{ "id": 12168462, "name": "STATE OF NORTH CAROLINA v. SHARKEEM JAMMARCUS FOUSHEE", "name_abbreviation": "State v. Foushee", "decision_date": "2014-05-20", "docket_number": "No. COA13-846", "first_page": "71", "last_page": "80", "citations": [ { "type": "official", "cite": "234 N.C. App. 71" } ], "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": "185 L. Ed. 2d 876", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 12697796, 12697775, 12697776, 12697777, 12697778, 12697779, 12697780, 12697789 ], "year": 2013, "opinion_index": 0, "case_paths": [ "/us/569/0953-08", "/us/569/0952-01", "/us/569/0952-02", "/us/569/0952-03", "/us/569/0952-04", "/us/569/0952-05", "/us/569/0952-06", "/us/569/0953-07" ] }, { "cite": "133 S. Ct. 2009", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 12697775, 12697776, 12697777, 12697778, 12697718, 12697788 ], "year": 2013, "opinion_index": 0, "case_paths": [ "/us/569/0952-01", "/us/569/0952-02", "/us/569/0952-03", "/us/569/0952-04", "/us/569/0948-03", "/us/569/0952-15" ] }, { "cite": "366 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4358592, 4357920, 4346594, 4348294, 4357682, 4359219, 4351413, 4354519 ], "year": 2012, "opinion_index": 0, "case_paths": [ "/nc/366/0415-04", "/nc/366/0415-05", "/nc/366/0415-01", "/nc/366/0415-08", "/nc/366/0415-02", "/nc/366/0415-07", "/nc/366/0415-03", "/nc/366/0415-06" ] }, { "cite": "627 S.E.2d 312", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635307 ], "year": 2006, "pin_cites": [ { "page": "314", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 15A-910(b)" } ], "opinion_index": 0, "case_paths": [ "/se2d/627/0312-01" ] }, { "cite": "664 S.E.2d 27", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641576 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "29", "parenthetical": "quotations omitted" }, { "page": "29" }, { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/se2d/664/0027-01" ] }, { "cite": "667 S.E.2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642002, 12642003, 12642004 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/667/0234-01", "/se2d/667/0234-02", "/se2d/667/0234-03" ] }, { "cite": "362 N.C. 478", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12642003, 12642004, 12642006, 12641999 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/667/0234-02", "/se2d/667/0234-03", "/se2d/667/0236-01", "/se2d/667/0232-01" ] }, { "cite": "651 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639638 ], "year": 2007, "pin_cites": [ { "page": "587", "parenthetical": "stating that \"under the plain language of N.C. Gen. Stat. \u00a7 [15A-] 1445(a)(1), the State has a right to appeal the dismissal of one count and this appeal is not interlocutory\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/651/0584-01" ] }, { "cite": "659 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640793 ], "year": 2008, "pin_cites": [ { "page": "60" } ], "opinion_index": 0, "case_paths": [ "/se2d/659/0058-01" ] }, { "cite": "657 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640450 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "366" }, { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0361-01" ] }, { "cite": "357 S.E.2d 694", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "696" } ], "opinion_index": 0 }, { "cite": "320 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4731807 ], "year": 1987, "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0126-01" ] }, { "cite": "737 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "opinion_index": 0 }, { "cite": "731 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "527-28" } ], "opinion_index": 0 }, { "cite": "176 N.C. App. 752", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301718 ], "year": 2006, "pin_cites": [ { "page": "755", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 15A-910(b)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/176/0752-01" ] }, { "cite": "447 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "379" }, { "page": "379" } ], "opinion_index": 0 }, { "cite": "337 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549276 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "664" }, { "page": "664" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0658-01" ] }, { "cite": "540 S.E.2d 404", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "411", "parenthetical": "quoting