{ "id": 9000408, "name": "ANDREW ARNOLD POWELL, JR., Petitioner v. NORTH CAROLINA CRIMINAL JUSTICE EDUCATION AND TRAINING STANDARDS COMMISSION, Respondent", "name_abbreviation": "Powell v. North Carolina Criminal Justice Education & Training Standards Commission", "decision_date": "2004-08-17", "docket_number": "No. COA03-1139", "first_page": "848", "last_page": "853", "citations": [ { "type": "official", "cite": "165 N.C. App. 848" } ], "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": "196 S.E.2d 731", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "734", "parenthetical": "finding immaterial whether a challenged finding was \"denominated a finding of fact, a conclusion of law, or a combination of both\"" } ], "opinion_index": 0 }, { "cite": "283 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559440 ], "year": 1973, "pin_cites": [ { "page": "581", "parenthetical": "finding immaterial whether a challenged finding was \"denominated a finding of fact, a conclusion of law, or a combination of both\"" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0577-01" ] }, { "cite": "320 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "434" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 555", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523570 ], "year": 1984, "pin_cites": [ { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0555-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-106", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "year": 2003, "opinion_index": 0 }, { "cite": "565 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "17", "parenthetical": "citations and internal quotation marks omitted" }, { "parenthetical": "citations and internal quotation marks omitted" }, { "page": "14" }, { "page": "18", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "356 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511222 ], "year": 2002, "pin_cites": [ { "page": "13", "parenthetical": "citations and internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0001-01" ] }, { "cite": "593 S.E.2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "769" } ], "opinion_index": 0 }, { "cite": "358 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986024 ], "year": 2004, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0190-01" ] } ], "analysis": { "cardinality": 653, "char_count": 14700, "ocr_confidence": 0.729, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2132481468996841 }, "sha256": "bf62ad533494deb388b3c08414249ddaae3593b1419169b10ee2fd9e51d6736e", "simhash": "1:db6b56b777621fd0", "word_count": 2299 }, "last_updated": "2023-07-14T17:46:04.930387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and LEVINSON concur." ], "parties": [ "ANDREW ARNOLD POWELL, JR., Petitioner v. NORTH CAROLINA CRIMINAL JUSTICE EDUCATION AND TRAINING STANDARDS COMMISSION, Respondent" ], "opinions": [ { "text": "CALABRIA, Judge.\nThe North Carolina Criminal Justice Education and Training Standards Commission (\u201crespondent\u201d) appeals the trial court\u2019s order reversing and remanding with instructions to vacate respondent\u2019s final agency decision to revoke and suspend the law enforcement certification of Andrew Arnold Powell, Jr. (\u201cpetitioner\u201d). We reverse the decision of the trial court and remand for further proceedings.\nPetitioner was employed by the Madison Police Department as a law enforcement officer in February of 2000. As a pre-requisite to such work, petitioner sought and acquired law enforcement officers\u2019 certification on 15 October 1986. Besides his duties as a law enforcement officer, petitioner also owned two used car dealerships and a trailer park located in Virginia.\nOn or about 25 February 2000, Investigator Gerald Cheney (\u201cCheney\u201d) of the North Carolina Division of Motor Vehicles conducted a routine business inspection of one of petitioner\u2019s dealerships. Cheney\u2019s inspection consisted of recording the Vehicle Identification Number (\u201cVIN\u201d) of selected vehicles and then validating the VIN\u2019s via the dealer\u2019s title documentation. One of the vehicles Cheney attempted to examine was a 1993 Toyota Camry bearing dealer tags, which petitioner frequently used as his personal automobile. After comparing the VIN on the door of the Camry to the Gamry\u2019s confidential VIN, Cheney determined the two VIN\u2019s did not match. When Cheney requested documentation, petitioner was unable to produce any title or bill of sale for the Camry and opined such documentation might be at his other dealership. Cheney allowed petitioner to drive the Camry to an appointment but warned him not to allow anything to happen to the car. Cheney inspected twenty cars with appropriate supporting documentation for each car. When petitioner returned later that day to the dealership, he opted not to drive the Camry in favor of bringing \u201canother car for Chaney to inspect.