{ "id": 8414044, "name": "STATE OF NORTH CAROLINA v. ROGER DALE HOWELL, Defendant", "name_abbreviation": "State v. Howell", "decision_date": "2004-11-02", "docket_number": "No. COA03-1570", "first_page": "751", "last_page": "754", "citations": [ { "type": "official", "cite": "166 N.C. App. 751" } ], "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": "149 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "5" } ], "opinion_index": 0 }, { "cite": "267 N.C. 665", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560451 ], "year": 1966, "pin_cites": [ { "page": "671" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0665-01" ] }, { "cite": "92 L. Ed. 442", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1948, "pin_cites": [ { "page": "448" } ], "opinion_index": 0 }, { "cite": "333 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6156993 ], "year": 1948, "pin_cites": [ { "page": "25-26" } ], "opinion_index": 0, "case_paths": [ "/us/333/0018-01" ] }, { "cite": "91 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8697176 ], "year": 1884, "opinion_index": 0, "case_paths": [ "/nc/91/0550-01" ] }, { "cite": "244 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "389" }, { "page": "388", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "295 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562180 ], "weight": 2, "pin_cites": [ { "page": "239" }, { "page": "239" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0236-01" ] }, { "cite": "142 L. Ed. 2d 783", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "525 U.S. 1111", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11215905, 11215426, 11216068, 11215368, 11216203, 11215982, 11216145, 11215729, 11215604, 11215829, 11215542, 11215222, 11215285, 11215485 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/525/1111-10", "/us/525/1111-04", "/us/525/1111-12", "/us/525/1111-03", "/us/525/1111-14", "/us/525/1111-11", "/us/525/1111-13", "/us/525/1111-08", "/us/525/1111-07", "/us/525/1111-09", "/us/525/1111-06", "/us/525/1111-01", "/us/525/1111-02", "/us/525/1111-05" ] }, { "cite": "502 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "824" } ], "opinion_index": 0 }, { "cite": "348 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659735 ], "year": 1998, "pin_cites": [ { "page": "596" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0588-01" ] }, { "cite": "497 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "279" } ], "opinion_index": 0 }, { "cite": "348 N.C. 29", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659938 ], "year": 1998, "pin_cites": [ { "page": "34" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0029-01" ] } ], "analysis": { "cardinality": 443, "char_count": 7919, "ocr_confidence": 0.743, "pagerank": { "raw": 4.6922169990516086e-08, "percentile": 0.29486583966864477 }, "sha256": "c2abbc131011682cc6fc26919a9a8ba73e8130d753605a51a2945a4b614104bb", "simhash": "1:4aaaf3a4547b5591", "word_count": 1273 }, "last_updated": "2023-07-14T18:02:59.875915+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ROGER DALE HOWELL, Defendant" ], "opinions": [ { "text": "HUDSON, Judge.\nOn 25 November 2002, a jury convicted defendant on forty-three counts of third-degree sexual exploitation of a minor. The superior court Sentenced defendant to probation on 3 January 2003 and defendant appealed. While the appeal was ongoing, the State filed a Motion to Review Conditions of Release on 25 June 2003. On 27 June 2003, the trial court held a hearing and entered an order setting conditions of release pending appeal. Defendant appeals the release order, and for the reasons below, we affirm.\nIn June 2000, police seized defendant\u2019s computer pursuant to a search warrant and the SBI found nude or pornographic visual depictions of children on the hard drive. A grand jury indicted defendant on 7 August 2000 of multiple counts of sexual exploitation of a minor. On 10 August 2000, the superior court entered an order setting pretrial release conditions, including inter alia, that defendant not use or possess a computer pending trial.\nAfter the jury found defendant guilty of forty-three counts of third-degree sexual exploitation of a minor, the superior court sentenced defendant on 3 January 2003. The court sentenced defendant to suspended terms of imprisonment and placed him on supervised probation for sixty months. Among the conditions of probation, the court required that defendant not possess a computer. Defendant appealed and because his sentence was probationary, it was stayed on appeal, pursuant to N.C. Gen. Stat. \u00a7 15A-1451 (a) (4) (2002).\nDuring defendant\u2019s appeal, the State received information that defendant possessed a computer, whereupon officers executed a search pursuant to a warrant on 13 June 2003, and found a computer in defendant\u2019s residence. On 25 June 2003, the State filed a Motion to Review Conditions of Release, asking the court to determine if defendant had violated his conditions of release, or if none had been set, to determine and set such conditions. On 27 June 2003, the court conducted a hearing to set post-conviction release conditions pending appeal, rather than as a review of any existing conditions. The court imposed a new bond and set conditions, including the condition that defendant not possess a computer or reside in or visit any home where a computer was present.\nDefendant contends that the trial court lacked authority to impose conditions of release pending his appeal. He contends that the superior court may not set conditions of release pending appeal where a defendant\u2019s probationary sentence from his conviction at trial has been stayed pending appeal and he is not in custody. We do not agree.