Opinion
No. COA15–795.
01-05-2016
STATE of North Carolina v. Troy KORNYA.
Attorney General Roy Cooper, by Assistant Attorney General Shawn R. Evans, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender, Jillian C. Katz, for defendant-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Shawn R. Evans, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender, Jillian C. Katz, for defendant-appellant.
Opinion
Appeal by defendant from judgment entered 4 March 2015 by Judge Robert G. Horne in Buncombe County Superior Court. Heard in the Court of Appeals 3 December 2015.
TYSON, Judge.
Troy Kornya (“Defendant”) appeals from judgment entered after a jury found him guilty of resisting a public officer and injury to personal property causing damage of more than $200. We find no error in Defendant's convictions or the judgment entered thereon.
I. Background
On 7 July 2014, Defendant and Logan Mason (“Mason”), a retired U.S. Marine Corps Staff Sergeant, left a bar located in Black Mountain, North Carolina, around 2:00 a.m. As Defendant and Mason walked eastbound on East State Street, the pair passed by an area of old buildings, some of which were vacant or abandoned.
Mason testified a pile of trash was located next to one of the abandoned buildings, which included two American flags discarded among the rubble. It is unclear from the transcript whether the flags were among the trash or leaning against the abandoned building. Mason's testimony was consistent with the affidavit Defendant filed in support of his motion to suppress that the flags were located among the trash. The State presented evidence that Defendant stated to police officers that he and Mason found one flag leaning against the abandoned building and that one had fallen to the ground.
Both Defendant and Mason were offended by the flags being disgraced by their condition. The two men picked up the flags and intended to “re-home” them. Each man carried one of the flags and continued to walk down East State Street. The flags were attached with zip-ties to an aluminum flag pole, donned at the top with a gold eagle.
That morning, Black Mountain Police Sergeant Clifford Gray (“Sergeant Gray”) was on routine patrol in the east side of the business district of Black Mountain. While traveling southbound on Flat Creek Road, Sergeant Gray made a right hand turn onto East State Street heading westbound. While traveling down East State Street, Sergeant Gray noticed Defendant and Mason walking eastbound along the sidewalk.
Sergeant Gray noticed Defendant and Mason were each carrying a large American flag attached to a long flag pole. As Sergeant Gray passed by, he realized the flags looked “very similar” to the flags the town of Black Mountain places along the sidewalk during the holidays, including the Fourth of July. Sergeant Gray continued travelling down East State Street a short distance through the nearby area of town where the town flags remained on display. Sergeant Gray observed some town-owned flags, which in his opinion did “indeed look to be the same flags” he had seen Defendant and Mason carrying.
Sergeant Gray turned his marked police cruiser around and traveled eastbound looking for Defendant and Mason. Sergeant Gray turned left on Flat Creek Road, and saw Defendant and Mason walking on the sidewalk by a Super 8 Motel. Sergeant Gray parked his vehicle at the motel, alighted from the car, and approached the two men. Sergeant Gray asked the men “How are you doing this morning? What's going on?” At trial, Sergeant Gray testified that he had no knowledge of any flags being reported stolen.
Sergeant Gray asked Defendant and Mason where they obtained the two flags they were carrying. Defendant responded they had found the flags leaning up against an old gas station building and that they were taking them home because they felt that the flags had been disrespected.
Mason testified after Sergeant Gray inspected the flags, he told Defendant and Mason the flags belonged to the town, and he would be confiscating them, but that there was “no harm and no foul.” Mason testified that as he and Defendant started to walk away from the scene, they were “immediately recalled back” by Sergeant Gray, who asked for Defendant's and Mason's identification.
It is unclear from the testimony when Sergeant Gray asked this question, but both Defendant and Mason testified that, at some point, both men asked Sergeant Gray if they were free to leave, and he responded that this was a detention and they were not free to leave. Mason testified that he did not feel he was free to leave throughout the entire encounter with Sergeant Gray.
Both Defendant and Mason refused to provide identification, asking why they had to do so. Sergeant Gray told the men the reason he needed them to show identification is because they were still suspects in the misdemeanor larceny of two American flags.
