State v. Cromartie , 257 N.C. App. 790 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-350
Filed: 6 February 2018
Duplin County, Nos. 15 CRS 52575-77
STATE OF NORTH CAROLINA
v.
DARYL LEE CROMARTIE, Defendant.
Appeal by Defendant from judgment entered 7 September 2016 by Judge
Phyllis M. Gorham in Duplin County Superior Court. Heard in the Court of Appeals
17 October 2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General
Christina S. Hayes, for the State.
Patterson Harkavy LLP, by Narendra K. Ghosh, for Defendant.
MURPHY, Judge.
Daryl Lee Cromartie (“Defendant”) appeals from judgment entered upon his
convictions for attaining habitual felon status, common law robbery, misdemeanor
larceny, fleeing to elude arrest, resisting a public officer, and simple assault.
Defendant argues the trial court erred by: (1) admitting Deputy Snyder’s prejudicial
and inadmissible hearsay into evidence; (2) failing to arrest judgment for the larceny
and assault convictions; and (3) failing to dismiss the charge of resisting an officer
where no evidence satisfied the allegation in the indictment. For the reasons
STATE V. CROMARTIE
Opinion of the Court
discussed, we hold the trial court did not commit prejudicial error in allowing Deputy
Snyder’s testimony into evidence, and did not err by denying Defendant’s motion to
dismiss the resisting a public officer charge. The trial court, however, did err by
failing to arrest judgment on Defendant’s convictions for non-felonious larceny and
simple assault.
I. Background
Defendant was arrested on 14 December 2015 and indicted by a Duplin County
Grand Jury on 21 March 2016 on charges of misdemeanor fleeing to elude arrest with
a motor vehicle, resisting, obstructing or delaying a public officer, common law
robbery, felony larceny, and simple assault. A Duplin County Grand Jury
additionally indicted Defendant for attaining habitual felon status on 31 May 2016.
Defendant’s trial began on 6 September 2016. The evidence at trial tended to
show that after assaulting his girlfriend on 14 December 2015, Defendant stopped a
man on a moped, pulled the man off the moped and assaulted the man, and then
drove away on the man’s moped. Responding law enforcement officers quickly located
Defendant, who then fled from the officers on the moped. During the pursuit,
Defendant drove the moped behind a Dollar General store and out of the view of a
pursuing sheriff’s deputy. When the Deputy regained sight of Defendant, Defendant
was standing approximately 15 to 20 feet from the moped, which was overturned and
lying in a ditch. Defendant was arrested.
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Opinion of the Court
On 7 September 2016, the jury returned verdicts finding Defendant guilty of
misdemeanor fleeing to elude arrest, resisting, obstructing, or delaying a public
officer, common law robbery, non-felonious larceny, and simple assault. Following
the jury verdicts, Defendant pleaded guilty to attaining habitual felon status. The
trial court consolidated all of the offenses and entered a single judgment sentencing
Defendant in the mitigated range to a term of 58 to 82 months imprisonment.
Defendant gave notice of appeal in open court.
II. Analysis
A. Hearsay
On appeal, Defendant first contends the trial court erred in admitting
testimony from Deputy Sheriff Steven Snyder over his objections. Defendant claims
the challenged testimony was inadmissible hearsay and that its admission was
prejudicial to his case. We disagree that Defendant was prejudiced by the challenged
testimony.
“When preserved by an objection, a trial court’s decision with regard to the
admission of evidence alleged to be hearsay is reviewed de novo.” State v. Johnson,
209 N.C. App. 682, 692, 706 S.E.2d 790, 797 (2011). But, even if the trial court admits
hearsay in error, “[t]he erroneous admission of hearsay testimony is not always so
prejudicial as to require a new trial, and the burden is on the defendant to show
prejudice.” State v. Allen, 127 N.C. App. 182, 186, 488 S.E.2d 294, 297 (1997)
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Opinion of the Court
(citations omitted); see N.C.G.S. § 15A–1443(a) (2015). “Evidentiary errors are
harmless unless a defendant proves that absent the error a different result would
have been reached at trial.” State v. Ferguson, 145 N.C. App. 302, 307, 549 S.E.2d
889, 893 (2001) (citation omitted).
Under the North Carolina Rules of Evidence, “[h]earsay is not admissible
except as provided by statute or by [the] rules.” N.C.G.S. § 8C-1, Rule 802 (2015).