\u201d Cheney later determined the Camry\u2019s confidential VIN corresponded to a car previously reported stolen.\nThe following day, petitioner drove the Camry to the trailer park in Virginia after a tenant complained of a water leak. Petitioner had previously received notice of recurring drug activity at the trailer park. When petitioner left the Camry unattended to inspect the premises, it was stolen. Petitioner reported the theft to the authorities in Virginia; however, petitioner later authorized the investigation of the theft to be moved into an \u201cinactive\u201d category and did not file an insurance claim with respect to the stolen car. After the theft of the Camry, petitioner was unable to locate the documents regarding the title and/or bill of sale at the other dealership and subsequently maintained they must have been in the trunk of the stolen Camry.\nIn a letter dated 23 August 2001, respondent\u2019s director informed petitioner the Standards Committee found probable cause existed to believe petitioner\u2019s certification as a law enforcement officer should be (1) permanently revoked on the grounds that he committed the felony of \u201cReceiving or Transferring Stolen Vehicles\u201d and (2) suspended for not less than five years on the grounds that he committed the misdemeanor offense of obstruction of justice. The matter was heard before an administrative law judge (\u201cALJ\u201d) on 12 August 2002. Petitioner maintained, in pertinent part, that (1) no other car inspected had any problems, (2) there was no evidence petitioner changed the VIN or had reason to know the car was stolen, (3) petitioner was not informed until after the Camry was stolen from the trailer park that it had previously been reported stolen, and (4) he purchased the Camry at an auction and sometimes sellers pass stolen vehicles back into North Carolina from other states with a falsified title to sell at such auctions without the purchaser\u2019s knowledge. In the proposed decision, the ALJ concluded petitioner committed both offenses at issue, and petitioner\u2019s law enforcement certification should be suspended for not less than five years and permanently revoked. In the final agency decision, respondent adopted the ALJ\u2019s proposed decision. Relevant to this appeal, conclusion of law four provides:\n[o]n or about February 26, 2000, Petitioner committed the felonious offense of \u201cReceiving or Transferring Stolen Vehicles\u201d when the Petitioner unlawfully, willfully and feloniously did possess a vehicle, to wit, a 1993 black Toyota Camry, having reason to believe said vehicle has been stolen or unlawfully taken in violation of N.C. G.S. \u00a720-106.\nPetitioner sought judicial review.\nThe trial court\u2019s order, issued 26 June 2003, reversed and remanded the final agency decision for vacation. The trial court held conclusion of law four was patently erroneous because \u201cthere is no one felony offense of \u2018Receiving or Transferring Stolen Vehicles.\u2019 \u201d In addition, the trial court held conclusion of law four lacked required findings of fact to \u201csupport a conclusion of law that the petitioner either committed the felony offense of knowingly receiving a stolen vehicle with intent to procure title or the felony offense of knowingly transferring a stolen vehicle with intent to pass title.\u201d Finally, the trial court questioned the adequacy of respondent\u2019s pleadings in the 23 August 2003 letter since the pleadings failed to charge the offenses of receiving a stolen vehicle or transferring a stolen vehicle \u201cwith sufficient certainty to apprise petitioner of the specific accusation against him so as to enable him to prepare his defense.\u201d Respondent appeals.\n\u201cJudicial review of the final decision of an administrative agency in a contested case is governed by [N.C. Gen. Stat. \u00a7] 150B-51(b) of the APA.\u201d Watkins v. N.C. State Bd. of Dental Exam\u2019rs, 358 N.C. 190, 199, 593 S.E.2d 764, 769 (2004). \u201cThe proper standard for the superior court\u2019s judicial review \u2018depends upon the particular issues presented on appeal.