State v. Smith, 337 N.C. 658, 664, 447 S.E.2d 376, 379 (1994)" }, { "page": "411" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 553", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9442290 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "561", "parenthetical": "quoting State v. Smith, 337 N.C. 658, 664, 447 S.E.2d 376, 379 (1994)" }, { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0553-01" ] }, { "cite": "191 N.C. App. 768", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160062 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "771", "parenthetical": "quotations omitted" }, { "page": "771" }, { "page": "771" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0768-01" ] }, { "cite": "357 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "667" } ], "opinion_index": 0 }, { "cite": "320 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723747 ], "year": 1987, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0328-01" ] }, { "cite": "661 S.E.2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "880", "parenthetical": "quoting State v. Carson, 320 N.C. 328, 336, 357 S.E.2d 662, 667 (1987)" } ], "opinion_index": 0 }, { "cite": "362 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149461 ], "year": 2008, "pin_cites": [ { "page": "295", "parenthetical": "quoting State v. Carson, 320 N.C. 328, 336, 357 S.E.2d 662, 667 (1987)" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0285-01" ] }, { "cite": "731 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "opinion_index": 0 }, { "cite": "366 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4348456, 4354672, 4357297, 4351762, 4348408, 4360122, 4357084 ], "year": 2012, "opinion_index": 0, "case_paths": [ "/nc/366/0233-04", "/nc/366/0233-01", "/nc/366/0233-05", "/nc/366/0233-02", "/nc/366/0233-06", "/nc/366/0233-03", "/nc/366/0233-07" ] }, { "cite": "720 S.E.2d 836", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "841" } ], "opinion_index": 0 }, { "cite": "457 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "872" } ], "opinion_index": 0 }, { "cite": "340 N.C. 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790199 ], "year": 1995, "pin_cites": [ { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0301-01" ] }, { "cite": "186 N.C. App. 382", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8156942 ], "year": 2007, "pin_cites": [ { "page": "385", "parenthetical": "stating that \"under the plain language of N.C. Gen. Stat. \u00a7 [15A-] 1445(a)(1), the State has a right to appeal the dismissal of one count and this appeal is not interlocutory\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0382-01" ] }, { "cite": "743 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2013, "opinion_index": 0 }, { "cite": "737 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "pin_cites": [ { "page": "470" }, { "page": "470-71" }, { "page": "470-71" }, { "page": "471" }, { "page": "470" }, { "page": "470" }, { "page": "470" } ], "opinion_index": 0 }, { "cite": "189 N.C. App. 784", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156317 ], "year": 2008, "pin_cites": [ { "page": "785" } ], "opinion_index": 0, "case_paths": [ "/nc-app/189/0784-01" ] }, { "cite": "285 S.E.2d 784", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "791" } ], "opinion_index": 0 }, { "cite": "304 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570356 ], "year": 1982, "pin_cites": [ { "page": "669" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0658-01" ] }, { "cite": "362 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149183 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "200" }, { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0191-01" ] }, { "cite": "678 S.E.2d 725", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "729", "parenthetical": "quoting Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 200, 657 S.E.2d 361, 366 (2008)" }, { "page": "729" } ], "opinion_index": 0 }, { "cite": "198 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4168996 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "6", "parenthetical": "quoting Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 200, 657 S.E.2d 361, 366 (2008)" }, { "page": "6-7" } ], "opinion_index": 0, "case_paths": [ "/nc-app/198/0001-01" ] } ], "analysis": { "cardinality": 868, "char_count": 24603, "ocr_confidence": 0.727, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24685184348585573 }, "sha256": "dbf95097e5ea929be016b3bcfc7f74a3c22a0f53b6766a4483806801f10c7dfa", "simhash": "1:8f79d460566fbd70", "word_count": 3987 }, "last_updated": "2023-07-14T22:30:06.319137+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge McCULLOUGH concur." ], "parties": [ "STATE OF NORTH CAROLINA v. SHARKEEM JAMMARCUS FOUSHEE" ], "opinions": [ { "text": "ERVIN, Judge.