“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
N.C.G.S. § 8C-1, Rule 801(c). “When evidence of such statements by one other than
the witness testifying is offered for a proper purpose other than to prove the truth of
the matter asserted, it is not hearsay and is admissible.” State v. Coffey, 326 N.C.
268, 282, 389 S.E.2d 48, 56 (1990).
The testimony at issue in this case concerned Defendant’s alleged assault of
his girlfriend prior to the events giving rise to the charges in this case. Deputy Snyder
testified that he was on a dayshift patrol on 14 December 2015 when a female at a
gas station flagged him down. Deputy Snyder recalled that the woman ran to his car,
crying hysterically, and told him that she had just been assaulted. Defendant
objected to the testimony, claiming it was hearsay. The trial court, however,
overruled Defendant’s objection and instructed the State to “[l]ay a foundation for the
purpose of the call in reference to the stop.” Deputy Snyder then continued to explain
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Opinion of the Court
the situation. When the State inquired whether the woman identified her assaulter
to Deputy Snyder, Defendant objected on hearsay grounds. Over Defendant’s
objection, Deputy Snyder was allowed to testify that the woman told him the name of
her assaulter. The name she gave Deputy Snyder was Defendant’s name. Deputy
Snyder also testified that he asked the woman where Defendant was heading when
Defendant left the gas station. Overruling another hearsay objection by Defendant,
the trial court allowed Deputy Snyder to testify that the woman told him “[Defendant]
flagged down a white pickup and was heading North on 117.” When local units
arrived at the gas station, Deputy Snyder left heading north on the lookout for
Defendant.
Defendant now admits that it initially appeared the testimony was elicited to
explain Deputy Snyder’s subsequent conduct, which Defendant recognizes to be a
valid purpose. Indeed, “[w]e have held statements of one person to another to explain
subsequent actions taken by the person to whom the statement was made are
admissible as nonhearsay evidence.” State v. Golphin, 352 N.C. 364, 440, 533 S.E.2d
168, 219 (2000) (quotation omitted). Yet, Defendant contends the trial court
ultimately admitted the evidence for substantive purposes when it instructed the jury
that the testimony could be considered evidence of motive and identity. The trial
court’s instructions were as follows:
Evidence has been received tending to show that
[D]efendant assaulted his girlfriend at the time that the
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Opinion of the Court
crime was committed in this case. This evidence was
received solely for the purpose of showing the identity of
the person who committed the crime charged in this case,
if it was committed, and that [D]efendant had a motive for
commission of the crime charged in this case. If you believe
this evidence, you may consider it but only for the limited
purpose for which it was received. You may not consider it
for any other purpose.
Upon review of the jury instructions, it appears the trial court was attempting
to limit the consideration of the evidence in accordance with N.C.G.S. § 8C-1, Rule
404(b), which states:
Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that he
acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake, entrapment or accident.
However, in doing so, the trial court changed the nature of the evidence from
nonhearsay, when the testimony is considered solely to explain Deputy Snyder’s
subsequent conduct, to hearsay, when the testimony is considered as proof of identity
and motive. That is because in order for the jury to consider the challenged testimony
as evidence of identity and motive, the jury would have to consider the testimony for
the truth of the matter asserted, even though the testimony did not directly concern
the crimes charged in this case. Thus, while the challenged testimony was admissible
to explain Deputy Snyder’s subsequent conduct, it was error for the trial court to
admit the testimony as evidence of Defendant’s identity and motive. When the
testimony is considered for the truth of the matter asserted, it is hearsay.
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Opinion of the Court
Nevertheless, the trial court’s admission of the challenged testimony for
purposes of proving identity and motive was harmless error. To show prejudice,
Defendant must show that “there was a reasonable possibility that a different result
would have been reached at trial if the error had not been committed.” State v.
Hickey, 317 N.C. 457, 473, 346 S.E.2d 646, 657 (1986) (citations omitted).
Defendant contends the challenged testimony was “highly prejudicial” in this
case because the crux of his defense was that the State failed to provide sufficient
evidence of his intent in taking the moped. Defendant asserts that, absent the
testimony, there was no evidence of his motivation for taking the moped or that he
intended to keep the moped. Defendant further asserts that the jury was much less
likely to doubt that he intended to permanently deprive the victim of the moped after
learning that he assaulted his girlfriend and was running away from her. We
disagree.
