plain language of N.C. Gen. Stat. § 14-269.2(b) provides us little guidance in determining which words in the sentence " knowingly" should modify. While the clause " whether openly or concealed" is separated from the rest of the sentence by commas, there is no punctuation separating the " knowingly to possess or carry" clause from the latter clauses in the sentence.
Our Supreme Court has addressed the issue of which clauses in a statutory sentence the adverbial mental state " knowingly" should modify. However, in that case, the statutory language was much more clear than in the case at bar. In 1964, the Supreme Court of North Carolina analyzed N.C. Gen. Stat. § 18-78.1, which governed licenses to sell alcoholic beverages. See Campbell v. North Carolina State Bd. of Alcoholic Control, 263 N.C. 224, 225-26, 139 S.E.2d 197, 199 (1964) (overruled on other grounds by Nat'l Food Stores v. North Carolina Bd. of Alcoholic Control, 268 N.C. 624, 151 S.E.2d 582 (1975)). Section 5 of the statute provided that no licensee shall " sell, offer for sale, possess, or knowingly permit the consumption on the licensed premises of any kind of alcoholic liquors the sale or possession of which is not authorized by law." N.C. Gen. Stat. § 18-78.1(5) (1966). The Supreme Court noted that " it appears by the punctuation that the word 'knowingly' does not modify sell, offer for sale, or possess but does modify 'permit the consumption of the licensed premises.'" Campbell, 263 N.C. at 226, 139 S.E.2d at 199. This interpretation of the statute is clear from its plain language. The word " knowingly" is placed after the clauses " sell, offer for sale, and possess," but before the clause " permit the consumption." The statutory language of N.C. Gen. Stat. § 14-269.2(b) is far less clear because the modifying word " knowingly" is placed before all of the other clauses in the statutory sentence. Thus, Campbell provides us little guidance in our analysis of N.C. Gen. Stat. § 14-269.2(b).
Although our State court decisions provide little guidance, this issue has been raised several times in the federal courts of appeal and in the United States Supreme Court. See, e.g., United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994); United States v. Staples, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) ; Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985); United States v. Figueroa, 165 F.3d 111, 115 (2d Cir. 1998); United States v. Langley, 62 F.3d 602, 604 (4th Cir. 1995); United States v. Forbes, 64 F.3d 928 (4th Cir. 1995). Therefore, we look to these cases as persuasive ...