{ "id": 4174198, "name": "STATE OF NORTH CAROLINA v. DANIEL DAVID WEST, Defendant", "name_abbreviation": "State v. West", "decision_date": "2010-02-16", "docket_number": "No. COA09-851", "first_page": "479", "last_page": "490", "citations": [ { "type": "official", "cite": "202 N.C. App. 479" } ], "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": "665 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641744 ], "year": 2008, "pin_cites": [ { "page": "477", "parenthetical": "\"[Djefendant failed to object at trial and has not specifically argued that the trial court committed plain error. Under such circumstances, this Court will not review whether the alleged error rises to the level of plain error.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/665/0471-01" ] }, { "cite": "657 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640450 ], "year": 2008, "pin_cites": [ { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0361-01" ] }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "654" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "70" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "376 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "748" } ], "opinion_index": 0 }, { "cite": "324 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486024 ], "year": 1989, "pin_cites": [ { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0190-01" ] }, { "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": "354 S.E.2d 486", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "490", "parenthetical": "quoting United States v. Brown, 333 U.S. 18, 25-26, 92 L. Ed. 442, 448 (1948)" } ], "opinion_index": 0 }, { "cite": "319 N.C. 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749394 ], "year": 1987, "pin_cites": [ { "page": "263", "parenthetical": "quoting United States v. Brown, 333 U.S. 18, 25-26, 92 L. Ed. 442, 448 (1948)" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0258-01" ] }, { "cite": "677 S.E.2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "451", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "363 N.C. 322", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151610 ], "year": 2009, "pin_cites": [ { "page": "332", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0322-01" ] }, { "cite": "567 S.E.2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "128" } ], "opinion_index": 0 }, { "cite": "356 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511319 ], "year": 2002, "pin_cites": [ { "page": "136" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0132-01" ] }, { "cite": "3 S.E. 683", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1887, "pin_cites": [ { "page": "686", "parenthetical": "holding that statute referring to \"person\" included \"persons\"" } ], "opinion_index": 0 }, { "cite": "98 N.C. 696", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276074 ], "year": 1887, "pin_cites": [ { "page": "701", "parenthetical": "holding that statute referring to \"person\" included \"persons\"" } ], "opinion_index": 0, "case_paths": [ "/nc/98/0696-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 12-3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2009, "pin_cites": [ { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "388 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "136-37" } ], "opinion_index": 0 }, { "cite": "326 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307411 ], "year": 1990, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0205-01" ] }, { "cite": "367 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "658" } ], "opinion_index": 0 }, { "cite": "322 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516033 ], "year": 1988, "pin_cites": [ { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0271-01" ] }, { "cite": "507 S.E.2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "895" } ], "opinion_index": 0 }, { "cite": "349 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571692 ], "year": 1998, "pin_cites": [ { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0520-01" ] }, { "cite": "407 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "227" } ], "opinion_index": 0 }, { "cite": "329 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553288 ], "year": 1991, "pin_cites": [ { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0330-01" ] }, { "cite": "152 L. Ed. 2d 381", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "535 U.S. 971", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 354467, 355206, 354599, 352300, 354733, 355215, 354608, 353457, 353364, 351830, 352184, 353755 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/535/0971-12", "/us/535/0971-05", "/us/535/0971-09", "/us/535/0971-01", "/us/535/0971-07", "/us/535/0971-04", "/us/535/0971-10", "/us/535/0971-08", "/us/535/0971-03", "/us/535/0971-11", "/us/535/0971-02", "/us/535/0971-06" ] }, { "cite": "554 