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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