State v. Thompson ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-6
No. COA20-434
Filed 4 January 2022
Randolph County, 15 CRS 052178
STATE OF NORTH CAROLINA
v.
CHRISTOPHER JASON THOMPSON, Defendant.
Appeal by Defendant from judgment entered 14 March 2019 by Judge V.
Bradford Long in Randolph County Superior Court. Heard in the Court of Appeals
23 March 2021.
Attorney General Joshua H. Stein, by Special Deputy Attorney General
Kimberly D. Potter, for the State.
Mark L. Hayes for defendant-appellant.
MURPHY, Judge.
¶1 A trial court properly denies a defendant’s motion to dismiss a charge of felony
fleeing to elude arrest when there is sufficient evidence, in the light most favorable
to the State, that, inter alia, the arresting officers acted in the lawful performance of
their duties. Here, the trial court properly denied Defendant’s motion to dismiss
where there was sufficient evidence, in the light most favorable to the State, that the
officers were acting in lawful performance of their duties because they had a
reasonable articulable suspicion to detain Defendant, had probable cause to arrest
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2022-NCCOA-6
Opinion of the Court
Defendant, and complied with N.C.G.S. § 15A-401(e)(1) and (2).
BACKGROUND
¶2 On 21 May 2015, Defendant Christopher Thompson drove his son to Liberty
Elementary School. The two arrived shortly after the tardy bell rang and a school
counselor, Tracey Whatley, had secured the doors. Whatley instructed Defendant’s
son to go to the front office to obtain a tardy slip. Defendant instead instructed his
son to go to class and stated, “I am your tardy note.” After Whatley informed
Defendant his son would not be let inside the school without a tardy slip, Defendant
went to the front office with his son.
¶3 At the front office, Defendant yelled, cursed, and argued with school staff,
maintaining that his son should not “get a tardy.” Defendant’s son was taken to class
eventually without a tardy, while Defendant remained in the front office. A few
minutes later, the principal, Jordi Roman, arrived at the front office and, because
there were students in the area and Defendant was still using profanity in a raised
voice, asked Defendant to step outside of the building. Defendant did not leave right
away and continued using profanity. Roman asked Defendant to step outside a
second time, and he instructed his secretary to call the police and clear the office.
After this occurred, Defendant complied with the request to go outside. Outside the
building, Defendant continued to argue with Roman. Defendant seemingly decided
he wanted to leave with his son and requested his son be brought outside. After
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2022-NCCOA-6
Opinion of the Court
multiple requests, Defendant’s son was brought outside. Several police officers
arrived as Defendant got into his truck with his son.
¶4 Upon arrival, Liberty Police Chief David Semrad noticed that bystanders were
looking towards Defendant’s truck and that Roman was standing outside near the
truck. In light of the police call for a school disturbance and his observations, Chief
Semrad concluded Defendant was the source of the reported disturbance, approached
Defendant, and told him he was being detained. Shortly thereafter, Chief Semrad
discussed the situation with Roman, and Roman asked Chief Semrad to ban
Defendant from the property. Chief Semrad then asked Officer Jason Phillips to
obtain Defendant’s identification for the ban sheet. Officer Phillips approached
Defendant’s truck, which was running, and asked Defendant for his identification;
however, Defendant stated he was not legally required to provide his identification
and provided his full name. Officer Phillips requested Officer Hubert Elder to assist
him at Defendant’s truck, and Officer Elder told Defendant he could either provide
his license or go to jail. Defendant asked “under what North Carolina state law,” and
Officer Elder raised his voice, responding for “obstructing my investigation.”
¶5 When Chief Semrad heard Officer Elder raise his voice, he approached
Defendant’s truck because he felt they had “reached a point where . . . an arrest may
be warranted.” Chief Semrad ordered Defendant to get out of his truck. Defendant
refused to exit his truck, and Chief Semrad attempted to open the locked truck door.