S.E.2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "332" } ], "opinion_index": 0 }, { "cite": "354 N.C. 336", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138423 ], "year": 2001, "pin_cites": [ { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0336-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "117" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "573 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "889" } ], "opinion_index": 0 }, { "cite": "356 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511417 ], "year": 2002, "pin_cites": [ { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0446-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "573 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "868" } ], "opinion_index": 0 }, { "cite": "356 N.C. 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511364 ], "year": 2002, "pin_cites": [ { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0591-01" ] }, { "cite": "293 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "125" } ], "opinion_index": 0 }, { "cite": "306 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568285 ], "year": 1982, "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0288-01" ] }, { "cite": "440 S.E.2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "785", "parenthetical": "finding no error in admitting hearsay testimony of one witness when subsequent witness provided similar testimony" } ], "opinion_index": 0 }, { "cite": "335 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531405 ], "year": 1994, "pin_cites": [ { "page": "663", "parenthetical": "finding no error in admitting hearsay testimony of one witness when subsequent witness provided similar testimony" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0647-01" ] }, { "cite": "520 S.E.2d 113", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "116", "parenthetical": "\"Opinion testimony may be received regarding the underlying factual premise, which the fact finder must consider in determining the legal conclusion to be drawn therefrom, but may not be offered as to whether the legal conclusion should be drawn.\"" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 288", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240350 ], "year": 1999, "pin_cites": [ { "page": "292", "parenthetical": "\"Opinion testimony may be received regarding the underlying factual premise, which the fact finder must consider in determining the legal conclusion to be drawn therefrom, but may not be offered as to whether the legal conclusion should be drawn.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0288-01" ] }, { "cite": "340 S.E.2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "321" } ], "opinion_index": 0 }, { "cite": "315 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715465 ], "year": 1986, "pin_cites": [ { "page": "617" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0599-01" ] }, { "cite": "99 L. Ed. 2d 912", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "opinion_index": 0 }, { "cite": "485 U.S. 1036", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 13312, 13445, 13287, 13545, 13740, 13965, 13233, 14131, 13397, 13238, 13399, 13750, 13849, 13725 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/485/1036-05", "/us/485/1036-12", "/us/485/1036-11", "/us/485/1036-04", "/us/485/1036-06", "/us/485/1036-14", "/us/485/1036-08", "/us/485/1036-10", "/us/485/1036-01", "/us/485/1036-02", "/us/485/1036-13", "/us/485/1036-03", "/us/485/1036-09", "/us/485/1036-07" ] }, { "cite": "362 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "251" } ], "opinion_index": 0 }, { "cite": "321 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569839 ], "year": 1987, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0201-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "686 S.E.2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "509" } ], "opinion_index": 0 }, { "cite": "346 S.E.2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "644", "parenthetical": "quoting 1 Brandis on North Carolina Evidence \u00a7 30 (1982)" }, { "parenthetical": "holding witness' testimony during cross-examination waived defendant's objection to same testimony on direct examination" }, { "page": "644", "parenthetical": "holding defendant waived objection to challenged testimony on direct-examination when \"defense counsel, on cross-examination, elicited the same testimony to which no objection was made\"" } ], "opinion_index": 0 }, { "cite": "317 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4772035 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "599", "parenthetical": "quoting 1 Brandis on North Carolina Evidence \u00a7 30 (1982)" }, { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0590-01" ] }, { "cite": "676 S.E.2d 49", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "191 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160151 ], "year": 2008, "pin_cites": [ { "page": "471", "parenthetical": "\"[Djefendant failed to object at trial and has not specifically argued that the trial court committed plain error. Under such circumstances, this Court will not review whether the alleged error rises to the level of plain error.