\nThe State has sought appellate review of an order dismissing two counts of obtaining property by false pretenses that had been lodged against Defendant Sharkeem Jammarcus Foushee and precluding the State from calling certain witnesses to testify at the trial of a separate felonious larceny charge that had been lodged against Defendant, with both of these decisions resting on the trial court\u2019s determination that the State had violated the provisions of N.C. Gen. Stat. \u00a7 15A-903. On appeal, the State argues that the trial court erroneously dismissed the obtaining property by false pretenses Charges on the grounds that the State had not, in fact, violated the applicable discovery statutes. After careful consideration of the State\u2019s challenge to the trial court\u2019s order in light of the record and the applicable law, we conclude that the trial court\u2019s order should be reversed and that this case should be remanded to the Durham County Superior Court for further proceedings not inconsistent with this opinion.\nI. Factual Background\nOn 17 July 2012, a warrant for arrest charging Defendant with one count of felonious larceny and two counts of obtaining property by false pretenses was issued. According to the allegations contained in the warrant, Defendant took twenty-six rings and a pair of earrings with a total value of $17,655 belonging to Alfreda Andrews and pawned four of the rings at Friendly Jewelry and Pawn Shop based upon a representation that he owned the property in question. On 17 September 2012, the Durham County grand jury returned a bill of indictment charging Defendant with one count of felonious larceny and two counts of obtaining property by false pretenses based on the same factual allegations set out in the earlier warrant for arrest.\nOn 24 September 2012, Defendant filed a request for formal arraignment, a motion to preserve evidence, and a request for voluntary discovery. On 26 September 2012, Defendant filed a motion for discovery. On 3 October 2012 and 13 February 2013, respectively, the State responded to Defendant\u2019s discovery requests.\nOn 13 February 2013, Defendant filed two motions in limine. In the first motion, Defendant requested that the trial court (1) order the State to certify that it had complied with the provisions of N.C. Gen. Stat. \u00a7 15A-903; (2) prohibit the State from introducing evidence that had not been provided to Defendant; and (3) order the State to comply with N.C. Gen. Stat. \u00a7\u00a7 15A-903(a)(l)(a) and 15A-903(a)(l)(c) by providing Defendant with a copy of any new statements made by any witness before that witness was called to testify. In the second motion, Defendant requested that the trial court prohibit the State from introducing or referring to any extra-judicial statements made by any person who was not going to testily at trial. On 13 February 2013, the State provided Defendant with a supplemental discovery response and a certification that all materials subject to discovery had been provided to Defendant.\nOn 18 February 2013, Defendant filed two dismissal motions. In the first of these motions, Defendant requested that all of the charges that had been lodged against him be dismissed as the result of alleged discovery violations stemming from the State\u2019s failure to interview and provide statements from certain witnesses. More specifically, Defendant alleged in the first dismissal motion that the State had been made aware that Ms. Andrews\u2019 children, Chynna Andrews and Carlston Andrews, had been on the premises of the family home at the time that the stolen jewelry had become missing, that Chynna and Carlston Andrews might possess potentially exculpatory information, and that the State had wil-fully failed to interview them. In the second of these motions, Defendant requested that all of the charges that had been lodged against him be dismissed as the result of certain alleged discovery violations stemming from the State\u2019s failure to obtain and preserve a surveillance video from the pawn shop. More specifically, Defendant alleged in the second dismissal motion that, despite having knowledge that a potentially exculpatory surveillance video had been made at Friendly Jewelry and Pawn, the State had negligently failed to obtain the video prior to its destruction, which had occurred approximately six months after the date upon which the stolen jewelry was pawned there.