Absent the challenged testimony, there was ample evidence for the jury to
convict Defendant of the charged offenses. Specifically, evidence was presented that
the victim, the owner of the moped, was stopped by a man standing in the road
blocking his way. The man approached the victim and grabbed hold of the front of
the moped. The victim testified that the man began to ask him questions about the
moped and stated, “I like that scooter[ ]” and “I need to get me one.” When the victim
attempted to back up to go around the man, the man, who still had hold of the front
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Opinion of the Court
of the moped, reached over the handlebars, grabbed the victim by the coat collar, and
pulled the victim off of the moped. The moped fell to the ground and the man beat
the victim and slung him around on the road. A struggle ensued. Eventually, the
man was able to break free from the victim and took off on the moped. When asked
to describe what the man looked like, the victim identified Defendant, pointing to him
in the courtroom and stating, “[t]hat’s him right there[.]” Furthermore, testimony
was given that deputies spotted Defendant on the moped shortly thereafter and
pursued Defendant until he crashed the moped in a ditch.
Given the ample evidence in this case, there is not a reasonable possibility of
a different outcome even if the challenged testimony had not been admitted at trial.
Thus, the trial court did not commit prejudicial error when it admitted the testimony
as evidence of Defendant’s identity and motive.
B. Double Jeopardy
Defendant also argues the trial court erred by failing to arrest judgment on his
convictions for non-felonious larceny and simple assault. Defendant now contends
this error amounts to a violation of his right to be free from double jeopardy.
“The standard of review for alleged violations of constitutional rights is de
novo.” State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009) (citation
omitted). Yet, “a constitutional question which is not raised and passed upon in the
trial court will not ordinarily be considered on appeal.” State v. Hunter, 305 N.C. 106,
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Opinion of the Court
112, 286 S.E.2d 535, 539 (1982) (citations omitted). “In order to preserve a question
for appellate review, a party must have presented the trial court with a timely
request, objection or motion, stating the specific grounds for the ruling sought if the
specific grounds are not apparent.” State v. Eason, 328 N.C. 409, 420, 402 S.E.2d
809, 814 (1991); see also N.C. R. App. P. 10(a)(1) (2017). Particularly relevant to this
case, this Court has stated that,
[t]he constitutional right not to be placed in jeopardy twice
for the same offense, like other constitutional rights, may
be waived. To avoid waiving this right, a defendant must
properly raise the issue of double jeopardy before the trial
court. Failure to raise this issue at the trial court level
precludes reliance on the defense on appeal. Simply put,
double jeopardy protection may not be raised on appeal
unless the defense and the facts underlying it are brought
first to the attention of the trial court.
State v. White, 134 N.C. App. 338, 342, 517 S.E.2d 664, 667 (1999) (quotation marks
and citations omitted).
In this case, Defendant moved to dismiss all charges at the close of the State’s
evidence, only specifically arguing against the resisting a public officer charge.
Defendant then renewed “the same motions to dismiss for the same reasons[ ]” at the
close of all of the evidence. Defendant also later moved to set aside the verdicts on
the basis that they were “against the greater weight of the evidence.” Defendant,
however, never argued a double jeopardy violation to the trial court. As the double
jeopardy issue was never raised to the trial court, Defendant has not preserved the
issue for review on appeal.
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Opinion of the Court
Nevertheless, recognizing his possible error below, Defendant asserts on
appeal that, if the issue was not preserved for appeal, we should invoke Rule 2 to
reach the merits of the issue or we should determine whether he received ineffective
assistance of counsel. To prevent manifest injustice to Defendant in this case, we
choose to invoke Rule 2 and address the merits of Defendant’s argument. See N.C.
R. App. P. Rule 2 (“To prevent manifest injustice to a party, . . . either court of the
appellate division may, except as otherwise expressly provided by these rules,
suspend or vary the requirements or provisions of any of these rules in a case pending
before it upon application of a party or upon its own initiative, and may order
proceedings in accordance with its directions.”).
“Under the Double Jeopardy Clause, when one offense is a lesser-included
offense of another, the two offenses are considered the same criminal offense.” State
v. Schalow, __ N.C. App. __, __, 795 S.E.2d 567, 579 (2016) (citations omitted), disc.
review allowed, __ N.C. __, 796 S.E.2d 791 (2017). This Court has held that larceny
is a lesser included offense of common law robbery. State v. White, 322 N.C. 506, 517
n.1, 369 S.E.2d 813, 819 n.1 (1988) (reaffirming the Court’s prior holding that larceny
is a lesser included offense of common law robbery) (citing State v. Young, 305 N.C.
