{ "id": 4132265, "name": "STATE OF NORTH CAROLINA v. KELVIN DEON WILSON", "name_abbreviation": "State v. Wilson", "decision_date": "2013-01-15", "docket_number": "No. COA12-641", "first_page": "246", "last_page": "252", "citations": [ { "type": "official", "cite": "225 N.C. App. 246" } ], "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": "644 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638316 ], "year": 2007, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/se2d/644/0235-01" ] }, { "cite": "572 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "102" } ], "opinion_index": 0 }, { "cite": "356 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511250 ], "year": 2002, "pin_cites": [ { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0415-01" ] }, { "cite": "607 S.E.2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "642", "parenthetical": "quoting Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002)" } ], "opinion_index": 0 }, { "cite": "359 N.C. 260", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3803266 ], "year": 2005, "pin_cites": [ { "page": "266", "parenthetical": "quoting Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002)" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0260-01" ] }, { "cite": "183 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8201251 ], "year": 2007, "pin_cites": [ { "page": "3" } ], "opinion_index": 0, "case_paths": [ "/nc-app/183/0001-01" ] }, { "cite": "385 S.E.2d 346", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "348", "parenthetical": "where defense counsel moved to dismiss criminal charges at trial because evidence against defendant was unconstitutionally obtained, defendant was actually challenging the admissibility of evidence on constitutional grounds, and \"[therefore, pursuant to G.S. sec. 15A-979(d" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 249", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521294 ], "year": 1989, "pin_cites": [ { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0249-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-138.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "723 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2012, "pin_cites": [ { "page": "339-40" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-139.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2011, "pin_cites": [ { "page": "(dl)" }, { "page": "(dl)" } ], "opinion_index": 0 }, { "cite": "732 S.E.2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "572" } ], "opinion_index": 0 }, { "cite": "715 S.E.2d 616", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-38.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2011, "opinion_index": 0 } ], "analysis": { "cardinality": 512, "char_count": 14616, "ocr_confidence": 0.752, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1333987039398822 }, "sha256": "3ecd5f14d8fd4dde6cc18ea7d1200f1f4401bae2bd2b8119fece161e76fbf1d3", "simhash": "1:8bab9336526a8da3", "word_count": 2314 }, "last_updated": "2023-07-14T19:12:03.865649+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and STEPHENS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KELVIN DEON WILSON" ], "opinions": [ { "text": "McCullough, Judge.\nThe State appeals from an order of the trial court dismissing defendant\u2019s charge of misdemeanor driving while impaired under N.C. Gen. Stat. \u00a7 15A-954(a)(l) (2011) for constitutional violations involved in the taking of defendant\u2019s blood for chemical analysis. Because the trial court erred in interpreting the dismissal statute at issue, and because the State has stipulated that the blood evidence would not be introduced at trial against defendant, we reverse the trial court\u2019s order dismissing the charge and remand the case to the trial court for further proceedings consistent with this opinion.\nI. Background\nOn 13 July 2010, defendant was charged with misdemeanor driving while impaired (\u201cDWI\u201d) and driving while license revoked (\u201cDWLR\u201d). Prior to being charged, defendant was' arrested by Corporal R. A. Necessary (\u201cCorporal Necessary\u201d) of the Winston-Salem Police Department, and Corporal Necessary detained defendant at the local hospital and compelled defendant\u2019s blood be drawn for chemical analysis.