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0462-01" ] }, { "cite": "362 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149183 ], "year": 2008, "pin_cites": [ { "page": "195-96" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0191-01" ] } ], "analysis": { "cardinality": 1063, "char_count": 26168, "ocr_confidence": 0.75, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13680758994057182 }, "sha256": "b2b4a5631f4dae63abf9bfd95b234f24bb5a8a8477fcb8d73433f4a72453ed5e", "simhash": "1:8e6bb02ccb5e9478", "word_count": 4198 }, "last_updated": "2023-07-14T21:18:34.741992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge ERVIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DANIEL DAVID WEST, Defendant" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nDefendant Daniel David West appeals his conviction for performing a notarial act without a commission. Defendant primarily contends that a violation of the pertinent statute requires multiple unauthorized \u201cnotarial acts.\u201d Because the State\u2019s evidence tends to show only a single unauthorized notarial act, defendant claims that the trial court erred in failing to dismiss the charge. Guided by our rules of statutory interpretation, we conclude that a violation of the statute requires only a single unauthorized notarial act, and, therefore, the trial court properly submitted the charge to the jury. Accordingly, we find no error.\nFacts\nThe State\u2019s evidence at trial tended to establish the following facts: On 4 April 2008, Andrew F. Romagnuolo, a special agent with the FBI, was at home with his family when his doorbell rang. Romagnuolo went to the door and saw John Leroy McKinley, an individual who was under investigation by Romagnuolo. Romagnuolo asked McKinley what he was doing at his home, and when McKinley did not respond, Romagnuolo asked McKinley to leave his property. Concerned by McKinley\u2019s presence at his home, he grabbed McKinley\u2019s arm and began to force him off the front porch of the house. At this point, McKinley dropped a package, which contained a lawsuit against Romagnuolo, said \u201c \u2018[y]ou are served,\u2019 \u201d and began walking away. As McKinley was walking away, Romagnuolo picked up the package and threw it at him, hitting him in the back of the head.\nMcKinley went to the Buncombe County Sheriff\u2019s Department on 7 April 2008 and complained that he had been assaulted by Romagnuolo on 4 April 2008. McKinley provided the deputies with an affidavit that had been acknowledged by defendant (\u201cMcKinley affidavit\u201d). The affidavit contained defendant\u2019s name, signature, and a seal indicating that defendant was a \u201ccounty notary.\u201d McKinley was interviewed about his complaint and an incident report was prepared, but no charges were filed against Romagnuolo.\nCody Muse, a detective with the sheriff\u2019s department and Romagnuolo\u2019s partner on the North Carolina Joint Terrorism Task Force, investigated the incident involving Romagnuolo and McKinley. While reviewing the documentation relating to the incident, Muse became concerned that the McKinley affidavit was not notarized in accordance with North Carolina law. A search warrant for defendant\u2019s house was obtained and executed, during which Muse found a mechanical embossing seal matching the seal on the McKinley affidavit. Defendant was subsequently charged with performing notarial acts without being a commissioned notary.\nIn addition to other witnesses who testified at trial, Gayle Holder, the Director of the Certification and Filing Division of the Secretary of State\u2019s Office, testified that North Carolina law does not recognize the office of \u201ccounty notary\u201d \u2014 only the office of \u201cnotary public.\u201d She further stated that defendant had never been commissioned as a notary public in North Carolina and that the seal and language used in the acknowledgment of the McKinley affidavit did not comply with North Carolina law. The State also produced DMV records showing defendant\u2019s photograph and his signature, which matched the signature on the McKinley affidavit.