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Opinion of the Court
Officer Elder stated he saw Defendant “grab for the gearshift,” so he reached inside
Defendant’s truck and attempted to obtain the keys from the ignition. Defendant
pushed Officer Elder’s arm into the truck’s dash, and Chief Semrad reached into the
truck and grabbed Defendant’s head and arm in an attempt to break Defendant’s grip
from Officer Elder. The vehicle abruptly accelerated forward, and Officer Elder
testified that “[Defendant’s] left arm momentarily came and pinned [Officer Elder] so
that [he] could not retract.” Defendant then put the vehicle in reverse and backed
up, at which point Officer Elder disengaged from the vehicle. Defendant drove away
from the school at a high speed, with the police briefly in pursuit. However, after
realizing Defendant’s son was in the truck, the police stopped pursuing Defendant.
Shortly after the police stopped pursuing Defendant, Defendant crashed his truck
and was subsequently arrested.
¶6 As a result of this incident, Defendant was indicted for feloniously “operat[ing]
a motor vehicle on a highway, . . . while fleeing and attempting to elude a law
enforcement officer, Officer H. Elder, in the lawful performance of the officer’s duties”
in violation of N.C.G.S. § 20-141.5.1 On 7 March 2018, Defendant filed a pre-trial
1 In the indictment, Defendant’s charge for violating N.C.G.S. § 20-141.5 was elevated
to a felony based on the aggravated factors of “speeding in excess of 15 miles per hour over
the legal speed limit,” “driving recklessly in violation of [N.C.G.S. §] 20-140,” and “driving
with a child under 12 years of age in the vehicle.” See N.C.G.S. § 20-141.5(b)(1), (3), & (8)
(2019).
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Opinion of the Court
Motion to Suppress all evidence obtained, arguing his attempted arrest was unlawful.
The motion was denied on 8 March 2019 based on the trial court’s finding that
Defendant’s detention was lawful. At the close of the State’s evidence, Defendant
made a motion to dismiss based on the insufficiency of the evidence. The trial court
denied Defendant’s motion to dismiss. At the close of all evidence, Defendant
renewed his motion to dismiss, and the trial court again denied his motion.
Defendant was convicted of felony fleeing to elude arrest. On 14 March 2019, the
trial court sentenced Defendant to a suspended sentence of 6 to 17 months.
Defendant timely appealed.
ANALYSIS
¶7 On appeal, Defendant argues the trial court erred in denying his motion to
dismiss because the State did not present sufficient evidence that the officers were
acting in the lawful performance of their duties.2 Specifically, Defendant argues the
officers acted unlawfully because (A) “they had no reasonable suspicion to detain
[Defendant]”; (B) “they had no probable cause to arrest [Defendant]”; and (C) “the
arrest, even if it was based on probable cause, did not comply with [N.C.G.S.] § 15A-
Defendant was also indicted on multiple counts of assault on a law enforcement officer
but was found not guilty of the assault charges. Defendant does not raise any challenge
related to the indictments on appeal.
2 We note that Defendant does not challenge the denial of his Motion to Suppress on
appeal.
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401.” We disagree.3
¶8 “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).
Upon [the] defendant’s motion for dismissal, the question
for [us] is whether there is substantial evidence (1) of each
essential element of the offense charged, or of a lesser
offense included therein, and (2) of [the] defendant’s being
the perpetrator of such offense. If so, the motion is properly
denied.
State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455, cert. denied, 531 U.S. 890,
148 L. Ed. 2d 150 (2000). “In reviewing challenges to the sufficiency of evidence, we
must view the evidence in the light most favorable to the State, giving the State the
benefit of all reasonable inferences . . . . Contradictions and discrepancies do not
warrant dismissal of the case but are for the jury to resolve.” State v. Scott, 356 N.C.
591, 596, 573 S.E.2d 866, 869 (2002) (citations omitted).
¶9 Defendant was convicted of felonious fleeing to elude arrest pursuant to
N.C.G.S. § 20-141.5. N.C.G.S. § 20-141.5 provides in relevant part:
(a) It shall be unlawful for any person to operate a motor
vehicle on a street, highway, or public vehicular area while
fleeing or attempting to elude a law enforcement officer
who is in the lawful performance of his duties. Except as
provided in subsection (b) of this section, violation of this
3 We emphasize that we come to our conclusion under the standard of review
applicable to motions to dismiss. See State v. Mahatha, 267 N.C. App. 355, 358, 832 S.E.2d
914, 918 (2019) (applying the standard of review for a motion to dismiss for insufficiency of
the evidence, and not discussing the standard of review for a motion to suppress).
