in the Court of Appeals 22 August 2019.
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.
Law Firm, by Hannah R. Bell, for defendant-appellant.
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.
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.
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.
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[.]"
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
gave oral notice of appeal in open court.
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.
Standard of Review
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)).
Rules of Appellate Procedure Violations
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).
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.
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
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 ...