\nAt the close of the State\u2019s evidence and after electing not to present any evidence in his defense, defendant moved to dismiss the charge for insufficient evidence. The trial court denied the motions and submitted the charge to the jury. The jury convicted defendant and the court sentenced defendant to four to five months imprisonment but suspended the sentence and imposed 36 months of supervised probation. Defendant timely appealed to this Court.\nI\nDefendant first assigns error to the trial court\u2019s admission of statements by Romagnuolo that (1) he was a member of the North Carolina Joint Terrorism Task Force; (2) defendant was a subject of an on-going FBI investigation; and (3) lawsuits involving cease and desist injunctions against law enforcement investigations are, based on his experience, \u201cfraudulent and meant to impede or harass to stop an investigation.\u201d Defendant maintains that Romagnuolo\u2019s statements were irrelevant and prejudicial.\nAs for Romagnuolo\u2019s first statement, that he was a member of the North Carolina Joint Terrorism Task Force, defendant argues that it is \u201cobviously irrelevant to the prosecution of the defendant for the offense of performing notarial acts without being commissioned as a notary.\u201d Defendant, however, did not object to Romagnuolo\u2019s statement at trial on any basis, much less relevancy. Defendant, therefore, failed to preserve this specific contention for appellate review. N.C. R. App. P. 10(b)(1); Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 195-96, 657 S.E.2d 361, 364 (2008). Nor has defendant specifically argued that the trial court committed plain error. Accordingly, we decline to review defendant\u2019s argument. See State v. Martin, 191 N.C. App. 462, 471, 665 S.E.2d 471, 477 (2008) (\u201c[Djefendant failed to object at trial and has not specifically argued that the trial court committed plain error. Under such circumstances, this Court will not review whether the alleged error rises to the level of plain error.\u201d), disc. review denied,-N.C.-, 676 S.E.2d 49 (2009).\nDefendant did object at trial to Romagnuolo\u2019s statement during direct-examination that defendant was a subject of an on-going FBI investigation. On cross-examination, however, defense counsel elicited the same testimony from Romagnuolo:\nQ. And did you also say that Mr. West was the subject of an investigation that you are doing?\nA. That\u2019s correct.\n\u201cIt is a well-settled rule that \u2018if a party objects to the admission of certain evidence and the same or like evidence is later admitted without objection, the party has waived the objection to the earlier evidence.\u2019 \u201d State v. Wingard, 317 N.C. 590, 599, 346 S.E.2d 638, 644 (1986) (quoting 1 Brandis on North Carolina Evidence \u00a7 30 (1982)). Defendant, therefore, waived his objection to the admission of the challenged testimony. See id. (holding witness\u2019 testimony during cross-examination waived defendant\u2019s objection to same testimony on direct examination).\nAs for defendant\u2019s assignment of error concerning Romagnuolo\u2019s statement about the cease-and-desist lawsuit, defendant makes absolutely no argument in his brief challenging the admissibility of this testimony. This assignment of error is thus deemed abandoned on appeal. N.C. R. App. P. 28(b)(6); State v. Williams,-N.C. -, -, 686 S.E.2d 493, 509 (2009). We have nonetheless reviewed the record on appeal and conclude that defendant\u2019s assignment of error is without merit.\nII\nDefendant next contends that the trial court erred in admitting testimony by Holder, Muse, and Romagnuolo that \u201cdefendant\u2019s actions were not legal\u201d and that \u201ccertain legal standards had [not] been met.\u201d Because defendant failed to object to the pertinent testimony at trial, his argument is subject to plain error review. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). Plain error is error \u201cso fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.\u201d State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988).\nUnder the Rules of Evidence, a witness, whether an expert or lay witness, \u201cmay not testify that a particular legal conclusion or standard has or has not been met, at least where the standard is a legal term of art which carries a specific legal meaning not readily apparent to the witness.\u201d State v. Ledford, 315 N.C. 599, 617, 340 S.E.2d 309, 321 (1986); accord Norris v. Zambito, 135 N.C. App. 288, 292, 520 S.E.2d 113, 116 (1999) (\u201cOpinion testimony may be received regarding the underlying factual premise, which the fact finder must consider in determining the legal conclusion to be drawn therefrom, but may not be offered as to whether the legal conclusion should be drawn.\u201d).