\nOn 21 January 2011, pursuant to N.C. Gen. Stat. \u00a7 20-38.6 (2011), defendant gave notice to the State of his intention to move the district court to dismiss the DWI charge pursuant to N.C. Gen. Stat: \u00a7 15A-954(a)(4). In the alternative, defendant asked the district court to suppress as evidence the results of chemical analysis testing performed on defendant\u2019s blood based on constitutional violations involved in Corporal Necessary\u2019s compelled blood draw. On 12 August 2011, pursuant to N.C. Gen. Stat. \u00a7 20-38.6, the district court preliminarily indicated its intention to suppress the blood evidence. The State then sought to appeal the district court\u2019s indication to suppress the blood evidence to superior court, but the State abandoned its appeal. Accordingly, the blood evidence was suppressed in district court. Defendant was found guilty of the misdemeanor DWI charge, and defendant pled guilty to the DWLR charge in district court.\nOn 30 September 2011, defendant appealed the DWI conviction to superior court for a trial de novo. Defendant again filed both a motion to dismiss the charge pursuant to N.C. Gen. Stat. \u00a7 15A-954(a)(4) and a motion to suppress the blood evidence for constitutional violations. On 3 January 2012, the superior court held a hearing on defendant\u2019s motions. At the hearing, the State informed the superior court that it had abandoned its appeal of the district court\u2019s order suppressing the blood evidence and contended to both the court and defense counsel that it would not seek to introduce the blood evidence at trial because of its decision not to pursue the appeal from the district court\u2019s suppression order. Accordingly, the State argued that defendant\u2019s motion to dismiss the charge should be denied and that the evidence should remain suppressed.\nFollowing the hearing, on 5 January 2012, the superior court orally announced its decision to allow defendant\u2019s motion to dismiss on constitutional grounds. Thereafter, on 10 January 2012, the State entered written notice of appeal from the trial court\u2019s dismissal order announced in open court on 5 January 2012. Subsequently, on 18 January 2012, the trial court entered its written order detailing findings of fact and conclusions of law and dismissing the DWI charge against defendant for constitutional violations. On 26 March 2012, the State again entered written notice of appeal from the trial court\u2019s written order entered 18 January 2012.\nII. Motion to Dismiss for Defective Notice of Anneal\nDefendant has filed with this Court a motion to dismiss the State\u2019s appeal, arguing the State\u2019s notice of appeal was untimely, thereby depriving this Court of jurisdiction to hear the appeal. In the present case, the trial court orally announced its order granting defendant\u2019s motion to dismiss the DWI charge in open court on 5 January 2012. On 10 January 2012, the State filed written notice of appeal from the trial court\u2019s oral order granting defendant\u2019s motion to dismiss. Thereafter, on 18 January 2012, the trial court entered a written order granting defendant\u2019s motion to dismiss the DWI charge. The State then entered a second written notice of appeal from the trial court\u2019s order on 26 March 2012. Defendant argues that because the State\u2019s first written notice of appeal was entered prior to the trial court\u2019s issuance of its written order, the notice of appeal was defective. Defendant further contends that the State\u2019s second written notice of appeal was entered more than fourteen days after the trial court\u2019s entry of its written order of dismissal. Accordingly, defendant argues that the State failed to give timely notice of appeal pursuant to Rule 4 of our Rules of Appellate Procedure.\nIn support of his argument for dismissal of the State\u2019s appeal, defendant relies on this Court\u2019s opinion in State v. Oates, _N.C. App._, 715 S.E.2d 616 (2011), in which this Court concluded that a notice of appeal entered by the State seven days after the trial court orally granted the defendant\u2019s pretrial motion to suppress in open court but prior to the trial court\u2019s entry of a corresponding written order of suppression was untimely. However, on 5 October 2012, our Supreme Court vacated this Court\u2019s decision in Oates, holding:\n[U]nder Rule 4 of the North Carolina Rules of Appellate Procedure and N.C.G.S. \u00a7 15A-1448, the window for the filing of a written notice of appeal in a criminal case opens on the date of rendition of the judgment or order and closes fourteen days after entry of the judgment or order.\nState v. Oates, _N.C._,_, 732 S.E.2d 571, 572 (2012). In the present case, the State\u2019s first written notice of appeal was entered during this window. Accordingly, the State\u2019s notice of appeal was timely, and defendant\u2019s motion to dismiss must be denied.