Sergeant Gray observed Defendant becoming increasingly combative, so he requested backup officers to come to his location. A short time later, Black Mountain Police Officer Leticia Guffey (“Officer Guffey”) arrived in her marked police car. Officer Guffy testified that after continued requests for identification, Defendant began screaming at Sergeant Gray. Officer Guffy assisted Sergeant Gray in handcuffing Defendant on the hood of the vehicle. They told him that he was under arrest for resisting a police officer because he would not comply with verbal commands or put his arms behind his back.
Sergeant Gray and Officer Guffey attempted to place Defendant into the back of Officer Guffey's police car, but Defendant continued to resist. Defendant continued to kick and strike at Officer Guffey. Defendant's resistance escalated to the point that Officer Guffey had to use her Taser on Defendant twice. The Taser did not appear to register any effects on Defendant. He told Officer Guffey she needed a better Taser, even suggesting a different brand to her as he continued to resist.
Sergeant Gray and Officer Guffey eventually managed to place Defendant in the back of Officer Guffey's car. While in the police car, Defendant kicked the car's rear window twice, causing the glass to shatter and a window frame to bend. Glass fragments struck Officer Guffey, causing minor injury for which she did not seek medical attention. The damage to the police car and window amounted to over $800.00 in repairs.
At trial, Black Mountain Public Works Director Jamie Matthews (“Matthews”) identified the flags as town property. He noted the similarity between the flags Defendant and Mason were carrying and the town flags, particularly the method of how they were assembled. Matthews observed similar drill holes through the conduit poles at specific locations, zip ties through those holes attaching the flags to the poles, and an eagle atop the pole, all of which was consistent in construction to the flags owned by the Town of Black Mountain.
On cross-examination, Matthews conceded there were no barcodes, serial numbers, or identifying marks nor did the poles have any unique characteristics. Matthews testified similar American flags and conduit poles can be found and purchased elsewhere.
Defendant was charged by a Magistrate's order of (1) one count of injury to personal property causing damage of more than $200; (2) one count of resisting, obstructing or delaying a public officer; (3) two counts of assault on a government official; and (4) one count of misdemeanor larceny.
A. Defendant's Motion to Suppress
Defendant waived appointed counsel and represented himself pro se. Prior to trial, Defendant filed a motion to suppress, but failed to attach any affidavits to support his motion. Judge Horne summarily dismissed the motion, since it was filed without supporting affidavits as required pursuant to N.C. Gen.Stat. § 15A–977(a) (2013). During jury selection, Defendant filed a second motion to suppress with accompanying affidavits. Judge Horne noted on the record that the motion had not been timely filed, but that the court would, in its discretion, address the motion to suppress upon appropriate objection at trial.
The State called Sergeant Gray to testify. The State examined the witness, chronologically discussing the events that took place. When the examination reached the topic of Defendant's actions in the back seat of the police car, Defendant objected, stating that he “[w]ish[ed] to be heard as to the probable cause for the arrest.”
Defendant argued Sergeant Gray lacked probable cause for the initial stop because he stated the reason for Defendant's arrest was obstruction. Judge Horne responded:
You did file a motion to suppress earlier today and attached an affidavit to that and supplement that with a further affidavit. I indicated earlier today that while there may have been some timeliness issues to that filing, in my discretion I was going to allow you to be heard on your motion to suppress. I'm going to take—you've couched it in terms of probable cause to arrest, and in fact I'm going to hear it as to the motion to suppress.
The court allowed Defendant an opportunity to voir dire the witness outside the presence of the jury.
Following Defendant's voir dire of Sergeant Gray, the trial court issued oral findings of fact and conclusions of law. As relevant to the question presented by this appeal, the trial court found as fact: (1) Sergeant Gray was on duty on 7 July 2014; (2) at approximately 2:00 am, he observed Defendant and Mason walking down the road carrying a pole with an American flag attached; (3) that at the time, the town was displaying flags for the 4th of July holiday throughout a portion of the town streets; (4) it appeared to the officer the flags Defendant and Mason were carrying to be similar or the same flags and poles that were the town [sic] property and out on display; (5) that Sergeant Gray turned around and established contact with both individuals; (6) Sergeant Gray approached Defendant and Mason and asked what they were doing; (7) at the time, Sergeant Gray was in uniform and driving a marked police car; (8) Sergeant Gray told Defendant he was beginning an investigation into the larceny of town property; (9) Sergeant Gray asked Defendant to produce identification; (10) Defendant refused to produce identification; (11) Defendant became somewhat belligerent with the officer; (12) Defendant continued to refuse to cooperate with the officer, and his level of belligerence increased; and (13) Sergeant Gray was discharging a lawful duty of his office, being the investigation of a possible larceny.