\nHolder testified on direct-examination that the signature on the McKinley affidavit\u2019s acknowledgment, the language in the acknowledgment, and the \u201ccounty notary\u201d seal affixed to the affidavit did not \u201cmeet the North Carolina requirements to be a legal notarial act.\u201d Although defendant contends that \u201cMs. Holder should not have been allowed to give her own opinion that the defendant\u2019s conduct amounted to a notarial act,\u201d defendant ignores the fact that on cross-examination, defense counsel questioned Holder extensively regarding the same \u201crequirements to a valid notary or a valid notarial act[.]\u201d In fact, defense counsel elicited testimony from Holder that the \u201ccounty notary\u201d seal appearing on the McKinley affidavit did not meet the requirements for a proper notarial act and that \u201cthe signature and the seal has no legal effectf.]\u201d Defense counsel further inquired: \u201cNow these words acknowledgement [sic], oath and affirmation and proof, these are all magic words in the law; aren\u2019t they?\u201d In response, Holder explained the meaning of these \u201clegal terms.\u201d\nDefense counsel elicited on cross-examination the same testimony from Holder regarding the legal requirements necessary to constitute a valid notarial act that defendant claims was impermissible on direct-examination. Eliciting this testimony on cross-examination constituted waiver of defendant\u2019s challenge to its admission on direct-examination. See Wingard, 317 N.C. at 599, 346 S.E.2d at 644 (holding defendant waived objection to challenged testimony on direct-examination when \u201cdefense counsel, on cross-examination, elicited the same testimony to which no objection was made\u201d).\nDefendant also assigns plain error to the admission of Muse\u2019s testimony that he noticed the \u201ccounty notary\u201d seal when he reviewed the McKinley affidavit and that, based on his \u201creview of the state statutes,\u201d he \u201cknew\u201d it was not a \u201cvalid seal[].\u201d In light of Holder\u2019s similar testimony, the trial court did not err, much less commit plain error, in admitting Muse\u2019s testimony. See State v. Reid, 335 N.C. 647, 663, 440 S.E.2d 776, 785 (1994) (finding no error in admitting hearsay testimony of one witness when subsequent witness provided similar testimony).\nDefendant also argues that Romagnuolo should not have been allowed to testify that, based on his experience, \u201cthese types of submissions\u201d- \u2014 referring to the cease and desist lawsuit \u2014 \u201care fraudulent and meant to impede or harass to stop an investigation.\u201d Review of the transcript reveals that defendant\u2019s argument is simply a reprise of his contention regarding the relevancy of Romagnuolo\u2019s testimony. Nowhere in his testimony does Romagnuolo offer any legal conclusion regarding the legal sufficiency of the McKinley acknowledgment.\nIll\nDefendant next argues that the trial court erred in failing to dismiss for insufficient evidence the charge of performing notarial acts without a commission. On appeal, the trial court\u2019s denial of a motion to dismiss for insufficient evidence is reviewed de novo. State v. McKinnon, 306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982). A defendant\u2019s motion to dismiss should be denied if there is substantial evidence: (1) of each essential element of the offense charged and (2) of defendant\u2019s being the perpetrator of the offense. State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). \u201cIn ruling on a motion to dismiss, the trial court is required to view the evidence in the light most favorable to the State, making all reasonable inferences from the evidence in favor of the State.\u201d State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002). Contradictions and discrepancies do not warrant dismissal but are for the jury to resolve. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).\nN.C. Gen. Stat. \u00a7 10B-60(e) (2009) makes it unlawful \u201cfor any person to perform notarial acts in this State with the knowledge that the person is not commissioned under this Chapter.\u201d (Emphasis added.) N.C. Gen. Stat. \u00a7 10B-3(11) (2009) lists the \u201cnotarial acts\u201d a notary public is \u201cempowered to perform\u201d under Chapter 10B of the General Statutes: (1) \u201ctaking an acknowledgment\u201d; (2) \u201ctaking a verification or proof\u2019; and (3) \u201cadministering an oath or affirmation[.]\u201d See also N.C. Gen. Stat. \u00a7 10B-20(a) (2009) (providing that a notary may perform \u201c[a]cknowledgments,\u201d \u201c[ojaths and affirmations,\u201d and \u201c[verifications or proofs\u201d). Defendant argues that because \u00a7 10B-60(e) prohibits \u201cnotarial acts\u201d rather than a single notarial act, the State is required to \u201cprove a defendant performed the functions of a notary on more than one occasion.