\nA hearing was held with respect to Defendant\u2019s dismissal motions before the trial court on 18 February 2013. After hearing arguments concerning the merits of Defendant\u2019s dismissal motions, the trial court entered an order concluding that the State had failed to \u201cuse reasonable diligence to investigate, preserve, document, or make [the surveillance video] available\u201d \u201cor [to obtain] any relevant evidence\u201d from two witnesses who had been present at the time that one of the alleged offenses was committed in violation of the State\u2019s discovery obligations as prescribed in N.C. Gen. Stat. \u00a7 15A-903. Based upon this set of determinations, the trial court sanctioned the State by dismissing the two counts of obtaining property by false pretenses that had been lodged against Defendant and ordering that the State be precluded from calling Chynna or Carlston Andrews to testify at Defendant\u2019s trial for felonious larceny. After the trial court denied a motion to continue the trial of the felonious larceny charge, the State took a voluntary dismissal with respect to that charge. The State noted an appeal to this Court from the trial court\u2019s order.\nOn 7 October 2013, Defendant filed a motion to dismiss the State\u2019s appeal or, in the alternative, a motion to strike the record on appeal and portions of the State\u2019s brief on the basis that the State had committed numerous violations of the North Carolina Rules of Appellate Procedure. On 16 October 2013, the State filed a response to Defendant\u2019s motion and an alternative petition seeking the issuance of a writ of certiorari authorizing appellate review of the trial court\u2019s order. On 18 October 2013, Defendant filed a response to the State\u2019s certiorari petition.\nII. Substantive Legal Analysis\nA. Motion to Dismiss Anneal\nAs an initial matter, we must address Defendant\u2019s motion to dismiss the State\u2019s appeal or, in the alternative, to strike the record on appeal and portions of the State\u2019s brief. Although Defendant is certainly correct in contending that the State has violated numerous provisions of the North Carolina Rules of Appellate Procedure, \u201cwe dismiss appeals \u2018only in the most egregious instances of nonjurisdictional default[.]\u2019 \u201d Carolina Forest Ass\u2019n, Inc. v. White, 198 N.C. App. 1, 6, 678 S.E.2d 725, 729 (2009) (quoting Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 200, 657 S.E.2d 361, 366 (2008)); see also 5 Am. Jur.2d Appellate Review \u00a7 804, at 540 (stating that \u201cit is preferred that an appellate court address the merits of an appeal whenever possible,\u201d so that \u201ca party\u2019s failure to comply with nonjurisdictional rule reqfiirements normally should not lead to dismissal of the appeal\u201d). As a result of the fact that the State\u2019s violations of the North Carolina Rules of Appellate Procedure are nonjurisdictional in nature and, while troubling, do not rise to the level of a \u201csubstantial failure\u201d to comply with or a \u201cgross violation\u201d of the applicable rule provisions, we conclude, in the exercise of our discretion, that we should review the State\u2019s challenge to the validity of the trial court\u2019s order on the merits rather than dismissing the State\u2019s appeal. Dogwood, 362 N.C. at 199, 657 S.E.2d at 366. Put another way, \u201cwe believe [that] the fundamental principle of Dogwood, to \u2018promote public confidence in the administration of justice in our appellate courtsf,]\u2019 does not necessitate dismissal in the instant case.\u201d Carolina Forest, 198 N.C. App. at 6-7, 678 S.E.2d at 729. As a result, although we deny Defendant\u2019s motion to dismiss the State\u2019s appeal, we strongly admonish counsel for the State to strictly adhere to all applicable provisions of the North Carolina Rules of Appellate Procedure in the future.