391, 393, 289 S.E.2d 374, 376 (1982)). Likewise, assault is a lesser included offense
of common law robbery. See State v. White, 142 N.C. App. 201, 204, 542 S.E.2d 265,
268 (2001) (“Our appellate courts have stated several times that the crime of common
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Opinion of the Court
law robbery includes an assault on the person.”). Upon review, it is clear the trial
court erred in sentencing Defendant for the non-felonious larceny and simple assault
convictions in this case because those offenses arose out of the same facts as the
common law robbery. As a result, the entry of judgment on the common law robbery
conviction and the lesser included non-felonious larceny and simple assault
convictions violated Defendant’s right to be free from double jeopardy.
The State does not contest that the convictions do not violate double jeopardy,
and in fact concedes that larceny and assault are lesser included offenses of common
law robbery. Instead, the State, assuming there was a double jeopardy violation,
argues Defendant was not prejudiced by the violation because all convictions were
consolidated for judgment and Defendant received a single sentence. In fact,
Defendant received the lowest possible sentence that he could have received in the
mitigated range. Therefore, although typically “[w]hen the trial court consolidates
multiple convictions into a single judgment but one of the convictions was entered in
error, the proper remedy is to remand for resentencing,” State v. Hardy, 242 N.C.
App. 146, 160, 774 S.E.2d 410, 420 (2015), we do not remand for resentencing where
Defendant has already received the lowest possible sentence because remanding
when one of the convictions of a consolidated sentence is in error is based on the
premise that multiple offense probably influenced the defendant’s sentence. See State
v. Wortham, 318 N.C. 669, 674, 351 S.E.2d 294, 297 (1987) (remanding for
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Opinion of the Court
resentencing when one or more, but not all, of the convictions consolidated for
judgment have been vacated because conviction for two or more offenses influences
adversely to a defendant the trial court’s judgment on the length of the sentence to
be imposed when these offenses are consolidated for judgment). We would only
remand after arresting judgment if “we were unable to determine what weight, if any,
the trial court gave to each of the separate convictions. . . .” See State v. Moore, 327
N.C. 378, 383, 395 S.E.2d 124, 127-28 (1990). Here, Defendant received the lowest
possible sentence and we need not remand for resentencing.
Nevertheless, the State’s argument ignores the collateral consequences of the
judgment. Our Supreme Court has stated, “[t]hat the offenses were consolidated for
judgment does not put to rest double jeopardy issues, because the separate
convictions may still give rise to adverse collateral consequences.” State v. Etheridge,
319 N.C. 34, 50, 352 S.E.2d 673, 683 (1987) (citations omitted). The proper recourse
in this case is for us to arrest judgment on Defendant’s convictions for non-felonious
larceny and simple assault so as to avoid any collateral consequences. See State v.
Jaynes, 342 N.C. 249, 276, 464 S.E.2d 448, 465 (1995) (arresting judgment on two
lesser included larceny convictions), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080(1996). We arrest judgment on the larceny and assault convictions.
C. Motion to Dismiss
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Opinion of the Court
In his last argument on appeal, Defendant argues the trial court erred in
denying his motion to dismiss the resisting a public officer charge because of a fatal
variance between the indictment and the evidence. We disagree. In the light most
favorable to the State, the direct and circumstantial evidence demonstrates that
Defendant continued to elude Deputy Boyette on foot after the moped overturned.
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). “In ruling on a motion
to dismiss, the evidence must be considered by the court in the light most favorable
to the State, and the State is entitled to every reasonable inference to be drawn from
the evidence.” State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387-88 (1984)
(citation omitted). “The trial court does not weigh the evidence, consider evidence
unfavorable to the State, or determine any witnesses’ credibility . . . . Ultimately, the
court must decide whether a reasonable inference of defendant’s guilt may be drawn
from the circumstances.” State v. Blizzard, 169 N.C. App. 285, 289-90, 610 S.E.2d
245, 249 (2005) (quotation omitted).
“The elements of resisting an officer are that a person ‘willfully and unlawfully
resisted, delayed or obstructed a public officer in discharging or attempting to
discharge a duty of his office.” State v. Shearin, 170 N.C. App. 222, 223, 612 S.E2d
371, 380 (2005) (quoting N.C.G.S. § 14-223). We have “previously recognized that an
indictment for the charge of resisting an officer must: 1) identify the officer by name,
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Opinion of the Court
2) indicate the official duty being discharged, and 3) indicate generally how [the]
defendant resisted the officer.” State v. Henry, 237 N.C. App. 311, 322, 765 S.E.2d
94, 102-103 (2014), disc. review denied, __ N.C. __, 775 S.E.2d 852 (2015) (quotation
omitted).
