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State v. Battle

Court of Appeals of North Carolina

April 18, 2017

STATE OF NORTH CAROLINA
v.
KENRICK J. BATTLE

          Heard in the Court of Appeals 22 March 2017.

         Appeal by defendant from judgment entered 10 February 2016 by Judge Wayland J. Sermons, Jr. in Edgecombe County Superior Court No. 15 CRS 50277.

          Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L. Hyde, for the State.

          William D. Spence for defendant-appellant.

          TYSON, Judge.

         Kenrick J. Battle ("Defendant") appeals from judgment entered upon a jury's conviction of felonious possession of a firearm by a felon. We reverse the trial court's denial of Defendant's motion to dismiss.

         I. Background

         On 3 February 2015, Edgecombe County Sheriff's deputies arrived at a residence in a rural part of the county in an attempt to locate Defendant. They determined Defendant was not present inside the residence and left. The deputies received a "tip" approximately fifteen minutes later, which caused them to establish a perimeter around a large section of woods adjacent to the residence.

         Deputy Kenneth Wooten deployed a canine, a Dutch Shepherd, "Max, " to track human scent in the wooded area. Deputy Wooten testified Max is trained "to track human beings that have fled from an area" and "indicate where someone is hiding" by tracking a combination of human scent, crushed vegetation, and sedimentation. Deputy Wooten further testified Max is trained to "ensure [he] is not going to veer off of one track onto another, " and to remain on the original track in the event he detects the scent of another human being.

         Deputy Wooten took Max along a wood line and was accompanied by Detective Greg Weeks. Max detected a human scent on a footpath, which led into the woods. Max led the deputies and proceeded along the footpath, which ended approximately fifteen to twenty yards from the beginning of the wood line. Max continued to track into the woods, and led the deputies across a ditch and into a dense thicket. While in the vegetation, Max raised his head and began sniffing the air. This behavior, Deputy Wooten referred to as "air scenting, " indicated they were "close to someone or something." The deputies saw an "assault rifle" in front of Max, which they retrieved and determined it was loaded.

         Max began tracking away from the area from where the rifle was found. He led the deputies through the woods, parallel to Highway 122. The deputies continued to follow Max parallel to the highway, until they came upon a ditch at the edge of a field. A footprint was visible on the other side of the ditch. Max led the deputies across the ditch, but lost the track. Another man, Anthony Lyons, emerged from the woods at another location, while Max and the deputies were near the ditch. Another deputy arrested Lyons at the perimeter of the woods.

         The deputies and Max emerged from the woods after Max lost the track. They gave the recovered rifle to their supervisor, and allowed Max to rest for approximately five minutes. The deputies and Max returned to the ditch, where Max had lost the track. According to Deputy Wooten, Max "immediately picked the track back up, " and led the officers toward the highway. Max led the officers into an area of extremely thick briars and began "air scenting." Defendant was discovered lying upon the ground. Deputy Wooten testified the distance between where the rifle was recovered and Defendant was found was between seventy-five and one hundred yards.

         No evidence was presented regarding the ownership of the rifle. DNA swabs that were taken from the rifle and compared to Defendant's DNA were inconclusive. The State did not present any fingerprint or additional evidence to connect Defendant to the rifle.

         The State presented evidence tending to show Defendant was previously convicted of a felony offense, taking indecent liberties with a child, in 2009. The jury convicted Defendant of possession of a firearm by a felon. The trial court sentenced Defendant ...


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