{ "id": 11434586, "name": "STATE OF NORTH CAROLINA v. LISA STRUM ALLEN", "name_abbreviation": "State v. Allen", "decision_date": "2001-06-19", "docket_number": "No. COA00-720", "first_page": "386", "last_page": "391", "citations": [ { "type": "official", "cite": "144 N.C. App. 386" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "369 U.S. 141", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165831 ], "weight": 6, "year": 1962, "pin_cites": [ { "page": "142" }, { "page": "630" }, { "page": "143" }, { "page": "631" } ], "opinion_index": 0, "case_paths": [ "/us/369/0141-01" ] }, { "cite": "344 S.E.2d 775", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4774343 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0193-01" ] }, { "cite": "65 L. Ed. 2d 1137", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1980, "opinion_index": 0 }, { "cite": "448 U.S. 907", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787596, 1787636, 1787637, 1787575, 1787641, 1787643 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/448/0907-04", "/us/448/0907-02", "/us/448/0907-06", "/us/448/0907-01", "/us/448/0907-05", "/us/448/0907-03" ] }, { "cite": "259 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "524" } ], "opinion_index": 0 }, { "cite": "298 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572332 ], "year": 1979, "pin_cites": [ { "page": "320" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0306-01" ] }, { "cite": "10 Wake Forest L. Rev. 1", "category": "journals:journal", "reporter": "Wake Forest L. Rev.", "year": 1974, "pin_cites": [ { "page": "13" } ], "opinion_index": 0 }, { "cite": "393 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "871", "parenthetical": "quoting Raymond B. Mallard, Inherent Power of the Courts of North Carolina, 10 Wake Forest L. Rev. 1, 13 (1974)" } ], "opinion_index": 0 }, { "cite": "327 N.C. 114", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2495307 ], "year": 1990, "pin_cites": [ { "page": "124", "parenthetical": "quoting Raymond B. Mallard, Inherent Power of the Courts of North Carolina, 10 Wake Forest L. Rev. 1, 13 (1974)" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0114-01" ] }, { "cite": "27 S.E.2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "pin_cites": [ { "page": "646" } ], "opinion_index": 0 }, { "cite": "223 N.C. 617", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614518 ], "year": 1943, "pin_cites": [ { "page": "619-20" } ], "opinion_index": 0, "case_paths": [ "/nc/223/0617-01" ] }, { "cite": "139 L. Ed. 2d 51", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "522 U.S. 830", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11491936, 11492389, 11491976, 11492093, 11492011, 11492428, 11492471, 11492142, 11492304, 11492509, 11492215, 11492248, 11492349, 11492191 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/us/522/0830-01", "/us/522/0830-11", "/us/522/0830-02", "/us/522/0830-04", "/us/522/0830-03", "/us/522/0830-12", "/us/522/0830-13", "/us/522/0830-05", "/us/522/0830-09", "/us/522/0830-14", "/us/522/0830-07", "/us/522/0830-08", "/us/522/0830-10", "/us/522/0830-06" ] }, { "cite": "688 So. 2d 764", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7430792 ], "pin_cites": [ { "page": "771" } ], "opinion_index": 0, "case_paths": [ "/so2d/688/0764-01" ] }, { "cite": "391 S.E.2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "160", "parenthetical": "motion for appropriate relief is a \"post-verdict\" motion" } ], "opinion_index": 0 }, { "cite": "326 N.C. 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306142 ], "year": 1990, "pin_cites": [ { "page": "535", "parenthetical": "motion for appropriate relief is a \"post-verdict\" motion" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0532-01" ] }, { "cite": "429 U.S. 14", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8128 ], "weight": 8, "year": 1976, "pin_cites": [ { "page": "14-15" }, { "page": "19" }, { "page": "16" }, { "page": "20" }, { "page": "16" }, { "page": "20" } ], "opinion_index": 0, "case_paths": [ "/us/429/0014-01" ] }, { "cite": "400 U.S. 470", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12047837 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "479" }, { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/us/400/0470-01" ] }, { "cite": "420 