{
  "id": 4159678,
  "name": "STATE OF NORTH CAROLINA v. JAMEL SHERROD, Defendant",
  "name_abbreviation": "State v. Sherrod",
  "decision_date": "2008-08-05",
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    "judges": [
      "Judges WYNN and JACKSON concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. JAMEL SHERROD, Defendant"
    ],
    "opinions": [
      {
        "text": "BRYANT, Judge.\nJamel Sherrod (defendant) appeals from a judgment revoking his probation for being in possession of an \u201cexplosive device.\u201d Because we hold that firearm ammunition alone is not an \u201cexplosive device\u201d as connoted in North Carolina General Statute 15A-1343(b)(5), we reverse defendant\u2019s conviction.\nFacts\nDefendant pled guilty to possessing cocaine with intent to sell or deliver on 11 December 2006 and was given a suspended sentence of ten to twelve months on condition that he satisfy the terms of his probation for thirty-six months. As a special condition, defendant was sentenced to the Intensive Supervision Program, and he informed the probation office of his temporary residence at his uncle\u2019s house in Fremont, North Carolina.\nOn 22 January 2007, six weeks after defendant\u2019s conviction, Probation Officer Merwyn Smith conducted an unannounced curfew check at the Fremont location. Upon pulling his car into the driveway, Officer Smith watched defendant leave the doorway and close the door behind him on his way inside the house. Officer Smith knocked on the door asking to speak to defendant, but was greeted only by having the door slammed in his face twice. Officer Smith contacted the sheriff\u2019s department regarding defendant\u2019s suspicious behavior, and a decision was made to conduct a warrantless search pursuant to the special terms of defendant\u2019s probation.\nTwo sheriff\u2019s deputies arrived at the residence to assist, and defendant led them to his bedroom. In his drawer chest, a grocery bag was discovered containing .45 caliber hollow point bullets, a separate box of bullets missing several rounds, and a high capacity gun magazine containing about twenty-five nine millimeter bullets.\nNo firearms were found in defendant\u2019s living area, but a further search revealed a shotgun in the hall closet. Defendant\u2019s uncle claimed ownership, and no other firearms were found on the premises. Officer Smith filed a violation report the same day, and alleged defendant had breached a regular condition of his probation requiring him to \u201c[p]ossess no firearm, explosive device or other deadly weapon.\u201d\nA hearing was held on 5 and 6 March 2007 regarding the allegations of the report, and the trial court found that defendant was in constructive possession of an \u201cexplosive device\u201d in violation of the regular terms of his probation. Judgment was announced in open court on 6 March 2007, and notice of appeal was given thereafter.\nDefendant raises two assignments of error on appeal: (I) whether the trial court abused its discretion in revoking defendant\u2019s probation by finding him in possession of an \u201cexplosive device\u201d when no evidence was offered to support a finding that a bullet is an \u201cexplosive device\u201d; and, (II) whether the trial court erred in convicting defendant of a probation violation for possessing an \u201cexplosive device\u201d when insufficient written findings were made to support such a conclusion. Because we hold that firearm ammunition, by itself, does not qualify as an \u201cexplqsive device\u201d as a matter of law under the first assignment of error, we need not address defendant\u2019s second assignment of error.\nStandard of Review\nFindings made in support of revoking probation must be supported by competent evidence, and will not be disturbed on appeal without a showing that the trial court committed a \u201cmanifest abuse of discretion.\u201d State v. Guffey, 253 N.C. 43, 45, 116 S.E.2d 148, 150 (1960). Alleged violations of probationary conditions need not be proven beyond a reasonable doubt, rather, the evidence need only be sufficient to reasonably satisfy the judge in the exercise of his sound discretion that a valid condition of the suspended sentence has been violated. State v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000). Probation will only be revoked if the State satisfies its burden of proof to show that defendant either willfully violated a term of probation or violated a condition without lawful excuse. State v. Lucas, 58 N.C. App. 141, 145, 292 S.E.2d 747, 750 (1982).