\nIII. Dismissal of Charge\nIn the present case, the trial court concluded Corporal Necessary\u2019s actions in compelling defendant\u2019s blood be drawn were unreasonable under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Sections 18 and 19 of the North Carolina Constitution. The trial court further reasoned that N.C. Gen. Stat. \u00a7 20-139.1(dl) (2011), which provided the officer the authority to compel defendant\u2019s blood be drawn, was unconstitutional as applied to defendant under the facts and circumstances of this case. Accordingly, the trial court granted defendant\u2019s motion to dismiss under N.C. Gen. Stat. \u00a7 15A-954(a)(l). The State contends on appeal that the trial court erred in dismissing the DWI charge against defendant as a remedy for the alleged constitutional violations. We agree.\nOur Supreme Court has recently instructed that \u201c[a] trial court may grant a defendant\u2019s motion to dismiss under N.C.G.S \u00a7\u00a7 15A-954 or 15A-1227, or the State may enter \u2018an oral dismissal in open court\u2019 pursuant to N.C.G.S. \u00a7 15A-931.\u201d State v. Joe, _ N.C. _, _, 723 S.E.2d 339, 339-40 (2012). The only one of these three statutes applicable to the circumstances of the present case is N.C. Gen. Stat. \u00a7 15A-954, which provides in pertinent part:\n(a) The court on motion of the defendant must dismiss the charges stated in a criminal pleading if it determines that:\n(1) The statute alleged to have been violated is unconstitutional on its face or as applied to the defendant.\n(4) The defendant\u2019s constitutional rights have been flagrantly violated and there is such irreparable prejudice to the defendant\u2019s preparation of his case that there is no remedy but to dismiss the prosecution.\nId. \u00a7 15A-954(a)(l), (4).\nSection one of this statute, under which the trial court granted defendant\u2019s motion to dismiss in the present case, plainly concerns the statute under which a defendant is charged. Here, defendant was charged with misdemeanor DWI in violation of N.C. Gen. Stat. \u00a7 20-138.1. Accordingly, for the trial court to properly dismiss the charge pursuant to section one, the trial court must find and conclude that the misdemeanor DWI statute is unconstitutional as applied to defend-ant. However, the trial court made no such conclusion in the present case. Rather, the trial court\u2019s conclusion centers on N.C. Gen. Stat. \u00a7 20-139.1(dl), which the trial court concluded was violated by Corporal Necessary when the officer compelled defendant\u2019s blood be drawn in violation of constitutional provisions. The trial court\u2019s conclusion, therefore, does not support dismissal under section one of this statute. To the contrary, the trial court\u2019s conclusions that the officer\u2019s actions violated constitutional provisions expressly address the admissibility of the evidence seized as a result of the alleged unconstitutional State action.\nIn his motion to dismiss, defendant argued the officer\u2019s conduct flagrantly violated his constitutional rights \u201cand there is such irreparable prejudice to the defendant\u2019s preparation of his case that there is no remedy but to dismiss the prosecution.\u201d While defendant\u2019s motion addresses the alleged flagrant violation of his constitutional rights, his motion in no way details how there was irreparable damage to the preparation of his case as a result. Indeed, the trial court made no such finding or conclusion, and defendant has made no such argument on appeal. Thus, we fail to see how the alleged constitutional violation at issue here irreparably prejudiced the preparation of defendant\u2019s case, and section four of the dismissal statute likewise does not apply to the present case.\nAccordingly, there are no statutory grounds for dismissing defendant\u2019s DWI charge, and the trial court erred in granting defendant\u2019s motion to dismiss. Rather, the appropriate argument by defendant was for suppression of the evidence, and the only appropriate action by the trial court under the circumstances of the present case was to consider suppression of the evidence as the proper remedy if a constitutional violation was found. See State v. Golden, 96 N.C. App. 249, 252, 385 S.E.2d 346, 348 (1989) (where defense counsel moved to dismiss criminal charges at trial because evidence against defendant was unconstitutionally obtained, defendant was actually challenging the admissibility of evidence on constitutional grounds, and \u201c[therefore, pursuant to G.S. sec. 15A-979(d), defendant's exclusive method for doing this was a motion to suppress evidence\u201d).