U.S. 377", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11643788 ], "weight": 4, "year": 1975, "pin_cites": [ { "page": "391-93", "parenthetical": "Double Jeopardy Clause does not bar appeal from pretrial dismissal of indictment" }, { "page": "276-77", "parenthetical": "Double Jeopardy Clause does not bar appeal from pretrial dismissal of indictment" }, { "page": "394" }, { "page": "278" } ], "opinion_index": 0, "case_paths": [ "/us/420/0377-01" ] }, { "cite": "430 U.S. 564", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12126181 ], "weight": 12, "year": 1977, "pin_cites": [ { "page": "571" }, { "page": "651" }, { "page": "575-76" }, { "page": "653-54" }, { "page": "565-66" }, { "page": "647-48" }, { "page": "575" }, { "page": "653-54" }, { "page": "576" }, { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/us/430/0564-01" ] }, { "cite": "449 S.E.2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 805", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550182, 2549415, 2549431, 2549882, 2549179 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0805-05", "/nc/337/0805-04", "/nc/337/0805-02", "/nc/337/0805-01", "/nc/337/0805-03" ] }, { "cite": "445 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "613" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 547", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12135816 ], "year": 1994, "pin_cites": [ { "page": "550" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0547-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-318.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 562, "char_count": 13976, "ocr_confidence": 0.76, "pagerank": { "raw": 2.4354444128520964e-07, "percentile": 0.8025191816202412 }, "sha256": "634cbaccfd12a42cf72d2efb3b9324f8330023661c5265d127c3583a2f1eeb2a", "simhash": "1:cbebbd36727acc72", "word_count": 2339 }, "last_updated": "2023-07-14T14:55:44.896074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and JOHN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. LISA STRUM ALLEN" ], "opinions": [ { "text": "GREENE, Judge.\nThe State of North Carolina appeals an order dated 14 January 2000 in favor of Lisa Strum Allen (Defendant).\nThe record shows Defendant was indicted on 26 October 1998 for felony child abuse, pursuant to N.C. Gen. Stat. \u00a7 14-318.4(a). Defendant was tried before a jury at the 1 November 1999 criminal session of the Superior Court of Johnston County. At the close of the State\u2019s evidence and at the close of all the evidence, Defendant moved to dismiss the charges against her based on insufficiency of the evidence. The trial court denied Defendant\u2019s motions. Subsequent to its deliberations, the jury was unable to reach a verdict. On 10 November 1999, therefore, the trial court declared a mistrial. The trial court then asked the parties whether there was \u201canything\u201d they \u201cwould like to put in the record before [it] dismissed] court.\u201d Both parties responded they had \u201cnothing,\u201d and court was adjourned sine die.\nOn 19 November 1999, Defendant filed a motion for appropriate relief, seeking a dismissal of the charge of felony child abuse. In support of her motion, Defendant stated that \u201cthe evidence, at the close of all the evidence, was insufficient to justify the submission of the case to the jury.\u201d In a motion filed 29 November 1999, the State moved to dismiss Defendant\u2019s motion for appropriate relief on the ground the trial court did not have authority to rule on the motion \u201csince no verdict ha[d] been received.\u201d Additionally, on 29 November 1999, a. superceding indictment for felony child abuse was issued against Defendant, pursuant to N.C. Gen. Stat. \u00a7 15A-646.\nIn an order dated 14 January 2000, the trial court treated Defendant\u2019s \u201cmotion for appropriate relief\u2019 as two motions: (1) a motion to dismiss made pursuant to N.C. Gen. Stat. \u00a7 15A-1227; and (2) a motion for appropriate relief made pursuant to N.C. Gen. Stat. \u00a7 15A-1414(a). The trial court concluded, in pertinent part, that \u201c[it] should have allowed the motion to dismiss made by . . . Defendant at the close of all the evidence during the trial... [and that it] made an error of law by submission of the case to the jury.