\nAt the hearing on the Motion to Review Conditions, the court set conditions pursuant to N.C. Gen. Stat. \u00a7 15A-536 (2002),- entitled \u201c[Release after conviction in the superior court.\u201d In pertinent part, this statute provides that: \u201cA defendant whose guilt has been established in the superior court and is either awaiting sentence or has filed an appeal from the judgment entered may be ordered released upon conditions in accordance with the provisions of this Article.\u201d N.C.G.S. \u00a7 15A-536 (a). Defendant argues that, applying its plain meaning, \u201crelease\u201d refers only to release from incarceration and that this statute may only apply to a defendant in custody, or facing custody. Here, it is undisputed that defendant was not in custody and that his probation was stayed pending appeal.\nDefendant correctly asserts that this Court must look first to the plain language of the statute to determine its meaning. State v. Bates, 348 N.C. 29, 34, 497 S.E.2d 276, 279 (1998). \u201cRelease\u201d is not defined in the North Carolina statutes and defendant suggests that the Court should adopt the common usage meaning: \u201cto set or make free.\u201d Defendant argues that, post-conviction, he cannot be set free unless he has first been incarcerated or subject to incarceration. Defendant cites no cases adopting his interpretation and we disagree.\nWe conclude that the plain language of N.C.G.S. \u00a7 15A-536 indicates that \u201crelease\u201d means \u201cto set or make free\u201d from the supervision and control of the court, as well as from imprisonment. It is well-settled that the intent of the legislature controls statutory construction. State v. Green, 348 N.C. 588, 596, 502 S.E.2d 819, 824 (1998), cert denied 525 U.S. 1111, 142 L. Ed. 2d 783 (1999). Here, we believe that the statute itself reveals the legislative intent to \u201creasonably assure the presence of the defendant when required and provide adequate protection to persons and the community.\u201d N.C.G.S. \u00a7 15A-536 (b). Defendant\u2019s proposed reading is inconsistent with this intent.\nAfter we consider the plain language of the statute, we may look at other indications of legislative intent, including \u201cstatutes in pari materia\u201d (relating to the same subject matter). In re Banks, 295 N.C. 236, 239, 244 S.E.2d 386, 389 (citing State v. Partlow, 91 N.C. 550 (1884)). The court is authorized to set conditions pre-trial, including restrictions on travel, associations, conduct, or place of abode. N.C.G.S. \u00a7 15A-534 (a) (2002). The court\u2019s authority is not limited to persons arrested for crimes for which imprisonment may be imposed. The provision at issue here, N.C.G.S. \u00a7 15A-536, parallels and incorporates the provisions of \u00a7 15A-534, and specifically allows the court to extend through the appeal any safeguards originally implemented under \u00a7 15A-534. We do not believe the legislature would have authorized the court to set pre-trial release conditions, before conviction, but not to set conditions after conviction. This interpretation, as the State points out, is illogical.\nAdditionally, the term \u201crelease\u201d is used in at least one other statute in the same article to mean release other than from imprisonment. For example, when a grand jury returns a bill of indictment as not a true bill, the court must order \u201crelease from custody, exoneration, or release from the conditions of pretrial release, as the case may be.\u201d N.C.G.S. \u00a7 15A-629 (emphasis added).\nAlthough a criminal statute must be strictly construed, \u201cthe courts must nevertheless construe it with regard to the evil which it is intended to suppress.\u201d In re Banks, 295 N.C. at 239, 244 S.E.2d at 388 (internal citations omitted). Here, the legislature intended to address possible flight by the defendant and/or danger to the community. Strict construction of criminal statutes does not require a reviewing court to \u201coverride common sense and evident statutory purpose\u201d or to give a statute its \u201c \u2018narrowest meaning.\u2019 \u201d United States v. Brown, 333 U.S. 18, 25-26, 92 L. Ed. 442, 448 (1948). Where possible, \u201cthe language of a statute will be interpreted so as to avoid an absurd consequence. . . .\u201d Hobbs v. Moore County, 267 N.C. 665, 671, 149 S.E. 2d 1, 5 (1966). We conclude that to apply N.C.G.S. \u00a7 15A-536 only where the defendant is in or facing custody would lead to the absurd result that the court would have no oversight over defendants with probationary sentences on appeal. We reject this argument.\nAffirmed.\nJudges TYSON and GEER concur.", "type": "majority", "author": "HUDSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.", "Leslie C. Rawls, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROGER DALE HOWELL, Defendant\nNo. COA03-1570\n(Filed 2 November 2004)\nBail and Pretrial Release\u2014 probationary sentence \u2014 appeal\u2014 conditions of release\nThe superior court could set conditions of release pending defendant\u2019s appeal pursuant to N.C.G.S. \u00a7 15A-536 where defendant\u2019s sentence from his conviction had been stayed pending appeal and he is not in custody. The language of the statute that defendant may be ordered \u201creleased\u201d upon conditions means to set or make free from the supervision and control of the court as well as from imprisonment.\n' Appeal by defendant from order entered 27 June 2003 by Judge Timothy L. Patti in the Superior Court in Gaston County. Heard in the Court of Appeals 1 September 2004.\nAttorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.\nLeslie C. Rawls, for defendant-appellant." }, "file_name": "0751-01", "first_page_order": 781, "last_page_order": 784 }