\nPursuant to N.C. Gen. Stat. \u00a7 15A-979(d) (2011), \u201c[a] motion to suppress evidence made pursuant to this Article is the exclusive method of challenging the admissibility of evidence upon the grounds specified in G.S. 15A-974.\u201d Id. N.C. Gen. Stat. \u00a7 15A-974(a)(l) (2011) specifically requires suppression of evidence if \u201c[i]ts exclusion is required by the Constitution of the United States or the Constitution of the State of North Carolina[.]\u201d Id. \u201cAt a hearing to resolve a defendant\u2019s motion to suppress, the State carries the burden to prove by a preponderance of the evidence that the challenged evidence is admissible.\u201d State v. Parker, 183 N.C. App. 1, 3, 644 S.E.2d 235, 238 (2007). Moreover, the trial court must summarily grant a motion to suppress evidence if \u201c[t]he State stipulates that the evidence sought to be suppressed will not be offered in evidence in any criminal action or proceeding against the defendant.\u201d N.C. Gen. Stat. \u00a7 15A-977(b)(2) (2011). Here, the State abandoned its appeal of the district court\u2019s suppression of the blood evidence and has maintained to both the superior court below and this Court that it would not introduce the blood evidence at trial in superior court. Given the State\u2019s stipulation that the blood evidence would not be offered in evidence against defendant, the trial court was required to summarily grant defendant\u2019s motion to suppress the blood evidence.\nWe note that the arguments presented in both the State\u2019s and defendant\u2019s appellate briefs are primarily devoted to the constitutional issue of whether the officer\u2019s actions in compelling defendant\u2019s blood be drawn were unreasonable under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 18 and 19 of the North Carolina Constitution. However, we need not address this issue. \u201c[A]ppellate courts must \u2018avoid constitutional questions, even if properly presented, where a case may be resolved on other grounds.\u2019 \u201d James v. Bartlett, 359 N.C. 260, 266, 607 S.E.2d 638, 642 (2005) (quoting Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002)). Here, the trial court erred in dismissing the charge against defendant under N.C. Gen. Stat. \u00a7 15A-954(a)(l). Having concluded that none of the statutory criteria for dismissal apply to the present case, we must reverse the order of the trial court dismissing defendant\u2019s DWI charge. Further, given the State\u2019s stipulation that it would not introduce the challenged evidence at trial against defendant, the trial court was required to summarily grant defendant\u2019s motion to suppress. Accordingly, we remand to the trial court for further proceedings consistent with this opinion.\nReversed and remanded.\nJudges GEER and STEPHENS concur.", "type": "majority", "author": "McCullough, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KELVIN DEON WILSON\nNo. COA12-641\nFiled 15 January 2013\n1. Appeal and Error \u2014 notice of appeal \u2014 timeliness\u2014between rendition and 14 days from entry\nThe State\u2019s appeal from the granting of a motion to dismiss misdemeanor driving while impaired was timely where the notice of appeal came between rendition of the judgment and the expiration of 14 days from entry of judgment.\n2. Constitutional Law \u2014 compelled blood draw \u2014 no finding that statute unconstitutional \u2014 statutory criteria for dismissal not applicable \u2014 non-use of evidence stipulated\nA trial court order dismissing defendant\u2019s driving while impaired (DWI) charge for a compelled blood draw was reversed and remanded because none of the statutory criteria for dismissal applied. The trial court did not find that the misdemeanor DWI statute was unconstitutional as applied to defendant and the alleged constitutional violation did not irreparably prejudice the preparation of defendant\u2019s case. Given the State\u2019s stipulation that the blood evidence would not be offered against defendant, the trial court was required to summarily grant defendant\u2019s motion to suppress the blood evidence.\nAppeal by the State from order entered 18 January 2012 by Judge Joseph E. Turner in Forsyth County Superior Court. Heard in the Court of Appeals 15 November 2012.\nAttorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant appellee." }, "file_name": "0246-01", "first_page_order": 256, "last_page_order": 262 }