\nI\nThis appeal illustrates the balance between the trial court\u2019s obligation to punish a defendant\u2019s abuse of the grace extended to him and a defendant\u2019s right to rely on the terms of his probation. State v. Hewett, 270 N.C. 348, 352-53, 154 S.E.2d 476, 479 (1967). In this case, irrespective of defendant\u2019s actions, the abuse alleged does not rise to the level of a probation violation within the terms of the agreement between defendant and the State.\nOur examination must begin by noting that the General Assembly has not defined \u201cexplosive device\u201d within Chapter 15A, and other def- \u2022 initions of \u201cexplosive device\u201d within our code are limited such that they do not apply to N.C.G.S. \u00a7 15A-1343. See N.C. Gen. Stat. \u00a7 14-50.1 (2007) (definition of \u201cexplosive or incendiary device or material\u201d limited to Art. 13 of Ch. 14); N.C. Gen. Stat. \u00a7 14-72(b)(3) (2007) (separate definition of the term \u201cexplosive or incendiary device or substance\u201d limited to section); N.C. Gen. Stat. \u00a7 14-288.20(a)(3) (2007) (term \u201cexplosive or incendiary device\u201d limited to section). Therefore, absent a definition, it is unclear whether firearm ammunition of the type seized in this case qualifies as an \u201cexplosive device\u201d under the regular term of probation contained in N.C.G.S. \u00a7 15A-1343(b)(5). As a result, our analysis of legislative intent will be guided by principles of statutory construction set forth by our North Carolina Supreme Court. In re Banks, 295 N.C. 236, 239-40, 244 S.E.2d 386, 389 (1978).\nA. Statutory Construction\n\u201cIf the language of the statute is ambiguous or lacks precision, or is fairly susceptible of two or more meanings, the intended sense of it may be sought by the aid of all pertinent and admissible considerations.\u201d Abernethy v. Commissioners, 169 N.C. 631, 636, 86 S.E. 577, 580 (1915). Proper considerations include \u201cthe law as it existed at the time of its enactment, the public policy of the State as declared in judicial opinions and legislative acts, the public interest, and the purpose of the act.\u201d Kendall v. Stafford, 178 N.C. 461, 469, 101 S.E. 15, 16 (1919).\nRegarding criminal statutes in particular, our Supreme Court has held that the purpose of a statute will not:\nbe extended by implication so as to embrace cases not clearly within its meaning. If there be reasonable doubt arising as to whether the acts charged to have been done, are within its meaning, the party of whom the penalty is demanded is entitled to the benefit of that doubt. . . . [I]t must always be taken that penalties are imposed by the legislative authority only by clear and explicit enactments. That is, the purpose to impose the penalty must clearly appear. Such enactments . . . must be construed strictly together, but as well... in the light of reason.\nHines & Battle v. Wilmington & W. R. Co., 95 N.C. 434, 438 (1886) (emphasis added). Moreover, statutes should be sensibly rather than liberally construed, and their meaning kept within the limits of what the words themselves allow. Grocery Co. v. R. R., 170 N.C. 241, 243, 87 S.E. 57, 58 (1915). Because of these constrictions, where the existence of an omission by the legislature facilitates the exoneration of accused individuals, it is not the role of this Court to supply a remedy by \u201cresort[ing] to strained constructions of criminal statutes.\u201d State v. Massey, 103 N.C. 356, 360, 9 S.E. 632, 633 (1889).\nB. History of the Regular Conditions of Probation\nThe House Committee on Courts and Administration of Justice (the Committee) first considered the contents of what later became the current form of N.C.G.S. \u00a7 15A-1343(b)(5) in 1983. H. Comm, on Courts and Admin, of Justice, Meeting Minutes at 1 (N.C. Apr. 12, 1983)[Meeting], House Bill 455, otherwise titled \u201cAn Act to Establish Uniform Regular and Special Conditions of Probation,\u201d was proposed as part of a comprehensive effort by the Courts Commission (the Commission) to increase consistency, efficiency, and predictability in the North Carolina court system. Report of the Courts Comm, to the N.C. Gen. Assembly (1983). Among other reforms, the purpose of the legislation was to provide to the trial court a set of regular conditions to be routinely imposed and a set of special conditions to be discretionarily imposed. Id. at 29.