\nB. Appealability of Orders Imposing Discovery Sanctions\nSecondly, we must determine the extent to which the trial court\u2019s order is subject to appeal by the State. \u201cThe right of the State to appeal in a criminal case is statutory, and statutes authorizing an appeal by the State in criminal cases are strictly construed.\u201d State v. Elkerson, 304 N.C. 658, 669, 285 S.E.2d 784, 791 (1982). \u201cThe State\u2019s right of appeal is granted by [N.C. Gen. Stat.] \u00a7 15A-1445.\u201d State v. Watkins, 189 N.C. App. 784, 785, 659 S.E.2d 58, 60 (2008). \u201cN.C. Gen. Stat. \u00a7 15A-1445(a) (1) allows the State to appeal from a \u2018decision or judgment dismissing criminal charges as to one or more counts.\u2019 \u201d State v. Dorman, _ N.C. App. _, _, 737 S.E.2d 452, 470 (quoting N.C. Gen. Stat. \u00a7 15A-1445(a) (1)), disc. review denied, _ N.C. _, 743 S.E.2d 206 (2013). \u201cThe General Statutes do not provide a similar right of appeal with regard to the imposition of lesser discovery sanctions upon the State.\u201d Id. at _, 737 S.E.2d at 470-71. As a result, the State has the right to appeal a trial court order dismissing a criminal charge while lacking the authority to appeal an order imposing a lesser sanction.\nAlthough the trial court granted Defendant\u2019s motion to dismiss the two counts of obtaining property by false pretenses that had been lodged against Defendant, it simply precluded the State from offering the testimony of certain potential witnesses in the felonious larceny case. Moreover, the State voluntarily dismissed the felonious larceny charge after the trial court denied its continuance motion. Although the State\u2019s notice of appeal stated that it was appealing from the order \u201cin which the Court dismissed two counts of Obtaining Property by False Pretenses and prohibited the State from introducing the testimony of two witnesses\u201d and although the State clearly has the right to seek appellate review of that portion of the trial court\u2019s order challenging the dismissal of the obtaining property by false pretenses charges, see State v. Newman, 186 N.C. App. 382, 385, 651 S.E.2d 584, 587 (2007) (stating that \u201cunder the plain language of N.C. Gen. Stat. \u00a7 [15A-] 1445(a)(1), the State has a right to appeal the dismissal of one count and this appeal is not interlocutory\u201d), disc. review denied, 362 N.C. 478, 667 S.E.2d 234 (2008), the fact that \u201c[t]he General Statutes do not provide a similar right of appeal with regard to the imposition of lesser discovery sanctions upon the State,\u201d Dorman, _ N.C. App. at _, 737 S.E.2d at 470-71, necessitates a determination that the State lacks the right to seek appellate review of that portion of the trial court\u2019s order precluding the presentation of any testimony from Chynna and Carlston Andrews at the trial of the felonious larceny case. As a result, we will limit our review of the State\u2019s challenge to the trial court\u2019s order to a consideration of the lawfulness of the trial court\u2019s decision to dismiss the two obtaining property by false pretenses charges.\nC. Validity of the Trial Court\u2019s Dismissal Decision\nIn its brief, the State contends that the trial court erred by dismissing the two counts of obtaining property by false pretenses based upon the State\u2019s failure to comply with the provisions of N.C. Gen. Stat. \u00a7 15A-903. More specifically, the State contends that certain of the trial court\u2019s findings of fact lacked adequate evidentiary support and that the trial court erroneously concluded as a matter of law that the failure to obtain and preserve the surveillance video taken at the establishment at which Ms. Andrews\u2019 jewelry was pawned constituted a violation of Defendant\u2019s rights under the applicable discovery statutes. The State\u2019s argument has merit.\n1. Standard of Review\nA determination of the extent, if any, to which the State failed to comply with its obligation to provide discovery to a criminal defendant is a decision left to the sound discretion of the trial court. State v. Jackson, 340 N.C. 301, 317, 457 S.E.2d 862, 872 (1995). For that reason, this Court \u201creview[s] a [trial court\u2019s] ruling on discovery matters for an abuse of discretion.