Based on these findings of fact, the trial court concluded as a matter of law that the initial stop of Defendant and Mason was “not a stop of a vehicle as the officer simply approached [Defendant] and asked ... what they were doing.” However, the trial court held, the stop “did rise to the level of detention as the encounter pursued.” As to Defendant's arrest, the trial court held “[t]hat the Defendant by his actions and his belligerence resisted, obstructed and delayed the officer in the performance of his lawful duty.” The trial court concluded: “The initial encounter was not a stop of [Defendant] and [Mason] ... based upon the officer's observation and his experience that he had a reasonable articulable suspicion to prolong the encounter, and in fact it became a detention of [Defendant and Mason].... [Sergeant Gray] had a reasonable articulable suspicion initially and then probable cause to justify the initial detention and the subsequent arrest.”
Following the trial court's findings of fact and conclusions of law, the court denied Defendant's motion to suppress, and Sergeant Gray's testimony resumed.
B. Verdicts and Sentencing
Defendant was convicted of one count of resisting a public officer and one count of injury to personal property, valued over $200. Defendant was acquitted on one count of assault on a government official. The jury hopelessly deadlocked as to the second count of assault on a government official and the lone count of misdemeanor larceny. The court declared a mistrial for the two counts, in which the jury deadlocked, and entered final judgment against the Defendant for the counts of injury to personal property and resisting a public officer.
On the charge of injury to personal property, Defendant was sentenced to 10 days imprisonment. On the charge of resisting a public officer, Defendant was sentenced to 45 days imprisonment. Both sentences were suspended for 18 months of supervised probation. Defendant was also required to perform 48 hours of community service and pay restitution to the Town of Black Mountain in the amount of $805.95 for the damage to the police vehicle.
Defendant gave oral notice of appeal in open court and additionally filed a written notice of appeal.
II. Issue
In his sole argument, Defendant contends the trial court erred in denying his motion to suppress.
III. Motion to Suppress
Defendant argues the trial court reversibly erred in denying his motion to suppress. He asserts the trial court erred in concluding the initial encounter between Sergeant Gray and Defendant was not a stop within the Fourth Amendment to the Constitution of the United States. Defendant additionally contends the trial court erred in concluding Sergeant Gray had sufficient reasonable suspicion to prolong the stop once Defendant and Mason had relinquished control of the flags, and Defendant was justified in resisting his arrest because no reasonable suspicion existed.
A. Standard of Review
Appellate review of a suppression order is “strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citation omitted). When “the trial court's findings of fact are not challenged on appeal, they are deemed to be supported by competent evidence and are binding on appeal.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011).
“[T]he trial court's conclusions of law are reviewed de novo.” State v. Hernandez, 170 N.C.App. 299, 304, 612 S.E.2d 420, 423 (2005) (citations omitted). “ ‘Under a de novo review, the court considers the matter anew and freely substitutes its own judgment’ for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (citations omitted). The conclusions of law “must be legally correct, reflecting a correct application of applicable legal principles to the facts found.” State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997) (citation omitted).
B. Analysis
Defendant does not challenge any findings of fact made by the trial court. All findings of fact are deemed to be supported by competent evidence. Biber, 365 N.C. at 168, 712 S.E.2d at 878. Defendant argues the trial court erred in concluding as a matter of law: (1) Sergeant Gray's initial conversation with Defendant was a consensual one; (2) Sergeant Gray had a reasonable, articulable suspicion to prolong the encounter after the flags had been relinquished to Sergeant Gray; and (3) Defendant's failure to provide identification supplied probable cause for his arrest for resisting a public officer.
1. Consensual Nature of the Initial Stop of Defendant
Defendant contends the initial conversation between himself and Sergeant Gray constituted a seizure within the meaning of that term in the Fourth Amendment to the Constitution of the United States. We disagree.