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Opinion of the Court
section shall be a Class 1 misdemeanor.
(b) If two or more of the following aggravating factors are
present at the time the violation occurs, violation of this
section shall be a Class H felony.
N.C.G.S. § 20-141.5(a)-(b) (2019) (emphasis added). We address only whether the
officers were in the lawful performance of their duties as it is the only element that
Defendant challenges on appeal. See N.C. R. App. P. 28 (“Issues not presented and
discussed in a party’s brief are deemed abandoned.”).
A. Reasonable Articulable Suspicion
¶ 10 Defendant first argues the police officers departed from the lawful performance
of their duties because they lacked reasonable articulable suspicion to detain him.
¶ 11 “The Fourth Amendment protects individuals against unreasonable searches
and seizures. The North Carolina Constitution provides similar protection.” State v.
Hernandez, 208 N.C. App. 591, 597, 704 S.E.2d 55, 59 (2010) (marks and citations
omitted), disc. rev. denied, 365 N.C. 86, 731 S.E.2d 829 (2011). “‘[B]rief investigatory
detentions such as those involved in the stopping of a vehicle’ are subject to Fourth
Amendment protections.” Mahatha, 267 N.C. App. at 358, 832 S.E.2d at 918 (quoting
State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994)). “A police officer may
effect a brief investigatory seizure of an individual where the officer has reasonable,
articulable suspicion that a crime may be underway.” State v. Barnard, 184 N.C.
App. 25, 29, 645 S.E.2d 780, 783 (2007), aff’d, 362 N.C. 244, 658 S.E.2d 643, cert.
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denied, 555 U.S. 914, 172 L. Ed. 2d 198 (2008). “To determine whether this
reasonable suspicion exists, a court must consider the totality of the circumstances[.]”
State v. Kincaid, 147 N.C. App. 94, 97, 555 S.E.2d 294, 298 (2001) (citations and
marks omitted). Reasonable articulable suspicion “must be based on specific and
articulable facts, as well as the rational inferences from those facts, as viewed
through the eyes of a reasonable, cautious officer, guided by his experience and
training.” Watkins, 337 N.C. at 441, 446 S.E.2d at 70; see also State v. Fleming, 106
N.C. App. 165, 171, 415 S.E.2d 782, 785 (1992) (holding a violation of the Fourth
Amendment occurred when the detaining officer “had only a generalized suspicion
that the defendant was engaged in criminal activity, based upon the time, place, and
the officer’s knowledge that [the] defendant was unfamiliar to the area”).
¶ 12 Here, Chief Semrad had a “reasonable, articulable suspicion that a crime”—
specifically, disorderly conduct at a school in violation of N.C.G.S. § 14-288.4(a)(6)—
“may be underway.” Barnard, 184 N.C. App. at 29, 645 S.E.2d at 783. N.C.G.S. § 14-
288.4(a)(6) reads:
(a) Disorderly conduct is a public disturbance intentionally
caused by any person who . . . :
(6) Disrupts, disturbs or interferes with the teaching of
students at any public or private educational institution or
engages in conduct which disturbs the peace, order or
discipline at any public or private educational institution
or on the grounds adjacent thereto.
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Opinion of the Court
N.C.G.S. § 14-288.4(a)(6) (2019). Our Supreme Court has interpreted this language,
stating “[w]hen the words ‘interrupt’ and ‘disturb’ are used in conjunction with the
word ‘school,’ they mean to a person of ordinary intelligence a substantial interference
with, disruption of and confusion of the operation of the school in its program of
instruction and training of students there enrolled.” In re Eller, 331 N.C. 714, 718,
417 S.E.2d 479, 482 (1992). We recently observed that this rule from In re Eller
applies to both parts of the disjunctive—“[d]isrupts, disturbs or interferes with the
teaching of students at any public or private educational institution” and “engages in
conduct which disturbs the peace, order or discipline at any public or private
educational institution or on the grounds adjacent thereto”—in N.C.G.S. § 14-
288.4(a)(6). See State v. Humphreys, 275 N.C. App. 788, 793, 853 S.E.2d 789, 793
(2020) (citing In re Eller, 331 N.C. at 718, 417 S.E.2d at 482; In re Grubb, 103 N.C.