\u201d State v. Pender, _ N.C. App. _, _, 720 S.E.2d 836, 841, disc. review denied, 366 N.C. 233, 731 S.E.2d 414 (2012). \u201c \u2018The trial court may be reversed for an abuse of discretion in this regard only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision.\u2019 \u201d State v. Cook, 362 N.C. 285, 295, 661 S.E.2d 874, 880 (2008) (quoting State v. Carson, 320 N.C. 328, 336, 357 S.E.2d 662, 667 (1987)). \u201cWhen discretionary rulings are made under a misapprehension of the law, [however,] this may constitute an abuse of discretion.\u201d State v. Tuck, 191 N.C. App. 768, 771, 664 S.E.2d 27, 29 (2008) (quotations omitted).\n2. Basic Principles of Criminal Discovery\n\u201cIt is now well settled in North Carolina that the right to discovery is a statutory right.\u201d Tuck, 191 N.C. App. at 771, 664 S.E.2d at 29. According to N.C. Gen. Stat. \u00a7 15A-903, \u201cupon a motion of the defendant, the court must order . . . [t]he State to make available to the defendant the complete files of all law enforcement agencies, investigatory agencies, and prosecutors\u2019 offices involved in the investigation of the crimes committed or the prosecution of the defendant.\u201d N.C. Gen. Stat. \u00a7 15A-903(a)(1). \u201cThe term \u2018file\u2019 includes the defendant\u2019s statements, the codefendants\u2019 statements, witness statements, investigating officers\u2019 notes, results of tests and examinations, or any other matter or evidence obtained during the investigation of the offenses alleged to have been committed by the defendant.\u201d N.C. Gen. Stat. \u00a7 15A-903(a)(1)(a).\n\u201cThe State, however, is under a duty to disclose only those matters in its possession and \u2018is not required to conduct an independent investigation\u2019 to locate evidence favorable to a defendant.\u201d State v. Chavis, 141 N.C. App. 553, 561, 540 S.E.2d 404, 411 (2000) (quoting State v. Smith, 337 N.C. 658, 664, 447 S.E.2d 376, 379 (1994)). \u201c[W]e note that this Court has interpreted the provisions of [N.C. Gen. Stat. \u00a7] 15A-903 to require production by the State of already existing documents.\" Dorman, _ N.C. App. at _, 737 S.E.2d at 471. As a result, \u201c[t]he statute imposes no duty on the State to create or continue to develop additional documentation regarding an investigation.\u201d Id.\n\u201cIf a trial court determines that the State has violated statutory discovery provisions or a discovery order, it may impose a wide array of sanctions!,] including dismissal of the charge with or without prejudice.\u201d Dorman, _ N.C. App. at _, 737 S.E.2d at 470. \u201cHowever, prior to imposing any [] sanctions, the trial court must \u2018consider both the materiality of the subject matter and the totality of the circumstances surrounding an alleged failure to comply\u2019 with the discovery requirements.\u201d State v. Jaaber, 176 N.C. App. 752, 755, 627 S.E.2d 312, 314 (2006) (quoting N.C. Gen. Stat. \u00a7 15A-910(b)). \u201cIf the court imposes any sanction, it must make specific findings justifying the imposed sanction.\u201d N.C. Gen. Stat. \u00a7 15A-910(d). \u201c \u2018Given that dismissal of charges is an \u2018extreme sanction\u2019 which should not be routinely imposed, orders dismissing charges for noncompliance with discovery orders preferably should also contain findings which detail the perceived prejudice to the defendant which justifies the extreme sanction imposed.\u2019 \u201d Dorman, _ N.C. App. at _, 737 S.E.2d at 470 (quoting State v. Allen, _ N.C. App. _, _, 731 S.E.2d 510, 527-28 (internal quotation marks and citations omitted), disc. review denied, 366 N.C. 415, 737 S.E.2d 377 (2012), cert. denied, _ U.S. _, 133 S. Ct. 2009, 185 L. Ed. 2d 876 (2013).\n3. Extent to Which Discovery Violation Occurred\nAccording to the argument that Defendant advanced in the trial court and that the trial court accepted in its order, the State violated the discovery-related provisions of N.C. Gen. Stat. \u00a7 15A-903 by negligently failing to obtain and preserve the pawn shop surveillance video. More specifically, Defendant asserted in his dismissal motion stemming from the loss and destruction of the surveillance video that his trial counsel notified the State on 7 August 2012 that there was reason to believe that Chynna Andrews had been at the pawn shop on the date of the alleged offense and inquired if the State had obtained a surveillance video from the pawn shop on the theory that this video might \u201cshow Chynna Andrews at the pawn shop.