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State v. Pavkovic

Court of Appeals of North Carolina

September 17, 2019


          Heard in the Court of Appeals 22 August 2019.

          Appeal by defendant from final judgment entered 9 May 2018 by Judge Hugh B. Lewis in Mecklenburg County, Nos. 17 CRS 220028, 17 CRS 220032 Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Karen A. Blum, for the State.

          Bell Law Firm, by Hannah R. Bell, for defendant-appellant.

          ARROWOOD, JUDGE.

         In this appeal, defendant raises multiple issues relating to: (1) the constitutionality of a Charlotte noise ordinance, of his arrest, and of his probation sentence; and (2) alleged errors by the trial court in interpreting the noise ordinance, admitting certain evidence, and finding he resisted an officer. For the reasons set forth below, we affirm.

         I. Background

         On 27 May 2017, Ante Nedlko Pavkovic ("defendant") was speaking at an anti-abortion event held outside an abortion clinic located at 3220 Latrobe Drive, Charlotte, North Carolina ("the abortion clinic"). Charlotte-Mecklenburg Police Department ("CMPD") officers testified that they observed defendant standing at a table yelling into a microphone. CMPD Officer James Gilliland, testified that on the table was the amplifier or controls for the speaker to which the microphone transmitted, and defendant "was the only one on the microphone." Using a department-issued 3M' sound meter ("the noise meter"), CMPD officers observed "sustained readings" over eighty decibels, with occasional "spikes" up to eighty-four decibels. The officers alerted CMPD Sergeant B.K. Smith, who was also there to help monitor the event, of the violation. They then wrote a citation to the permit holder for the event, David Jordan.

         Officers then approached defendant, informed him of the violation, and asked for his identification so that they could issue a citation to him as well. Officer Gilliland twice asked defendant for his identification, but defendant refused both requests. Sergeant Smith then asked defendant three times to present his identification, with defendant refusing each time. After defendant's fifth refusal to present his identification, he attempted to argue that the officers could only cite the permit holder for any noise violations. After approximately one minute of argument, Sergeant Smith told Officer Graham to arrest defendant. As Officer Graham began handcuffing defendant, he stated that his identification was in his car, not on his person. CMPD charged defendant with violating Charlotte Ordinance § 15-64 ("the noise ordinance"), and resisting an officer by refusing to provide his identifying information to the CMPD officers.

         On 5 September 2018, sitting without a jury, the Honorable Judge Hugh B. Lewis concluded that defendant was guilty of both charges, but dismissed the charge of violating the noise ordinance. The court noted that the City of Charlotte ("the City") had discretion to decide which enforcement penalties it would levy against a violator of the noise ordinance, but that the City failed to do so. The trial court thus found the magistrate's order for defendant's noise ordinance violation "defective," because the State failed to clearly express which enforcement penalty it would levy against the defendant. Due to the defective order, the trial court dismissed the noise ordinance violation and concluded it would "not take any further action, other than saying the defendant violated the ordinance[.]" (emphasis added).

         The court convicted defendant of resisting an officer, and sentenced him to forty-five days imprisonment, and imposed a fine of $200.00. The sentence was suspended, and defendant was placed on supervised probation for twenty-four months. As a condition of probation, defendant was restrained from being within 1500 feet of the abortion clinic at which he had been protesting.

         Defendant gave oral notice of appeal in open court.

         II. Discussion

         On appeal, defendant argues (1) that CMPD had no reasonable suspicion to arrest him; (2) that the noise ordinance is facially unconstitutional; (3) that the Superior Court erred in allowing the meter used to measure defendant's volume to be admitted as evidence; (4) that the Superior Court erred in restraining defendant from being within 1500 feet of the abortion clinic for the term of his probation; and (5) that the Superior Court erred in concluding that defendant was "operating or allowing the operation of any sound amplification equipment" under the noise ordinance. To the extent that the first three arguments raise constitutional issues, we address them together.

         A. Standard of Review

         "When the trial court sits without a jury, the standard of review for this Court is whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts." State v. Dunn, 200 N.C.App. 606, 608, 685 S.E.2d 526, 528 (2009) (citing State v. Lazaro, 190 N.C.App. 670, 670-71, 660 S.E.2d 618, 619 (2008)). "The well-established rule is that findings of fact made by the court in a non-jury trial have the force and effect of a jury verdict and are conclusive on appeal if there is evidence to support them, although the evidence might have supported findings to the contrary." Henderson County v. Osteen, 297 N.C. 113, 120, 254 S.E.2d 160, 165 (1979) (citation omitted). "A trial court's unchallenged findings of fact are 'presumed to be supported by competent evidence and [are] binding on appeal.'" State v. Evans, __ N.C.App. __, __, 795 S.E.2d 444, 448 (2017) (quoting Hoover v. Hoover, __ N.C.App. __, __, 788 S.E.2d 615, 616 (2016)).

         B. Rules of Appellate Procedure Violations

         Defendant's brief contains numerous violations of our Rules of Appellate Procedure, including violations of Rule 26(g), Rule 28(b)(6), Rule 28(e), and Rule 28(g)(2).

         Defendant's brief is single spaced. Rule 26(g) requires appellate briefs to be double spaced. N.C. R. App. P. Rule 26(g) (2019). Rule 26(g), requiring parties doublespace their briefs, "facilitates the reading and comprehension of large numbers of legal documents by members of the Court and staff." State v. Riley, 167 N.C.App. 346, 347-48, 605 S.E.2d 212, 214 (2004). Rule 26(g) is plain on its face and a cursory reading of the Appellate Rules by counsel would have avoided such a blatant violation.

         Additionally, the brief fails to contain a proper table of authorities, fails to support its factual assertions with any reference to the Record or Transcript, and fails to properly arrange the argument consistent with the briefing requirements, all in violation of the provisions of Rule 28 of the Rules of Appellate Procedure. N.C. R. App. P. Rule 28 (2019). Finally, while the brief complies with the word limits set forth in the Rules, the declaration contained in the brief is deficient in that, while it attests compliance, the Court was required to conduct its own analysis of the documents to ascertain that the number of words was within the limits of Rule 28(j).

         1. Noncompliance

         North Carolina Rules of Appellate Procedure 25(b) provides that an appellate court "may, on its own initiative . . . impose a sanction against a party or attorney or both when the court determines that such party or attorney or both substantially failed to comply with these rules." N.C. R. App. P. 25(b) (2019). Sanctions allowable under Rule 25(b) are "of the type and in the manner prescribed by Rule 34 for frivolous appeals," id., which include dismissal, single or double costs, "damages ...

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