The Fourth Amendment to the Constitution of the United States “protects ‘against unreasonable searches and seizures' of (among other things) the person.” Virginia v. Moore, 553 U.S. 164, 168, 170 L.Ed.2d 559, 565 (2008). The Fourth Amendment “is applicable to the states through the Due Process Clause of the Fourteenth Amendment.” State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69 (1994) (citing Mapp v. Ohio, 367 U.S. 643, 655, 6 L.Ed.2d 1081, 1090 (1961)).
The Supreme Court of the United States has held that a law enforcement officer does not offend the Fourth Amendment merely by approaching an individual in a public place and by putting questions to him or her. Florida v. Royer, 460 U.S. 491, 497, 75 L.Ed.2d 229, 236 (1983). An encounter between police and a defendant “will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.” Florida v. Bostick, 501 U.S. 429, 434, 115 L.Ed.2d 389, 398 (1991).
A person is seized under the Fourth Amendment when, “by means of physical force or a show of authority,” the defendant's freedom of movement is restrained. State v. Farmer, 333 N.C. 172, 187, 424 S.E.2d 120, 129 (1993) (quoting United States v. Mendenhall, 446 U.S. 544, 553, 64 L.Ed.2d 497, 509 (1980)). As there was no physical force employed by Sergeant Gray during the initial encounter with Defendant, a seizure only occurred if, “taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” State v. Williams, 201 N.C.App. 566, 569, 686 S.E.2d 905, 907 (2009) (quoting Bostick, 501 U.S. at 437, 115 L.Ed.2d at 400) (internal quotation marks omitted).
The Supreme Court of the United States and this Court have held:
When there has been no physical force or attempt to leave, examples of circumstances that might indicate a seizure include ‘the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.’
State v. Knudsen, 229 N.C.App. 271, 282, 747 S.E.2d 641, 649 (2013) (quoting Kaupp v. Texas, 538 U.S. 626, 630, 155 L.Ed.2d 814, 820 (2003)).
In this case, the testimony tended to show Sergeant Gray approached Defendant and Mason and asked “how are you doing this morning? What's going on?” At the time the encounter began, Sergeant Gray was the only officer present, did not display any weapon, and did not touch Defendant or Mason. Sergeant Gray's query to Defendant and Mason, “how are you doing this morning” and “what's going on,” is not language indicating that compliance might be compelled. Knudsen at 282, 747 S.E.2d at 649. Sergeant Gray's conduct during the initial interaction with Defendant would not “have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Williams, 201 N.C.App. at 569, 686 S.E.2d at 907. The initial contact with Defendant was not a seizure within the Fourth Amendment. Defendant's argument is overruled.
2. Reasonable Suspicion to Prolong the Encounter
Defendant argues reasonable suspicion for a stop dissipated when Sergeant Gray heard Defendant's and Mason's explanation for their activity and took possession of the flags. He argues the trial court erred in denying his motion to suppress, because there was no reasonable, articulable suspicion to prolong the encounter with Defendant after the flags had been relinquished. We disagree.
In order to initiate a stop, or prolong a consensual encounter into a nonconsensual seizure, an officer must have a “reasonable, articulable suspicion that criminal activity is afoot[.]” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 675, 145 L.Ed.2d 570, 576 (2000). A reasonable suspicion has been defined by the Supreme Court of the United States as “some minimal level of objective justification.” INS v. Delgado, 466 U.S. 210, 217, 80 L.Ed.2d 247, 255 (1984). In order to meet the reasonable suspicion threshold, “[t]he officer, of course, must be able to articulate something more than an inchoate and unparticularized suspicion or hunch.” United States v. Sokolow, 490 U.S. 1, 7, 104 L.Ed.2d 1, 10 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 27, 20 L.Ed. 889, 909 (1968)) (internal quotation marks omitted). “The concept of reasonable suspicion ... is not ‘readily, or even usefully, reduced to a neat set of legal rules.’ “ Sokolow, 490 U.S. at 7, 104 L.Ed.2d at 10 (citation omitted). Rather, in determining if reasonable suspicion existed, the Court must account for “the totality of the circumstances—the whole picture.” United States v. Cortez, 449 U.S. 411, 417, 66 L.Ed.2d 621, 629 (1981).