App. 452, 453-54, 405 S.E.2d 797, 798 (1991); In re Brown, 150 N.C. App. 127, 129-
131, 562 S.E.2d 583, 585-586 (2002); In re Pineault, 152 N.C. App. 196, 199, 566
S.E.2d 854, 857, disc. rev. denied, 356 N.C. 302, 570 S.E.2d 728 (2002); In re M.G.,
156 N.C. App. 414, 416, 576 S.E.2d 398, 400-01 (2003); In re S.M., 190 N.C. App. 579,
582-83, 660 S.E.2d 653, 655-56 (2008)).
¶ 13 Chief Semrad received information about a reported “disturbance” at the
school, which “was almost unheard of with [Roman]” as he “had always gone out of
his way not to involve law enforcement at the school.” Upon his arrival at the school,
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Opinion of the Court
Chief Semrad noticed parents standing and looking towards Defendant’s truck, as
well as someone inside the school looking out the window towards the truck, Roman
standing near the truck, and Defendant “staring intently at [Chief Semrad] in the
side view mirror.” Chief Semrad approached Defendant’s vehicle, and Defendant
asked Chief Semrad if he was being detained. After noting that the police were
alerted that there was “a disturbance at the school and people were staring at the
vehicle,” Chief Semrad concluded Defendant “was the person involved in the
disturbance” and “told [Defendant] that he was not free to leave, that he was
detained.”
¶ 14 Furthermore, when asked whether he had intended to charge Defendant with
anything after he detained him, Chief Semrad testified, “we were still investigating
the disturbance. We’d only had – or I’d only had a very brief conversation with an
upset principal. I needed more specifics, more details, and I needed to know who else
was involved and what the entire situation was.” Chief Semrad instructed the other
officers to obtain Defendant’s identification while he “continued talking to Principal
Roman trying to gather information in regard[] to . . . disorderly conduct, and that
involves disturbing the school, cussing in the school, threatening actions, threatening
behavior, disrupting staff, disrupting students, and that’s definitely what I was
hearing at the time from Mr. Roman.” Chief Semrad was asked about his purpose in
detaining Defendant and testified to the following:
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[CHIEF SEMRAD:] It was clear to me that the school was
still disrupted.
[THE STATE:] And you talked about the disturbance at
school. You’ve been asked about your familiarity with
certain laws this morning -- or this afternoon. Are you
familiar with the law regarding public disturbance at
school?
[CHIEF SEMRAD:] I believe that’s North Carolina General
Statute 14-288, Section 4 of that statute.
[THE STATE:] Was that something that you were
investigating at the time?
[CHIEF SEMRAD:] Yes, sir.
¶ 15 Considering the evidence in the light most favorable to the State, under the
totality of the circumstances Chief Semrad had a reasonable articulable suspicion
that there was an ongoing “substantial interference with, disruption of and confusion
of the operation of the school in its program of instruction and training of students
there enrolled” in violation of N.C.G.S. § 14-288.4(a)(6).4 In re Eller, 331 N.C. at 718,
417 S.E.2d at 482 (1992). Chief Semrad lawfully detained Defendant for a brief
investigatory stop. Consequently, for the purpose of the motion to dismiss,
Defendant’s detention was lawful and Chief Semrad was lawfully performing his
duties.
4 Defendant also argues that we should adopt a rule holding that Terry stops for a
misdemeanor that has already been completed are per se unreasonable. However, viewing
the evidence in the light most favorable to the State, the school disturbance was ongoing at
the time of Defendant’s detention. As a result, we need not reach this question.
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Opinion of the Court
B. Probable Cause
¶ 16 Defendant next argues that, even if the initial detention was lawful, Chief
Semrad “still acted beyond the scope of his duties by arresting [Defendant]” without
probable cause.
¶ 17 Under N.C.G.S. § 15A-401(b)(1), “[a]n officer may arrest without a warrant any
person who the officer has probable cause to believe has committed a criminal offense
. . . in the officer’s presence.” N.C.G.S. § 15A-401(b)(1) (2019). “An arrest is
constitutionally valid whenever there exists probable cause to make it.” State v.
Chadwick, 149 N.C. App. 200, 202, 560 S.E.2d 207, 209, disc. rev. denied, 355 N.C.
752, 565 S.E.2d 672 (2002).