\u201d Additionally, the trial court concluded \u201cthat the [26 October 1998] bill of indictment was fatally defective by the omission of necessary statutory allegations with regard to the charge of felon[y] child abuse.\u201d The trial court, therefore, dismissed the charge against Defendant with prejudice.\nThe dispositive issue is whether the State\u2019s appeal of the trial court\u2019s 14 January 2000 order is barred by the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and Article I, \u00a7 19 of the North Carolina Constitution and, if not, whether the trial court had authority to rule on Defendant\u2019s motions seeking dismissal of the charge against her.\nDefendant argues the rule against double jeopardy prohibits her further prosecution; therefore, the State\u2019s appeal of the trial court\u2019s 14 January 2000 order must be dismissed. We disagree.\nDouble Jeopardy Clause\nThe State has a statutory right to appeal a judgment dismissing criminal charges \u201c[u]nless the rule against double jeopardy prohibits further prosecution\u201d of the defendant. N.C.G.S. \u00a7 15A-1445(a)(l) (1999); State v. Priddy, 115 N.C. App. 547, 550, 445 S.E.2d 610, 613, disc. review denied, 337 N.C. 805, 449 S.E.2d 751 (1994). Generally, the rule against double jeopardy prohibits appellate review of a verdict of acquittal because such review places a defendant twice in jeopardy. United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 51 L. Ed. 2d 642, 651 (1977). Additionally, \u201cwhat constitutes an \u2018acquittal\u2019 is not . . . controlled by the form of the [trial court\u2019s] action\u201d; rather, the appellate court must determine \u201cwhether the ruling of the [trial court], whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.\u201d Id. Thus, a trial court\u2019s dismissal of a charge based on insufficiency of the evidence is an \u201cacquittal\u201d for the purposes of the Double Jeopardy Clause, provided the dismissal does not occur during the \u201cpretrial\u201d stage of the proceedings. Id. at 575-76, 51 L. Ed. 2d at 653-54; Serfass v. United States, 420 U.S. 377, 391-93, 43 L. Ed. 2d 265, 276-77 (1975) (Double Jeopardy Clause does not bar appeal from pretrial dismissal of indictment). When, however, a dismissal occurs during the \u201cpretrial\u201d stage of the proceedings, the defendant has not been \u201c \u2018put to trial before the trier of the facts\u2019 \u201d and the Double Jeopardy Clause does not prohibit further prosecution. Serfass, 420 U.S. at 394, 43 L. Ed. 2d at 278 (quoting United States v. Jorn, 400 U.S. 470, 479, 27 L. Ed. 2d 543, 553 (1971)).\nIn United States v. Sanford, 429 U.S. 14, 14-15, 50 L. Ed. 2d 17,19 (1976), the Supreme Court addressed the issue of whether an appeal was barred by the Double Jeopardy Clause when the trial court declared a mistrial because the jury was unable to reach a verdict and, four months subsequent to the declaration of mistrial, the trial court dismissed the indictment against the defendants on the ground \u201cthe Government had consented to the activities which formed the basis of the indictment.\u201d The Supreme Court determined that because the trial court\u2019s \u201cdismissal of the indictment occurred several months after the first trial had ended in a mistrial, but before the retrial of [the defendants] had begun,\u201d the dismissal occurred during the \u201cpretrial\u201d stage of the proceedings. Id. at 16, 50 L. Ed. 2d at 20. Thus, the Supreme Court determined the issue before it was governed by Serfass. Id. Accordingly, pursuant to Serfass, the Supreme Court held the Double Jeopardy Clause did not bar an appeal by the United States of the trial court\u2019s \u201cpretrial\u201d dismissal of the charge against defendants because jeopardy had not attached at the time of the dismissal. Id. Based on the teaching of Sanford, we must determine in the case sub judice whether the trial court\u2019s order dismissing the charge against Defendant occurred during \u201cpretrial\u201d proceedings or after jeopardy had attached in order to determine whether the State\u2019s appeal is precluded by the Double Jeopardy Clause.