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State v. Carey

Court of Appeals of North Carolina

July 16, 2019

STATE OF NORTH CAROLINA
v.
ADAM RICHARD CAREY

          Heard in the Court of Appeals 5 June 2019.

          Appeal by defendant from judgment entered 18 May 2018 by Judge Leonard L. Wiggins in Onslow County No. 16 CRS 54678 Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General E. Burke Haywood, for the State.

          Guy J. Loranger, for defendant-appellant.

          TYSON, JUDGE.

         Adam Richard Cary ("Defendant") appeals from judgments entered upon a jury's verdict finding him guilty of one count each of possession of a weapon of mass death and destruction and impersonation of a law enforcement officer. We find no error in Defendant's conviction for impersonation of a law enforcement officer, reverse his conviction for possession of a weapon of mass death and destruction, and remand for resentencing.

         I. Background

         Defendant was operating a dark-colored Dodge Charger and pulled over a speeding vehicle on 16 July 2016. Defendant had "emergency lights" flashing on his car. State Highway Patrol Trooper Cross pulled behind Defendant's vehicle and noticed the registration plate was not consistent with or issued to a law enforcement agency. After further investigation, Defendant was arrested, and his car was searched incident to arrest. Officers found a medical technician badge, firearms, magazines, ammunition, suppressors, three diversionary flash bang grenades, and other items located inside of Defendant's car. Defendant was indicted on three counts of possession of weapons of mass destruction, impersonating a law enforcement officer, following too closely, and speeding.

         On 15 May 2018, the State dismissed two counts of possession of firearms as weapons of mass death and destruction, following too closely, and speeding. After trial on 18 May 2018, a jury returned verdicts finding Defendant guilty of one count of possession of a weapon of mass death and destruction and impersonation of a law enforcement officer. For the conviction of possession of a weapon of mass death and destruction charge, the court ordered Defendant to serve a term of 16 to 29 months. The court suspended the sentence and imposed intermediate punishment, ordering Defendant to serve an active term of 120 days and placing him on supervised probation for a period of 24 months. For the conviction on the charge of impersonating a law enforcement officer, the court ordered Defendant serve a term of 45 days. The court suspended the sentence and imposed community punishment, placing Defendant on supervised probation for a period of 24 months. Defendant gave oral notice of appeal in open court.

         II. Jurisdiction

         Jurisdiction lies in this Court from a final judgment of the superior court entered upon the jury's verdict pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1) and 15A-1444(a) (2017).

         III. Issues

         Defendant argues the trial court erred by denying his motion to dismiss the weapon of mass death and destruction charge. Defendant also contends the trial court committed plain error by: (1) failing to instruct the jury on the definition of "weapon of mass death and destruction;" and (2) instructing the jury that it could find that the State satisfied the "weapon of mass death and destruction" element when the indictment did not allege that theory of guilt.

         IV. Impersonation of a Law Enforcement Officer

         Defendant appealed all of his convictions, including impersonating a law enforcement officer. On appeal, Defendant raises no arguments to challenge or show error in this conviction. Defendant's failure to bring forth arguments and authority results in abandonment of his appeal of this conviction. N.C. R. App. P. 28(a). We find no error in Defendant's conviction of impersonating a law enforcement officer.

         V. Standard of Review

         This Court reviews questions of statutory construction de novo. In re Ivey, __ N.C.App. __, __, 810 S.E.2d 740, 744 (2018) (citation omitted).

         VI. Motion to Dismiss

         Defendant contends the trial court erred by denying his motion to dismiss the possession of a weapon of mass death and destruction charge for insufficient evidence. He argues possession of flash bang grenades falls outside of the category of "Grenade" listed as a "weapon of mass death and destruction" set forth in N.C. Gen. Stat. § 14-288.8(c). We agree and reverse Defendant's conviction of possession of a weapon of mass death and destruction.

         A. "Weapon of Mass. Death and Destruction"

         Defendant was charged with one count of possession of a weapon of mass death and destruction under N.C. Gen. Stat. 14-288.8(c). We must consider the provisions and language contained within the statute in order to determine whether or not a flash bang device would qualify as a weapon of mass death and destruction. While a "grenade" may qualify as a "weapon" under State v. Sherrod, a flash bang grenade is neither a deadly weapon nor a weapon of mass death and destruction. State v. Sherrod, 191 N.C.App. 776, 781, 663 S.E.2d 470, 474 (2008) (defining weapon as "an instrument of attack or defense in combat, . . . or an instrument of offensive or defensive combat[;] something to fight with[;] something (as a club, sword, gun, or grenade) used in destroying, defeating, or physically injuring an enemy" (citation omitted)). Viewing the statute holistically and narrowly, the flash bang grenades found in Defendant's car do not fit within the definition of a weapon of mass death and destruction in N.C. Gen. Stat. § 14-288.8(c).

         B. ...


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