\nOne of the regular conditions proposed by the Commission and adopted into the first draft of H.B. 455 specified:\n[a]s [a] regular condition[] of probation, a defendant must:... (6) [pjossess no firearm, destructive device or other dangerous weapon without the written permission of the court.\nReport, supra, at App. K. At a meeting held on 12 April 1983, the Committee sent this condition along with the rest of H.B. 455 to the University of North Carolina Institute of Government (the IOG) for further study. Meeting, supra, at 2.\nOn 25 April 1983, the IOG sent its recommendations back to the Committee, and proposed that the regular condition in issue be revised to state that defendant must \u201c[p]ossess no firearm, explosive device or other deadly weapon listed in G.S. 14-269 without the written permission of the court.\u201d Memorandum from Jim Drennan, Institute of Government, to Robert Hunter, N.C. House Representative (Apr. 25, 1983) (on file with the Legislative Library of the N.C. General Assembly). In explaining why the language of this particular condition was changed, the IOG stated plainly: \u201c[t]he regular condition prohibiting possession of weapons is rewritten to provide greater clarity[.]\u201d Id. at 1 (emphasis added).\nIn May 1983, the IOG\u2019s version of H.B. 455 was adopted in its entirety by the Committee. H. Comm, on Courts and Admin, of Justice, Meeting Minutes at 1 (N.C. May 3, 1983). Thereafter, the bill successfully navigated the labyrinth of the legislative process while retaining the exact language of the weapons provision proposed by the IOG, which remains the language at issue in this case. See N.C. Gen. Stat. \u00a7 15A-1343(b)(5) (2007).\nC. Analysis\nWhile the characterizations of the IOG, the Commission, and the Committee are hardly dispostive or binding on this Court, their comments nevertheless provide much needed historical context to the creation of N.C.G.S. \u00a7 15A-1343(b)(5). Specifically, it may reasonably be explicated from the legislative history that, from its inception to codification, the section in question was not meant to include anything outside the category of \u201cweapons.\u201d While we realize that reasonable minds may infer the section to include only \u201cdeadly weapons\u201d in light of the surrounding terms \u201cfirearm\u201d and \u201cother deadly weapon listed in G.S. 14-269,\u201d we choose to apply a lower threshold for this analysis.\nAs apparent from the language proposed by the IOG, the purpose of N.C.G.S. \u00a7 15A-1343(b)(5) was not to include every type of weapon capable of creating some risk of harm. To the contrary, the language was narrowed to provide greater specificity as to what types of weapons would provoke the trial court\u2019s intervention in response to a probationer\u2019s offense. Accordingly, we similarly limit the term \u201cexplosive device\u201d to include only those objects which may reasonably be interpreted as a \u201cweapon\u201d in and of themselves.\nThe term \u201cweapon\u201d is also not defined in Chapter 15A, and is subject to different interpretations within our statutes as well. Cf. N.C. Gen. Stat. \u00a7 14-269.2(a)(4) (2007) (bullets excluded from enumerated list of weapons); N.C. Gen. Stat. \u00a7 14-315(a) (2007) (\u201cpistol cartridge\u201d listed as weapon if sold to minor). However, \u201cweapon\u201d is generally defined as either \u201c[a]n instrument of attack or defense in combat, as a gun or sword,\u201d The American Heritage Dictionary 1528 (3d ed. 1997), or \u201can instrument of offensive or defensive combat[;] something to fight with[;] something (as a club, sword, gun, or grenade) used in destroying, defeating, or physically injuring an enemy.\u201d Webster\u2019s Third New International Dictionary Unabridged 2589 (1993). Therefore, we conclude that firearm ammunition, absent a means to discharge it, does not qualify as a \u201cweapon.