\u2019 \u201d Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002) (citations and internal quotation marks omitted). Where \u201ca petitioner contends the [b]oard\u2019s decision was based on an error of law, \u2018de novo\u2019 review is proper. Id. (citations and internal quotation marks omitted). \u201c[T]he appellate court examines the trial court\u2019s order [regarding an agency decision] for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.\u201d Id., at 14, 565 S.E.2d at 18 (citation omitted). Where, as here, the trial court examines the agency\u2019s final decision and finds it affected by errors of law, de novo review is proper. Because the trial court expressly undertook de novo review, we need only determine whether the trial court did so properly.\nThe trial court correctly noted N.C. Gen. Stat. \u00a7 20-106 (2003) prohibits three distinct Class H felonies: (1) possessing a stolen vehicle, (2) receiving a stolen vehicle, and (3) transferring a stolen vehicle. Thereafter, the entirety of the trial court\u2019s analysis is limited to only the latter two prohibited offenses. For example, the trial court held\nthe \u201cFINDINGS OF FACT\u201d [relevant to respondent\u2019s conclusion that petitioner violated N.C. Gen. Stat. \u00a7 20-106] do not include findings that petitioner on or about February 26, 2000, received from, or transferred to, another person, the Camry with the intent to procure or pass title, or that he then knew or had reason to know the Camry had been stolen or unlawfully taken, thus the respondent\u2019s findings do not support a conclusion of law that petitioner either committed the felony offense of knowingly receiving a stolen vehicle with intent to procure title or the felony offense of knowingly transferring a stolen vehicle with intent to pass title.\n(Emphasis added). Likewise, in considering respondent\u2019s pleading that \u201cpetitioner committed \u2018the\u2019 felonious offense of \u2018Receiving or Transferring Stolen Vehicles,\u2019 \u201d the trial court reasoned the letter which served as respondent\u2019s pleading did\nnot sufficiently charge petitioner with either one or both of these felony offenses since the charges are in the alternative and not conjunctive. Further, the necessary essential elements of intent (receive/procure, transfer/pass) with respect to title are not alleged nor is the name of another person associated with such receipt or transfer. The alleged dates of \u201cthe\u201d offense cover a range of approximately five years. There is no allegation of the State or County in which the receipt or transfer occurred. In summary, respondent\u2019s pleading does not . . . clearly allege all essential elements of either one of the two alternative charges.\n(Emphasis added).\nThe error in the trial court\u2019s review is manifest: it fails to analyze the final agency decision with respect to possession of a stolen vehicle, the felony offense under which respondent was proceeding against petitioner. Contrary to the trial court\u2019s order, respondent\u2019s letter dated 23 August 2001 informed petitioner that respondent had reason to believe petitioner \u201ccommitted the felonious offense of \u2018Receiving or Transferring Stolen Vehicles\u2019 by unlawfully, willfully, and feloniously possessing a vehicle [petitioner] had reason to believe had been stolen or unlawfully taken.\u201d (Emphasis added). The letter went on to describe the color, year, make, model, and VIN of the stolen vehicle as well as the time period petitioner possessed the vehicle.\nHaving determined the trial court failed to consider the felony offense of possession of a stolen vehicle, we need only determine whether such consideration was warranted. We conclude it was for multiple reasons. First, as the trial court correctly noted, N.C. Gen. Stat. \u00a7 20-106 prohibits possessing, receiving, and transferring a stolen vehicle. Second, N.C. Gen. Stat. \u00a7 20-106 is entitled \u201cReceiving or transferring stolen vehicles,\u201d and respondent\u2019s letter simply incorporated that title. Such incorporation does not limit respondent to charging either of the latter two prohibited offenses. The General Assembly deemed the title of the statute broad enough to cover three offenses, and we can discern no compelling reason why it would be competent to designate only two of the three offenses within that statute. Third, the elements of possession of a stolen vehicle under N.C. Gen. Stat. \u00a7 20-106 are (1) a person possesses a vehicle (2) that he knows or has reason to believe was stolen or unlawfully taken, see State v. Craver, 70 N.C. App. 555, 559, 320 S.E.2d 431, 434 (1984), which parallels the letter\u2019s language that petitioner \u201cpossessed] a vehicle\u201d he \u201chad reason to believe had been stolen or unlawfully taken.