Sergeant Gray noticed Defendant and Mason walking along the street, at 2:00 am just days after the 4th of July holiday, carrying two American flags. Sergeant Gray believed the flags looked “very similar” to those displayed by the Town of Black Mountain along the sidewalk during the holidays, including the Fourth of July. Sergeant Gray then travelled to a nearby area of town and observed town-owned flags which, in his opinion, did “indeed look to be the same flags” he had seen Defendant and Mason carrying.
In this case, the totality of the circumstances rises to the minimal level of objective justification required for a reasonable articulable suspicion under the Fourth Amendment. Sergeant Gray was allowed to continue the encounter with Defendant past the point when Defendant and Mason relinquished the flags.
While the initial encounter between Defendant and Sergeant Gray was consensual, the trial court concluded, the encounter “did rise to the level of detention as the encounter pursued.” However, the fact that Defendant and Mason surrendered the flags to Sergeant Gray is not controlling, as there was still reasonable suspicion to believe that Defendant was a suspect in a possible larceny of town property. Sergeant Gray's recovery of the flags he believed had been stolen does not change the fact he reasonably suspected Defendant had wrongfully taken them. Sergeant Gray's suspicions, reinforced by his observation of the town owned flags, rose to the required “minimal level of objective justification” to prolong the stop past the point at which Defendant and Mason relinquished control of the flags. Delgado, 466 U.S. at 217, 80 L.Ed.2d at 255. Defendant's argument is overruled.
3. Probable Cause to Arrest Defendant for Resisting a Public Officer
Defendant argues the trial court erred in concluding as a matter of law that Defendant's failure to provide identification supplied probable cause for his arrest for resisting a public officer. We disagree.
North Carolina's resisting, delaying, or obstructing a public officer statute, codified at N.C. Gen.Stat. § 14–223, provides: “If any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a Class 2 misdemeanor.” N.C. Gen.Stat. § 14–223 (2013). As this Court held, “the failure to provide information about one's identity during a lawful stop can constitute resistance, delay, or obstruction within the meaning of N .C. Gen.Stat. § 14–223.” State v. Friend, ––– N.C.App. ––––, ––––, 768 S.E.2d 146, 148 (2014).
As Defendant correctly notes in his brief, “[t]here are, of course, circumstances where one would be excused from providing his or her identity to an officer, and, therefore, not subject to prosecution under N.C. Gen.Stat. § 14–223.” Id. One such circumstance is an assertion of the “Fifth Amendment's protection against compelled self-incrimination[, which] might justify a refusal to provide such information.” Id.
However, as the Supreme Court of the United States has observed, “[a]nswering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances.” Id. (citing Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 191, 124 S.Ct. 2451, 2461, 159 L.Ed.2d 292, 306 (2004)).
In this case, Defendant failed to make any showing he was justified in refusing to provide his identification to Sergeant Gray. Sergeant Gray observed Defendant walking down the street at 2:00 am carrying large flags that, in the Sergeant's opinion, looked very much like the town-owned flags. Sergeant Gray possessed a reasonable, articulable suspicion that criminal activity was afoot, which had not dissipated simply by Defendant and Mason relinquishing control of the flags.
Defendant refused to provide identification to law enforcement and refused to state his identity. Defendant acted with increasing belligerence as Sergeant Gray attempted to investigate the possible larceny of the flags. Considering the circumstances herein presented, Defendant has not shown this to be a situation “where one would be excused from providing his or her identity to an officer, and, therefore, not subject to prosecution under N.C. Gen.Stat. § 14–223.” Friend, ––– N.C.App. at ––––, 768 S.E.2d at 148. Defendant's argument is overruled.
IV. Conclusion
The trial court did not err in denying Defendant's motion to suppress. The initial encounter between Sergeant Gray and Defendant was a consensual encounter. Sergeant Gray possessed a reasonable, articulable suspicion of criminal activity to prolong the encounter past the point at which Defendant relinquished control of the flags.
Defendant failed to provide Sergeant Gray with identification or to state his identity. His resistance and increasing belligerence during the encounter obstructed and delayed law enforcement's ability to carry out a lawful duty.
Defendant received a fair trial, free from prejudicial errors he preserved and argued.
NO ERROR.
Judges STROUD and DIETZ concur.
Report per Rule 30(e).