\nTiming of Dismissal\nIn this case, the trial court declared a mistrial on 10 November 1999 and court was thereafter adjourned sine die. Thus, Defendant\u2019s section 15A-1227 motion was not timely because it was not made before the end of the session. N.C.G.S. \u00a7 15A-1227(a)(4) (1999) (motion for dismissal based on insufficiency of the evidence may be made \u201c[a]fter discharge of the jury without a verdict and before the end of the session\u201d). Additionally, Defendant\u2019s section 15A-1414 motion for appropriate relief was not proper because it was not made after a verdict had been reached. See State v. Handy, 326 N.C. 532, 535, 391 S.E.2d 159, 160 (1990) (motion for appropriate relief is a \u201cpost-verdict\u201d motion); N.C.G.S. \u00a7 15A-1414(a) (1999) (motion for appropriate relief may be made \u201c[a]fter the verdict but not more than 10 days after entry of judgment\u201d). The Defendant\u2019s motions, therefore, must be characterized as \u201cpretrial\u201d motions brought \u201cprior to a trial that the Government had a right to prosecute and that... [Defendant was required to defend.\u201d Sanford, 429 U.S. at 16, 50 L. Ed. 2d at 20. Accordingly, the State\u2019s appeal of the trial court\u2019s 14 January 2000 order is not barred by the Double Jeopardy Clause. See McGraw v. State, 688 So. 2d 764, 771 (Miss.) (holding, pursuant to Sanford and Serf ass, that a defendant\u2019s untimely motion for acquittal made subsequent to a jury deadlock must be treated as a pretrial motion and, thus, review of the trial court\u2019s judgment granting such motion is not precluded by the Double Jeopardy Clause), cert. denied, 522 U.S. 830, 139 L. Ed. 2d 51 (1997). Furthermore, because Defendant\u2019s motions were improper under sections 15A-1227 and 15A-1414, the trial court was without authority to rule on these motions; thus, the trial court\u2019s 14 January 2000 order is reversed.\nReversed.\nJudges TIMMONS-GOODSON and JOHN concur.\n. Because the trial court treated Defendant\u2019s 19 November 1999 \u201cmotion for appropriate relief\u2019 as two separate motions, we also treat Defendant\u2019s motion as two separate motions.\n. The facts in Sanford are distinguishable from cases in which a defendant makes a timely motion to dismiss the charges against her subsequent to a trial ending in jury deadlock, pursuant to the applicable rules of criminal procedure. In Martin Linen, 430 U.S. at 565-66, 51 L. Ed. 2d at 647-48, the defendant\u2019s trial resulted in a deadlocked jury. Six days after the trial court dismissed the jury, the defendant made a \u201ctimely\u201d motion for a judgment of acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure. Id. Rule 29(c) provides a defendant may bring a motion for judgment of acquittal within 7 days after a jury is discharged without having reached a verdict. Fed. R. Crim. P. 29(c). On appeal from the judgment of acquittal, the Martin Linen court found that, in contrast to the judgment in Sanford, the judgment of acquittal in Martin Linen was not a \u201cpretrial\u201d order. Martin Linen, 430 U.S. at 575, 51 L. Ed. 2d at 653-54. The United States, therefore, was precluded by the Double Jeopardy Clause from appealing the trial court\u2019s judgment. Id. at 576, 51 L. Ed. 2d at 654.\n. Defendant argues in her brief to this Court that absent any statutory authority to grant Defendant\u2019s motions, the trial court \u201chad the inherent power to so rule.\u201d We disagree. The inherent powers of a trial court \u201care limited to such powers as are essential to the existence of the [trial] court and necessary to the orderly and efficient exercise of its jurisdiction.\u201d Hopkins v. Barnhardt, 223 N.C. 617, 619-20, 27 S.E.2d 644, 646 (1943). Additionally, for a trial court\u2019s power to be inherent \u201c \u2018it must be such ... as is not granted or denied to it by the Constitution or by a constitutionally enacted statute.