Here, the indictment for resisting an officer specified that Defendant resisted
“by running away from Cody Boyette on foot.” The evidence at trial tended to show
that Deputy Boyette was in hot pursuit of Defendant when Defendant went behind
the Dollar General. At some point between when Defendant went behind the store
and when Deputy Boyette arrived behind the store, Defendant traversed
approximately 15 to 20 feet from the stolen and overturned moped. It is a reasonable
inference that Defendant covered this distance on foot. Therefore, contrary to the
analysis set forth in the dissent, there was sufficient evidence presented to the jury
to find that Defendant ran away from Deputy Boyette on foot, as alleged in the
indictment. The trial court did not err by denying Defendant’s motion to dismiss for
a fatal variance.
III. Conclusion
For the reasons discussed, we hold the trial court did not commit prejudicial
error in allowing Deputy Snyder’s testimony into evidence, and did not err by denying
Defendant’s motion to dismiss the resisting a public officer charge. The trial court,
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Opinion of the Court
however, did err by failing to arrest judgment on Defendant’s convictions for non-
felonious larceny and simple assault.
NO ERROR IN PART, ARRESTED IN PART.
Judge BRYANT concurs.
Judge ARROWOOD concurs in part and dissents in part.
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No. COA17-350 – STATE V. CROMARTIE
ARROWOOD, Judge, concurring in part, dissenting in part.
I concur in that portion of the majority opinion that holds that the trial court
did not commit prejudicial error in allowing Deputy Snyder’s testimony into evidence.
I also concur in the finding that the trial court committed error by failing to arrest
judgment on defendant’s convictions for non-felonious larceny and simple assault.
I dissent from that portion of the majority opinion that finds that the trial court
did not err in denying defendant’s motion to dismiss the charge of resisting a public
officer. I believe that there is a fatal variance between the charge alleged in the
indictment and the State’s evidence at trial, thus, I vote to reverse the conviction for
resisting a public officer.
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). Furthermore,
[i]t is well established that “[a] defendant must be
convicted, if at all, of the particular offense charged in the
indictment” and that “[t]he State's proof must conform to
the specific allegations contained” therein. State v.
Pulliam, 78 N.C. App. 129, 132, 336 S.E.2d 649, 651 (1985).
Thus, “a fatal variance between the allegata and the
probata” is properly the subject of a motion to dismiss for
insufficiency of the evidence to sustain a conviction. State
v. Nunley, 224 N.C. 96, 97, 29 S.E.2d 17, 17 (1944). The
rationale for this rule is “to insure that the defendant is
able to prepare his defense against the crime with which
he is charged, and to protect the defendant from another
prosecution for the same incident.” State v. Norman, 149
N.C. App. 588, 594, 562 S.E.2d 453, 457 (2002). However,
not every variance is fatal, because “[i]n order for a
STATE V. CROMARTIE
ARROWOOD, J., concurring in part, dissenting in part.
variance to warrant reversal, the variance must be
material. A variance is not material, and is therefore not
fatal, if it does not involve an essential element of the crime
charged.” Id. (citation omitted). This Court has previously
recognized that “an indictment for the charge of resisting
an officer must: 1) identify the officer by name, 2) indicate
the official duty being discharged, and 3) indicate generally
how [the] defendant resisted the officer.” State v. Swift,
105 N.C. App. 550, 553, 414 S.E.2d 65, 67 (1992).
State v. Henry, 237 N.C. App. 311, 322, 765 S.E.2d 94, 102-103 (2014), disc. review
denied, __ N.C. __, 775 S.E.2d 852 (2015).
Defendant moved to dismiss all charges at the conclusion of the State’s
evidence and specifically argued that the charge of resisting a public officer should be
dismissed because the evidence of how defendant resisted the officer was “completely
different from the indictment[.]” This is the same argument presented on appeal
relating to the third essential element of the offense.
The indictment in this case alleged that defendant resisted a sheriff’s deputy
“by running away from [the deputy] on foot[]” while the deputy was attempting to
arrest defendant for larceny. A review of the record, however, reveals no evidence
that defendant ran away from the deputy on foot. The sheriff’s deputy named in the
indictment, Cody Boyette, testified that as he was pursuing defendant, defendant
pulled into a Dollar General store parking lot and went behind the business. Deputy
Boyette lost sight of defendant for three or four seconds and when he regained sight
of defendant, “[Deputy Boyette] saw the moped was overturned close to a ditch and
[defendant] was standing approximately 15 to 20 feet away from it.” (Emphasis
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STATE V. CROMARTIE
ARROWOOD, J., concurring in part, dissenting in part.
added). Deputy Boyette then got out of his vehicle, drew his firearm and pointed it
at defendant, and told defendant to get on the ground several times. After Deputy
Boyette instructed him to get on the ground five or six times, defendant complied.