\u201d Approximately two or three weeks before 18 February 2013, the date upon which Defendant\u2019s trial was scheduled to begin, Defendant\u2019s trial counsel made another inquiry about the extent to which the State had obtained the pawn shop surveillance video. As a result of this inquiry, the prosecutor spoke with an investigator who \u201cwent down to the pawn shop and asked about a video,\u201d ultimately learning \u201cthat after six months it had been destroyed.\u201d Based upon this set of facts, Defendant argued that the State was \u201caware of evidence that could be exculpatory and acted with negligence to allow it to be destroyed\u201d contrary to the discovery-related obligations to which the State was subject pursuant to N.C. Gen. Stat. \u00a7 15A-903. We do not find Defendant\u2019s argument, which provided the basis for the trial court\u2019s decision, persuasive.\nA careful review of the record reveals no indication that the surveillance video at issue here was ever in the State\u2019s possession. Given that \u201c[t]he State ... is under a duty to disclose only those matters in its possession and \u2018is not required to conduct an independent investigation\u2019 to locate evidence favorable to a defendant,\u201d Chavis, 141 N.C. App. at 561, 540 S.E.2d at 411 (quoting Smith, 337 N.C. at 664, 447 S.E.2d at 379), the State was under no statutory obligation to obtain and provide the pawn shop surveillance video to Defendant. As a result, given that the record contains no support for the trial court\u2019s determination that the State failed to comply with the discovery-related obligations imposed by N.C. Gen. Stat. \u00a7 15A-903 stemming from its failure to obtain, preserve, and disclose the pawn shop surveillance video to Defendant, the trial court\u2019s decision that the State did not comply with the mandates of N.C. Gen. Stat. \u00a7 15A-903 rested upon a misapprehension of the applicable law sufficient to render its decision to dismiss the obtaining property by false pretenses charges that had been lodged against Defendant an abuse of discretion. Tuck, 191 N.C. App. at 771, 664 S.E.2d at 29. As a result, given that the trial court\u2019s decision to dismiss the obtaining property by false pretenses charges rested upon a misapprehension of law concerning the extent to which a discovery violation actually occurred, the trial court\u2019s order should be reversed and this case should be remanded to the Durham County Superior Court for further proceedings not inconsistent with this opinion.\nIII. Conclusion\nThus, for the reasons set forth above, we conclude that the trial court erred by dismissing the two counts of obtaining property by false pretenses that had been lodged against Defendant based on the State\u2019s alleged failure to comply with its discovery obligations under N.C. Gen. Stat. \u00a7 15A-903. As a result, the trial court\u2019s order should be, and hereby is, reversed and this case should be, and hereby is, remanded to the Durham County Superior Court for further proceedings not inconsistent with this opinion.\nREVERSED AND REMANDED.\nChief Judge MARTIN and Judge McCULLOUGH concur.\n. Among tiie rules violations upon which Defendant\u2019s motion was predicated are that (1) Defendant\u2019s dismissal motions and \u201cother papers\u201d were missing a critical page and were treated as attachments rather than included in the record on appeal; (2) a number of other important documents were treated as attachments rather than included as part of the record on appeal; (3) the pages in the record on appeal and attachments were not individually and consecutively numbered; (4) Defendant\u2019s social security number was not redacted from the documents included in the record on appeal; (5) the State failed to provide the court reporter with the appellate docket number or request that the transcript be electronically filed; and (6) the State\u2019s brief failed to \u201cdefine clearly the issues presented to the reviewing court.