\u201d Based on this reading of the statute, defendant maintains that, \u201ctaken in the light most favorable to the State, the evidence shows only a single notarial act, i.e., the acknowledgement [sic] by the defendant of a signature on the McKinley affidavit.\u201d\nThe State counters that defendant\u2019s \u201ctortured\u201d interpretation of \u00a7 10B-60(e) leads to the illogical conclusion that so long as a person commits only a single notarial act knowing that he or she is not a commissioned notary, that person has not violated \u00a7 10B-60(e). The State argues that the General Assembly could not have intended to allow \u201cone \u2018free\u2019 offense\u201d of \u00a7 10B-60(e).\nQuestions of statutory interpretation are questions of law, reviewed de novo on appeal. Piedmont Triad Airport Auth. v. Urbine, 354 N.C. 336, 338, 554 S.E.2d 331, 332 (2001), cert. denied, 535 U.S. 971, 152 L. Ed. 2d 381 (2002). The primary goal of statutory interpretation is to ascertain and effectuate the intent of the legislature. Woodson v. Rowland, 329 N.C. 330, 338, 407 S.E.2d 222, 227 (1991). In determining legislative intent, \u201ca court must analyze the statute as a whole, considering the chosen words themselves, the spirit of the act, and the objectives the statute seeks to accomplish.\u201d Brown v. Flowe, 349 N.C. 520, 522, 507 S.E.2d 894, 895 (1998). Where \u201cthe language of a statute is clear and unambiguous, there is no room for judicial construction, and the courts must give [the statute] its plain and definite meaning.\u201d Lemons v. Old Hickory Council, 322 N.C. 271, 276, 367 S.E.2d 655, 658 (1988). Where, however, the statutory language is ambiguous, judicial construction is necessary to determine legislative intent. Burgess v. Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 136-37 (1990).\nThe Legislature established rules for interpreting our statutes in N.C. Gen. Stat. \u00a7 12-3 (2009), which provides in pertinent part:\nIn the construction of all statutes the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the General Assembly, or repugnant to the context of the same statute, that is to say:\n(1) Singular and Plural Number, Masculine Gender, etc.\u2014 Every word importing the singular number only shall extend and be applied to several persons or things, as well as to one person or thing; and every word importing the plural number only shall extend and be applied to one person or thing, as well as to several persons or things[.]\nN.C. Gen. Stat. \u00a7 12-3(1). As mandated by \u00a7 12-3(1), we interpret \u00a7 10B-60(e) to mean that a person violates the statute if the person performs one or more notarial acts with the knowledge that he or she is not a commissioned notary. See State v. Wilkerson, 98 N.C. 696, 701, 3 S.E. 683, 686 (1887) (holding that statute referring to \u201cperson\u201d included \u201cpersons\u201d).\nArguing that it would be \u201crepugnant to the overall context of the statutory scheme regulating notaries public\u201d to construe \u00a7 10B-60(e) as permitting only a single notarial act to constitute a violation, defendant points to N.C. Gen. Stat. \u00a7 10B-60(b), which provides in pertinent part:\n[A] person who commits any of the following acts is guilty of a Class 1 misdemeanor:\n(2) Performing a notarial act if the person\u2019s commission has expired or been suspended or restricted.\n(3) Performing a notarial act before the person had taken the oath of office.\nN.C. Gen. Stat. \u00a7 10B-60(b)(2)-(3). Because \u00a7 10B-60(b)(2) and (3) refer to a \u201cnotarial act\u201d rather than to \u201cnotarial acts,\u201d as used in \u00a7 10B-60(e), defendant asserts that the two terms cannot be read interchangeably.\nRather than supporting defendant\u2019s contention, \u00a7 10B-60(b)(2) and (3) undermine defendant\u2019s interpretation of \u00a7 10B-60(e). Both \u00a7 10B-60(b)(2) and (3) address situations where the person performing the notarial act has been or potentially will be commissioned as a notary public, but neither provides for the scenario where the person is not an appointee or has never been commissioned as a notary. Thus, following defendant\u2019s argument to its logical conclusion, a person may perform a single notarial act without violating \u00a7 10B-60(b) or \u00a7 10B-60(e) so long as the person has never been a notary or an appointee. We do not believe that the General Assembly intended to create such a problematic gap in the statutory scheme governing notaries public.\nReview of other provisions in Chapter 10B further illustrate the flaw in defendant\u2019s reasoning. N.C. Gen. Stat. \u00a7 10B-3(4), for example, defines the term \u201c[c]ommission\u201d as the \u201c[t]he empowerment to perform notarial acts and the written evidence of authority to perform those acts.