Deputy Boyette then approached defendant and placed handcuffs on him.
Both the State and the defense elicited additional testimony from Deputy
Boyette to clarify defendant’s movements after he crashed the moped in the ditch. In
response to the State’s initial questioning, Deputy Boyette reiterated that
“[defendant] was standing 15 to 20 feet away [from the moped], and that’s where he
was at whenever I arrived from the pursuit.” The following exchange took place:
Q. So did he leave from the moped and got to that 15 to
20 feet and then he stopped; is that correct?
A. Whenever I actually got out and drew my firearm, he
had come to a complete stop.
Q. But before then he had not?
A. Yeah. By the time I laid eyes on him, he never moved
any further or any less from the time I got there. He
was looking for somewhere else to go.
Q. So he fled on foot from that up until that 15 to 20 feet
before you drew your weapon; is that correct?
A. Yes, ma’am.
During cross-examination by the defense, Deputy Boyette again testified about the
end of his pursuit of defendant. The following exchange took place:
Q. And when you exited your patrol vehicle, where was -
- where was [defendant]?
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STATE V. CROMARTIE
ARROWOOD, J., concurring in part, dissenting in part.
A. If the -- let’s see, he was -- from the point of the moped,
he was probably about 10 or 15 feet east of the moped.
Q. Okay. And was he walking?
A. He was standing still at that point in time.
Q. Okay. And then what happened?
A. Like I said, I got out of my vehicle, I drew my firearm
on Mr. Cromartie, and was commanding him to get
down on the ground.
Q. So after you got out, he didn’t move?
A. He was standing still, but he was looking around as if
he was trying to find somewhere else to run to. It was
a big, open spot in the back of Dollar General. It was
a parking lot and a ditch.
Q. So once you got out of the vehicle, he didn’t move?
A. Well he was standing still and he was looking for
somewhere to go. Reason I drew any firearm, he had
just robbed somebody and stole something, based off
the traffic I heard. And there was also people around
from where they heard us coming through town, so for
my own safety and the safety of others, that’s why I
had my firearm out.
Q. Did he run away from you?
A. No, sir.
....
[Q.] You also supervised or gave the magistrate
information about the resisting a public officer, and it
said that he did resist, delay, and obstruct Boyette, a
public officer by running away from deputy on foot.
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STATE V. CROMARTIE
ARROWOOD, J., concurring in part, dissenting in part.
A. He had got off the moped and started to run and
stopped once I actually approached him.
Q. Okay. So once you ordered him to stop, he stopped?
A. Yes.
During redirect-examination by the State, Deputy Boyette added that “[defendant]
had already traveled away from the moped and he was standing in the area, but he
was moving. He wasn’t proceeding to any other location, but he was looking around
trying to find somewhere else to go.” In response to the defense’s question on recross-
examination as to how defendant was standing in one area and moving, Deputy
Boyette explained that “[defendant] was standing still but moving his body.”
I believe it is clear from the evidence that defendant did not run away from
Deputy Boyette once Boyette regained sight of defendant behind the Dollar General.
The evidence is that defendant was standing still approximately 15 feet from the
moped. In response to defendant’s argument that this creates a fatal variance with
the indictment, which states defendant “[ran] away from Cody Boyette on foot[,]” the
State does not assert there is any direct evidence of defendant running from Deputy
Boyette on foot. Instead, the State argues that viewing the evidence in the light most
reasonable to the State, the evidence that defendant was approximately 15 feet away
from the moped supports an inference that defendant ran from Deputy Boyette after
crashing the moped in the ditch. Given the testimony from Deputy Boyette, the
State’s only witness on this charge, I do not think such an inference may be
reasonably inferred.
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STATE V. CROMARTIE
ARROWOOD, J., concurring in part, dissenting in part.
Because an indictment from resisting an officer must “indicate generally how
[the] defendant resisted the officer[,]” Henry, 237 N.C. App. at 322, 765 S.E.2d at 103,
I would find that there is a material variance between the State’s proof and the
indictment. Therefore, I vote to reverse the conviction for resisting a public officer by
running away from him on foot.
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