\u201d Applying this limitation to N.C.G.S. \u00a7 15A-1343(b)(5), we similarly conclude that bullets in themselves are not included within the term \u201cexplosive device.\u201d\nIn this case, neither the history nor the actual language of N.C.G.S. \u00a7 15A-1343(b)(5) require us to include bullets within the definition of \u201cexplosive device,\u201d and it is not the role of this Court to contemplate creative scenarios by which firearm ammunition alone may somehow be used as a \u201cweapon\u201d within these definitions. Massey, 103 N.C. at 360, 9 S.E. at 633. Rather, we are bound by precedent to sensibly construe terms to remain within their meaning, and to resolve ambiguity in criminal statutes in favor of the defendant. Grocery Co., 170 N.C. at 243, 87 S.E. at 58; Hines & Battle, 95 N.C. at 438.\nDefendant argues that firearm ammunition does not qualify as an \u201cexplosive device\u201d as the term is defined in North Carolina General Statutes sections 14-50.1, 14-72, and 14-288.20. Though perhaps this is a tempting approach to the issue, the General Assembly has nevertheless limited the scope of these definitions to their respective articles and sections. Because our holding is able to rest on the statute at issue, we decline to apply these sections outside the ambit of their stated purpose.\nBased on the foregoing, we hold firearm ammunition does not qualify as an \u201cexplosive device\u201d under N.C.G.S. \u00a7 15A-1343(b)(5), and conclude that the trial court erred in finding defendant in possession of an \u201cexplosive device\u201d and revoking his probation as a result. Accordingly, the judgment is reversed.\nREVERSED.\nJudges WYNN and JACKSON concur.\n. The Institute of Government, established in 1931 to provide support to North Carolina\u2019s state and local governments, became part of the University of North Carolina in 1942, and was subsumed into the U.N.C. School of Government in 2001. The 75th Anniversary of the School of Government, http://www.sog.unc.edu/75/index.htm.\n. \u201c \u2018[E]xplosive or incendiary device or material\u2019 means nitroglycerine, dynamite, gunpowder, other high explosive, incendiary bomb or grenade, ... or any other destructive incendiary or explosive device .. . used for destructive explosive or incendiary purposes against persons or property, when . . . some probability [exists] that such instrument. .. will be so used].]\u201d N.C.G.S. \u00a7 14-50.1.\n. \u201c \u2018[E]xplosive or incendiary device or substance\u2019 shall include any explosive or incendiary grenade or bomb; any dynamite, blasting powder, nitroglycerin, TNT, or other high explosive; or any device, ... or quantity of substance primarily useful for large-scale destruction of property].]\u201d N.C.G.S. \u00a7 14-72(b)(3).\n. \u201c '[EJxplosive or incendiary device\u2019 means (i) dynamite and all other forms of high explosives, (ii) any explosive bomb, grenade, missile, or similar device, and (iii) any incendiary bomb or grenade, fire bomb, or similar device].]\u201d N.C.G.S. \u00a7 14-288.20(a)(3).",
        "type": "majority",
        "author": "BRYANT, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Thomas M. Woodward, for the State.",
      "Michelle FormyDuval Lynch for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JAMEL SHERROD, Defendant\nNo. COA07-1071\n(Filed 5 August 2008)\nProbation and Parole\u2014 revocation \u2014 possession of explosive device \u2014 firearm ammunition\nThe trial court erred by revoking defendant\u2019s probation for being in possession of an explosive device because: (I) firearm ammunition alone, absent a means to discharge it, is not an explosive device under N.C.G.S. \u00a7 15A-1343(b)(5); and (2) the term \u201cexplosive device\u201d under N.C.G.S. \u00a7 15A-1343(b)(5) includes only those objects which may reasonably be interpreted as weapons in and of themselves.\nAppeal by defendant from judgment dated 6 March 2007 by Judge Jerry Braswell in Wayne County Superior Court. Heard in the Court of Appeals 4 March 2008.\nAttorney General Roy Cooper, by Assistant Attorney General Thomas M. Woodward, for the State.\nMichelle FormyDuval Lynch for defendant-appellant."
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