Probable cause is defined as those facts and circumstances
within an officer’s knowledge and of which he had
reasonably trustworthy information which are sufficient to
warrant a prudent man in believing that the suspect had
committed or was committing an offense. The [United
States] Supreme Court has explained that probable cause
does not demand any showing that such a belief be correct
or more likely true than false. A practical, nontechnical
probability that incriminating evidence is involved is all
that is required. A probability of illegal activity, rather
than a prima facie showing of illegal activity or proof of
guilt, is sufficient.
State v. Biber, 365 N.C. 162, 168-69, 712 S.E.2d 874, 879 (2011) (marks and citations
omitted).
¶ 18 Our Supreme Court has held that
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when a law enforcement officer, by word or actions,
indicates that an individual must remain in the officer’s
presence or come to the police station against his will, the
person is for all practical purposes under arrest if there is
a substantial imposition of the officer’s will over the
person’s liberty.
See State v. Zuniga, 312 N.C. 251, 260, 322 S.E.2d 140, 145 (1984). Applying this
principle here, an attempted arrest of Defendant occurred when Chief Semrad
instructed Defendant to leave the truck, Defendant refused, and Chief Semrad and
Officer Elder forcibly attempted to remove Defendant’s keys from the ignition. These
actions amounting to an attempted arrest occurred within approximately six seconds.
After this sequence of events, Chief Semrad and Officer Elder, by their actions, had
indicated that Defendant would be coming to the police station against his will. Both
Chief Semrad and Officer Elder were attempting to arrest Defendant at this point.
See State v. Tilley, 44 N.C. App. 313, 317, 260 S.E.2d 794, 797 (1979) (finding there
was more than one arresting officer based on the facts of the case.”).
¶ 19 Additionally, although Defendant’s argument focuses on Chief Semrad lacking
the authority to arrest him, the language of the indictment states Defendant was
fleeing to elude Officer Elder, not Chief Semrad.5 Despite both officers attempting to
arrest Defendant, we focus only on the attempted arrest by Officer Elder here because
Defendant was only indicted for fleeing to elude Officer Elder.
5 We note that Defendant does not raise any argument related to the indictments.
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¶ 20 N.C.G.S. § 20-29 provides:
[a]ny person operating or in charge of a motor vehicle,
when requested by an officer in uniform . . . who shall
refuse to write his name for the purpose of identification or
to give his name and address and the name and address of
the owner of such vehicle, . . . or who shall refuse, on
demand of such officer or such other person, to produce his
license . . . shall be guilty of a Class 2 misdemeanor.
N.C.G.S. § 20-29 (2019). The Record demonstrates Officer Phillips and Officer Elder
both made a lawful request for Defendant’s driver’s license pursuant to N.C.G.S. §
20-29. Defendant refused these requests and instead stated his full name.
Defendant’s refusal to comply with the officers’ request under N.C.G.S. § 20-29
constituted a misdemeanor.6 Since a misdemeanor under N.C.G.S. § 20-29 occurred
within Officer Phillips’ and Officer Elder’s presence, for the purpose of the motion to
dismiss, Officer Elder had probable cause to arrest Defendant pursuant to N.C.G.S.
§ 15A-401(b)(1).
6Defendant argues that he complied with N.C.G.S. § 20-29 by providing his name.
We note that this statute lists several additional items not relevant to the issue here.
However, each item listed in N.C.G.S. § 20-29 begins with “or who shall.” N.C.G.S. § 20-29
(2019). Contrary to Defendant’s reading, a plain reading of this language indicates that each
action following “or who shall” is a Class 2 Misdemeanor. See id.; see also State v. Hooper,
358 N.C. 122, 125, 591 S.E.2d 514, 516 (2004) (citations and marks omitted) (“The primary
goal of statutory construction is to effectuate the purpose of the legislature in enacting the
statute. The first step in determining a statute’s purpose is to examine the statute’s plain
language. Where the language of a statute is clear and unambiguous, there is no room for
judicial construction and the courts must construe the statute using its plain meaning.”). As
a result, Defendant did not comply with N.C.G.S. § 20-29 by providing his name when his
license was requested.