\u201d We reverse the trial court\u2019s order and remand for further consideration as to the offense of possession of a stolen vehicle.\nWe also hold summarily that, by identifying the period of possession and the identity of the stolen vehicle by color, year, make, model, and VIN, petitioner\u2019s assertion that the facts alleged were \u201cso unspecific as to be inadequate\u201d is without merit.\nFinally, to the extent the trial court\u2019s order rests upon the absence of a finding of fact \u201cthat petitioner on or about February 26, 2000 . . . then knew.or had reason to know the Camry had been stolen or unlawfully taken,\u201d the order does not properly consider the express language contained in conclusion of law four of the final agency decision, which provides that petitioner possessed the Camry with \u201creason to believe said vehicle ha[d] been stolen or unlawfully taken in violation of N.C.G.S. \u00a7 20-106.\u201d See Insurance Co. v. Keith, 283 N.C. 577, 581, 196 S.E.2d 731, 734 (1973) (finding immaterial whether a challenged finding was \u201cdenominated a finding of fact, a conclusion of law, or a combination of both\u201d). The trial court undertook no analysis of the supporting evidence; therefore, the issue of whether the evidence of record sufficiently supports the findings of fact is beyond our scope of review in this appeal.\nRespondent has not argued that the trial court\u2019s order was erroneous in any respect with regards to the misdemeanor obstruction of justice charge. Accordingly, any argument concerning error by the trial court relative to that charge is deemed abandoned. N.C. R. App. P. 28(b)(6) (2004).\nReversed and remanded.\nJudges WYNN and LEVINSON concur.\n. Petitioner contends respondent failed to give appropriate notice by failing to \u201creference . . . the particular sections of the statutes and rules involved].]\u201d See N.C. Gen. Stat. \u00a7 150B-38(b)(2) (2003). However, N.C. Gen. Stat. \u00a7 20-106, the statute petitioner was accused of violating, has no subsections and is, in fact, a single sentence. In addition, the letter clearly specified possession was the basis of revocation.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Moss, Mason & Hill, by Matthew L. Mason and William L. Hill, for petitioner-appellee.", "Attorney General Roy \u25a0Cooper; by Assistant Attorney General Lorrin Freeman, for respondent-appellant." ], "corrections": "", "head_matter": "ANDREW ARNOLD POWELL, JR., Petitioner v. NORTH CAROLINA CRIMINAL JUSTICE EDUCATION AND TRAINING STANDARDS COMMISSION, Respondent\nNo. COA03-1139\n(Filed 17 August 2004)\nPolice Officers\u2014 revocation and suspension of law enforcement certification \u2014 receiving or transferring stolen vehicles \u2014 obstruction of justice .\nThe trial court erred by reversing and remanding respondent North Carolina Criminal Justice Education and Training Standards Commission\u2019s final agency decision to revoke and suspend the law enforcement certification of petitioner based on committing the felony of possession of a stolen vehicle and obstruction of justice, because: (1) the trial court\u2019s review failed to analyze the final agency decision with respect to possession of a stolen vehicle, the felony offense under which respondent was proceeding against petitioner; (2) by identifying the period of possession and the identity of the stolen vehicle by color, year, make, model, and VIN, petitioner\u2019s assertion that the facts alleged were \u201cso unspecific as to be inadequate\u201d is without merit; (3) the issue of whether the evidence of record sufficiently supported the findings of fact was beyond the Court of Appeals\u2019 scope of review when the trial court undertook no analysis of the pertinent supporting evidence; and (4) respondent failed to argue that the trial court\u2019s order was erroneous with respect to the misdemeanor obstruction of justice charge, and thus, any argument concerning error relative to that charge is abandoned.\nAppeal by respondent from order entered 26 June 2003 by Judge Judson D. DeRamus, Jr. in Rockingham County Superior Court. Heard in the Court of Appeals 25 May 2004.\nMoss, Mason & Hill, by Matthew L. Mason and William L. Hill, for petitioner-appellee.\nAttorney General Roy \u25a0Cooper; by Assistant Attorney General Lorrin Freeman, for respondent-appellant." }, "file_name": "0848-01", "first_page_order": 880, "last_page_order": 885 }