\u201d If, as defendant urges, the reference to \u201cnotarial acts\u201d in \u00a7 10B-3(4) denotes only multiple acts, then a person may perform a notarial act without a commission so long as the person only performs one act.\nMoreover, adopting defendant\u2019s interpretation leads to untoward consequences undermining the stated purposes of Chapter 10B. N.C. Gen. Stat. \u00a7 10B-2 (2009) provides that, among other things, the purposes of Chapter 10B are \u201c[t]o promote, serve, and protect the public interests\u201d; \u201c[t]o simplify, clarify, and modernize the law governing notaries\u201d; and \u201c[t]o prevent fraud and forgery.\u201d In light of these purposes, it is unreasonable to read \u00a7 10B-60(e) as permitting non-commissioned members of the public to perform a notarial act so long as they do it only once. We, therefore, conclude that a person may be convicted of violating \u00a7 10B-60(e) if that person commits one or more notarial acts with the knowledge that he or she is not a commissioned notary.\nDefendant nonetheless argues that pursuant to the \u201crule of leniency,\u201d \u00a7 10B-60(e) must be construed liberally in his favor. Defendant is correct that criminal statutes are to be strictly construed against the State. State v. Hearst, 356 N.C. 132, 136, 567 S.E.2d 124, 128 (2002). The \u201crule of leniency,\u201d however, only requires the court to \u201cstrictly construe ambiguous criminal statutes.\u201d State v. Abshire, 363 N.C. 322, 332, 677 S.E.2d 444, 451 (2009) (emphasis added). Defendant points to no ambiguity in \u00a7 10B-60(e); in fact, defendant\u2019s argument hinges upon a strictly literal interpretation of \u00a7 10B-60(e). Interpreting \u00a7 10B-60(e)\u2019s reference to \u201cnotarial acts\u201d in conjunction with \u00a7 12-3(l)\u2019s directive that plural words are to be understood as encompassing both the plural and singular meaning of the word indicates that \u00a7 10B-60(e) is not ambiguous. Moreover, even assuming that \u00a7 10B-60(e) is ambiguous,\n\u201c \u2018[t]he canon in favor of strict construction [of criminal statutes] is not an inexorable command to override common sense and evident statutory purpose. . . . Nor does it demand that a statute be given the \u201cnarrowest meaning\u201d; it is satisfied if the words are given their fair meaning in accord with the manifest intent of the lawmakers.\u2019 \u201d\nState v. Raines, 319 N.C. 258, 263, 354 S.E.2d 486, 490 (1987) (quoting United States v. Brown, 333 U.S. 18, 25-26, 92 L. Ed. 442, 448 (1948)) (first alteration added). Interpreting \u00a7 10B-60(e) to require multiple notarial acts in order to constitute a violation would require ignoring the General Assembly\u2019s mandate in \u00a7 12-3(1) regarding the interpretation of this State\u2019s statutes and would require \u201coverrid[ing] common sense and [the] evident statutory purpose[s]\u201d of protecting the public, simplifying the law, and preventing fraud.\nAs for the sufficiency of the evidence in this case, defendant admits in his appellate brief that the evidence showed \u201ca single notarial act, i.e., the acknowldgement [sic] by the defendant of a signature on the McKinley affidavit.\u201d The State\u2019s evidence tended to show that defendant was in possession of a \u201ccounty notary\u201d seal, that the county notary seal in defendant\u2019s possession matched the seal affixed to the McKinley affidavit, that the signature purportedly acknowledging the affidavit matched defendant\u2019s signature in DMV records, and that defendant is not commissioned as a notary by the Secretary of State\u2019s Office. From this evidence, the jury could reasonably conclude that defendant performed a notarial act knowing that he was not a commissioned notary in violation of \u00a7 10B-60(e). The trial court, therefore, properly denied defendant\u2019s motion to dismiss.\nIV\nBased on his argument that in order to violate \u00a7 10B-60(e), a person must commit at least two unauthorized notarial acts, defendant contends that the trial court erroneously instructed the jury \u201cin the singular\u201d: \u201c[I]f the State has satisfied you beyond a reasonable doubt that on or about the alleged date the defendant performed an act of a notary public when he knew he did not have a notary public certificate from the State, and in fact he had no such certificate, it would be your duty to find the defendant guilty of this charge.\u201d (Emphasis added.)\n\u201cA trial judge is required by N.C.G.S. \u00a7 15A-1231 and N.C.G.S. \u00a7 15A-1232 to instruct the jury on the law arising on the evidence.