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C. N.C.G.S. § 15A-401(e)
¶ 21 Finally, Defendant argues the police officers failed to comply with N.C.G.S. §
15A-401(e) by failing to provide Defendant with notice of their authority and purpose
for arresting him, and improperly using force to enter his vehicle. Defendant
maintains that, as a result, the officers were no longer in the lawful performance of
their duties when they attempted to arrest him and use force to enter his vehicle.
¶ 22 N.C.G.S. § 15A-401(e) provides in relevant part:
(1) A law-enforcement officer may enter private premises
or a vehicle to effect an arrest when:
a. . . . the officer is authorized to arrest a person without a
warrant or order having been issued,
b. The officer has reasonable cause to believe the person to
be arrested is present, and
c. The officer has given, or made reasonable effort to give,
notice of his authority and purpose to an occupant thereof,
unless there is reasonable cause to believe that the giving
of such notice would present a clear danger to human life.
(2) The law-enforcement officer may use force to enter the
premises or vehicle if he reasonably believes that
admittance is being denied or unreasonably delayed, or if
he is authorized under subsection (e)(1)c to enter without
giving notice of his authority and purpose.
N.C.G.S. § 15A-401(e) (2019).
¶ 23 Officer Elder told Defendant to hand his license over or he would go to jail.
According to Officer Elder’s testimony, Defendant then asked, “under what North
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Carolina state law,” to which Officer Elder replied for “obstructing my investigation”
and “attempted to tell [Defendant] that it was [N.C.G.S. §] 14-223. Resisting and
obstructing.” Officer Elder testified that he “was also going to add that it was under
[N.C.G.S. §] 20-29 which requires if you’re operating a motor vehicle and a law
enforcement officer requests your ID, you must give it,” but Defendant “attempted to
talk over [Officer Elder and] admonished [him].” In the light most favorable to the
State, the requirements of N.C.G.S. § 15A-401(e)(1)(a)-(b) are satisfied here because
Officer Elder was authorized to arrest Defendant without a warrant pursuant to
N.C.G.S. § 20-29 and N.C.G.S. § 15A-401(b)(1), as discussed in Part B above, and
knew Defendant was present. Additionally, Officer Elder made reasonable efforts to
give Defendant notice that he was going to be arrested for “unlawfully resist[ing],
delay[ing] or obstruct[ing] a public officer in discharging or attempting to discharge
a duty of his office” as required under N.C.G.S. § 15A-401(e)(1)(c). N.C.G.S. § 14-223
(2019).
¶ 24 Further, Chief Semrad testified he instructed Defendant to step out of his
vehicle and Defendant refused. Chief Semrad then attempted to open Defendant’s
door; however, it was locked, and Defendant again refused to get out of his vehicle.
Thereafter, Officer Elder testified he saw Defendant grab the gearshift, “[a]nd in
order to try and prevent any escape [Officer Elder] [instinctively] reached for the
keys[.]” Chief Semrad and Officer Elder both testified that Defendant refused their
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entry into his vehicle on two occasions and Officer Elder believed he needed to
confiscate Defendant’s keys to prevent Defendant’s escape, and the jury could have
concluded that the officers reasonably believed admittance was being denied or
unreasonably delayed. Accordingly, for the purpose of the motion to dismiss and in
the light most favorable to the State, the officers were authorized to “use force to enter
the . . . vehicle” and did not act unlawfully in doing so. N.C.G.S. § 15A-401(e)(2)
(2019).
¶ 25 Viewing the evidence in the light most favorable to the State, the issue of
whether the officers were performing their lawful duties was “sufficient for jury
consideration.” Scott, 356 N.C. at 597, 573 S.E.2d at 869. The trial court did not err
by denying Defendant’s motion to dismiss. See Mahatha, 267 N.C. App. at 360, 832
S.E.2d at 919 (holding the trial court did not err by denying the defendant’s motion
to dismiss for insufficient evidence when the officer “was lawfully performing his
duties at the time of the stop”).
CONCLUSION
¶ 26 In the light most favorable to the State, there was sufficient evidence that the
officers acted within the lawful performance of their duties, satisfying the challenged
element of N.C.G.S. § 20-141.5(a). Accordingly, the trial court did not err in denying
Defendant’s motion to dismiss the charge of felony fleeing to elude arrest.
NO ERROR.
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Judges DIETZ and GORE concur.