\u2019 \u201d State v. Gravette, 327 N.C. 114, 124, 393 S.E.2d 865, 871 (1990) (quoting Raymond B. Mallard, Inherent Power of the Courts of North Carolina, 10 Wake Forest L. Rev. 1, 13 (1974)). We acknowledge that the North Carolina Supreme Court has held a trial court \u201chas the inherent authority to order a change of venue\u201d even when the statutory power to change venue does not permit such an order. See State v. Barfield, 298 N.C. 306, 320, 259 S.E.2d 510, 524 (1979), cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137 (1980), overruled on other grounds, State v. Johnson, 317 N.C. 193,344 S.E.2d 775 (1986). Nevertheless, the general rule is that the trial court does not have inherent authority to act in a manner inconsistent with a statute addressing such action. Thus, in the case sub judice, the trial court did not have the inherent authority to rule on Defendant\u2019s motions when sections 15A-1227 and 15A-1414 specifically provide rules for when such motions can be made and Defendant\u2019s motions were not made in compliance with those rules.\n. Defendant argues in her brief to this Court that the State\u2019s appeal in the case sub judice is analogous to the appeal by the United States in Fong Foo v. United States, 369 U.S. 141, 7 L. Ed. 2d 629 (1962). We disagree. In Fong Foo, the trial court entered a judgment of acquittal during the Government\u2019s presentation of its case-in-chief. Id. at 142, 7 L. Ed. 2d at 630. On appeal, the Supreme Court held the Government\u2019s appeal of the judgment of acquittal was precluded by the Double Jeopardy Clause. Id. at 143, 7 L. Ed. 2d at 631. In contrast to the case sub judice, the dismissal in Fong Foo occurred after the defendants had been placed in jeopardy and not during the pretrial stage of the proceedings. See Wayne R. LaFave et. al., 5 Criminal Procedure \u00a7 25.3(d), at 672 (2d ed. 1999) (discussing the distinction between Sanford, in which dismissal occurred during the pretrial proceedings, and Fong Foo, in which dismissal occurred during trial). Thus, the Supreme Court\u2019s holding in Fong Foo is not applicable to the facts of the case sub judice.\n. We note that the trial court\u2019s 14 January 2000 order concludes \u201cthe [26 October 1998] bill of indictment was fatally defective.\u201d Because the record shows a superced-ing indictment was issued on 29 November 1999, we do not address the issue of whether the 26 October 1998 bill of indictment was \u201cfatally defective.\u201d See N.C.G.S. \u00a7 15A-646 (1999) (first indictment superceded by second indictment).", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Amy C. Kunstling, for the State.", "Narron, O\u2019Hale and Whittington, P.A., by John P. O\u2019Hale, for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LISA STRUM ALLEN\nNo. COA00-720\n(Filed 19 June 2001)\nConstitutional Law\u2014 double jeopardy \u2014 felony child abuse\u2014 dismissal after mistrial and end of session\nThe State\u2019s appeal in a felony child abuse case of the trial court\u2019s order, entered after the trial ended in a mistrial and court was adjourned sine die, which allowed defendant\u2019s N.C.G.S. \u00a7 15A-1227 motion to dismiss based on insufficiency of the evidence and defendant\u2019s N.C.G.S. \u00a7 15A-1414 motion for appropriate relief is not barred by the double jeopardy clause because: (1) a dismissal during a pretrial stage of the proceedings does not prohibit further prosecution of defendant under the double jeopardy clause; (2) the \u00a7 15A-1227 motion to dismiss was not timely because it was not made before the end of the session; (3) the \u00a7 15A-1414 motion for appropriate relief was not proper because it was not made after a verdict; and (4) defendant\u2019s motions thus must be treated as \u201cpretrial\u201d motions, and jeopardy had not attached at the time of the court\u2019s order. Furthermore, the trial court was without authority to rule on defendant\u2019s motions because they were improper under \u00a7\u00a7 15A-1227 and 15A-1414.\nAppeal by State from order dated 14 January 2000 by Judge James R. Vosburgh in Johnston County Superior Court. Heard in the Court of Appeals 15 May 2001.\nAttorney General Michael F. Easley, by Assistant Attorney General Amy C. Kunstling, for the State.\nNarron, O\u2019Hale and Whittington, P.A., by John P. O\u2019Hale, for defendant-appellee." }, "file_name": "0386-01", "first_page_order": 414, "last_page_order": 419 }