\u201d\n. The State candidly .concedes that, despite the reference to the portion of the trial court\u2019s order precluding it from presenting certain testimony at the trial of the felonious larceny charge in its notice of appeal, it has no right to appeal from that portion of the trial court\u2019s order imposing sanctions in the felonious larceny case, stating that, \u201c[a]lthough the trial court\u2019s order regarding the larceny charge was also incorrect, the State has not attempted to appeal that order.\u201d\n. Although the parties have expended considerable energy debating the sufficiency of the record support for the trial court\u2019s findings of fact in their briefs, we need not address those contentions given our ultimate determination that, in light of the facts found in the trial court\u2019s order, no discovery violation occurred.\n. On appeal, Defendant has not attempted to defend the trial court\u2019s dismissal decision as a proper exercise of the trial court\u2019s authority to sanction a discovery violation by the State. Instead, Defendant argues that the trial court\u2019s order should be upheld based upon a trial tribunal\u2019s inherent authority \u201cto do all things that are reasonably necessary for the proper administration of justice.\u201d Beard v. North Carolina State Bar, 320 N.C. 126, 129, 357 S.E.2d 694, 696 (1987). We will not, however, address Defendant\u2019s \u201cinherent authority\u201d argument on the merits given the trial court\u2019s failure to- adopt such a rationale as the basis for its dismissal order. As a result, Defendant will, of course, remain free to seek any available relief stemming from the loss of the surveillance video based on any theory other than an alleged violation of the State\u2019s statutory discovery obligations during the course of the proceedings on remand.\n. Aside from the issue discussed in the text, the trial court\u2019s order does not \u201cdetail the perceived prejudice to the defendant\u201d that would \u201cjustif[y] the extreme sanction imposed.\u201d Dorman, _ N.C. App. at _, 737 S.E.2d at 470. \u201cAbsent a finding explaining the specific and continuing prejudice [the defendant will suffer,\u201d a trial court is not authorized to dismiss a pending criminal case as a sanction for a discovery violation by the State. Id. Thus, wholly aside from the fact that the record does not, in fact, disclose the existence of any discovery violation relating to the failure to obtain and preserve the pawn shop surveillance video, we would also be required to reverse the trial court\u2019s dismissal order based upon its failure to delineate the \u201cspecific and continuing\u201d prejudice to which Defendant would be subject as a result of the alleged discovery violation.", "type": "majority", "author": "ERVIN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Teresa M. Postell, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SHARKEEM JAMMARCUS FOUSHEE\nNo. COA13-846\nFiled 20 May 2014\n1. Appeal and Error\u2014appellate rules violations\u2014admonition\nAlthough the Court of Appeals denied defendant\u2019s motion to dismiss the State\u2019s appeal based on numerous violations of the appellate rules, counsel for the State was strongly admonished to strictly adhere to all applicable provisions of the North Carolina Rules of Appellate Procedure in the future.\n2. Appeal and Error\u2014appealability\u2014imposition of lesser discovery sanctions\nThe Court of Appeals limited its review of the State\u2019s challenge to the trial court\u2019s order to a consideration of the lawfulness of the trial court\u2019s decision to dismiss the two obtaining property by false pretenses charges. The General St\u00e1tutes do not provide a similar right of appeal with regard to the imposition of lesser discovery sanctions upon the State.\n3. Discovery\u2014violations\u2014misapprehension of law\nThe trial court erred by dismissing two counts of obtaining property by false pretenses based on a misapprehension of law concerning the extent to which a discovery violation actually occurred. The trial court\u2019s order was reversed and remanded.\nAppeal by the State from order entered 19 February 2013 by Judge R. Allen Baddour in Durham County Superior Court. Heard in the Court of Appeals 9 December 2013.\nAttorney General Roy Cooper, by Assistant Attorney General Teresa M. Postell, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for Defendant." }, "file_name": "0071-01", "first_page_order": 81, "last_page_order": 90 }