\u201d State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989). When the trial court \u201cundertakes to define the law,\u201d the court \u201cmust state it correctly.\u201d State v. Earnhardt, 307 N.C. 62, 70, 296 S.E.2d 649, 654 (1982). As we have already held that a single notarial act performed by a defendant with knowledge that he or she was not a commissioned notary is sufficient to constitute a violation of \u00a7 10B-60(e), the trial court\u2019s instructions correctly define the law arising on the evidence in this case. Finding no error, we uphold defendant\u2019s conviction.\nNo Error.\nChief Judge MARTIN and Judge ERVIN concur.\n. An \u201cappointee\u201d is a person who has been granted a notary public commission by the Secretary of State\u2019s Office but who has not taken the oath of office. N.C. Gen. Stat. \u00a7 10B-10 (2009).", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Richard H. Bradford, for the State.", "David G. Belserfor defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DANIEL DAVID WEST, Defendant\nNo. COA09-851\n(Filed 16 February 2010)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to object \u2014 failure to argue\nAlthough defendant contends the trial court erred by admitting a witness\u2019s statement, this assignment of error was dismissed because defendant failed to object at trial and failed to argue plain error.\n2. Evidence\u2014 testimony \u2014 subject of ongoing FBI investigation \u2014 waiver of objection\nAlthough defendant contends the trial court erred by admitting a witness\u2019s statement that defendant was the subject of an on going FBI investigation, defendant elicited this same testimony on cross-examination and thus waived objection to the admission of the challenged testimony.\n3. Appeal and Error\u2014 preservation of issues \u2014 failure to argue\nAlthough defendant contends the trial court erred in a prosecution for performing a notarial act without a commission by admitting a witness\u2019s statement about a cease and desist lawsuit, this assignment of error was deemed abandoned under N.C. R. App. P. 28(b)(6) based on defendant\u2019s failure to argue it in his brief.\n4. Evidence\u2014 cross-examination \u2014 waiver of objection\nThe trial court did not commit plain error in a prosecution for performing a notarial act without a commission by admitting testimony from three witnesses that defendant\u2019s actions were not legal and that certain legal standards had not been met. Defense counsel elicited the same testimony on cross-examination, thus constituting waiver of defendant\u2019s challenge to its admission on direct examination.\n5. Evidence\u2014 testimony \u2014 invalid notary seal \u2014 similar testimony already allowed\nThe trial court did not err or commit plain error in a prosecution for performing a notarial act without a commission by admitting a witness\u2019s testimony that he noticed the \u201ccounty notary\u201d seal was not a valid seal. Another witness provided similar testimony.\n6. Evidence\u2014 testimony \u2014 cease and desist lawsuit \u2014 no legal conclusions offered\nThe trial court did not commit plain error in a prosecution for performing a notarial act without a commission by admitting a witness\u2019s testimony that the cease and desist lawsuit was fraudulent and meant to impede or stop an investigation. Nowhere in the testimony does the witness offer any legal conclusion regarding the legal sufficiency of the pertinent acknowledgment.\n7. Acknowledgments\u2014 performing notarial act without commission \u2014 motion to dismiss \u2014 sufficiency of evidence\u2014 single act\nThe trial court did not err by failing to dismiss the charge of performing a notarial act without a commission even though defendant contends a violation under N.C.G.S. \u00a7 10B-60(e) requires multiple unauthorized notarial acts. A violation of the statute requires only a single unauthorized notarial act.\n8. Acknowledgments\u2014 performing notarial act without commission \u2014 instruction\u2014single act\nThe trial court did not err in a prosecution for performing a notarial act without a commission by instructing the jury \u201cin the singular\u201d even though defendant contends a violation of N.C.G.S. \u00a7 10B-60(e) requires that a person commit at least two unauthorized notarial acts. The trial court\u2019s instruction correctly defined the law arising on the evidence.\nAppeal by defendant from judgment entered 17 December 2008 by Judge Dennis J. Winner in Buncombe County Superior Court. Heard in the Court of Appeals 11 January 2010.\nAttorney General Roy Cooper, by Assistant Attorney General Richard H. Bradford, for the State.\nDavid G. Belserfor defendant-appellant." }, "file_name": "0479-01", "first_page_order": 507, "last_page_order": 518 }