In evaluating a double jeopardy claim, “[i]t is well established that the Double Jeopardy Clause of the North Carolina and United States Constitutions protect against (1) a second prosecution after acquittal for the same offense, (2) a second prosecution after conviction for the same offense, and (3) multiple punishments for the same offense.” State v. Newman, 186 N.C.App. 382, 386–87, 651 S.E.2d 584, 587 (2007) (citation and quotation marks omitted), disc. review denied, 362 N.C. 478, 667 S.E.2d 234 (2008). “The standard of review for this issue is de novo, as the trial court made a legal conclusion regarding the defendant's exposure to double jeopardy.”
In evaluating a double jeopardy claim, "[i]t is well established that the Double Jeopardy Clause of the North Carolina and United States Constitutions protect against (1) a second prosecution after acquittal for the same offense, (2) a second prosecution after conviction for the same offense, and (3) multiple punishments for the same offense." State v. Newman, 186 N.C. App. 382, 386-87, 651 S.E.2d 584, 587 (2007) (citation and quotation marks omitted), disc. review denied, 362 N.C. 478, 667 S.E.2d 234 (2008). "The standard of review for this issue is de novo, as the trial court made a legal conclusion regarding the defendant's exposure to double jeopardy."
Our Court has stated that, "`[i]n determining whether two indictments are for the same offense, our courts have used the same-evidence test.'" State v. Newman, 186 N.C. App. 382, 387, 651 S.E.2d 584, 587 (2007) (quoting State v. Allah, 168 N.C. App. 190, 196, 607 S.E.2d 311, 315, disc. review denied, 359 N.C. 636, 618 S.E.2d 232 (2005)). The test in Newman asks two questions: "1) whether the facts alleged in the second indictment if given in evidence would have sustained a conviction under the first indictment, or 2) whether the same evidence would support a conviction in each case.'"
¶ 16 We review double jeopardy issues de novo. State v. Sparks , 362 N.C. 181, 185-86, 657 S.E.2d 655, 658 (2008) ; seeState v. Newman , 186 N.C. App. 382, 386, 651 S.E.2d 584, 587 (2007) ("The standard of review for [double jeopardy issues] is de novo, as the trial court made a legal conclusion regarding the defendant's exposure to double jeopardy."
We review double jeopardy issues de novo. State v. Sparks , 362 N.C. 181, 186, 657 S.E.2d 655, 658 (2008) ; see State v. Newman , 186 N.C. App. 382, 386, 651 S.E.2d 584, 587 (2007) ("The standard of review for [double jeopardy issues] is de novo , as the trial court made a legal conclusion regarding the defendant's exposure to double jeopardy." (citation omitted)).
Fritsch , 351 N.C. at 379, 526 S.E.2d at 455 (citations, emphasis, quotation marks, and brackets omitted). N.C. Gen. Stat. § 14-223 proscribes not merely resisting an arrest, but includes any willful and unlawful resistance, delay, or obstruction of a public officer in the discharge of his or her duty. State v. Newman , 186 N.C.App. 382, 388, 651 S.E.2d 584, 588 (2007), disc. review denied , ––– N.C. ––––, 667 S.E.2d 234 (2008) (citation omitted). Violation of this statute is a Class 2 misdemeanor.
"As a general rule an appeal will not lie until there is a final determination of the whole case." State v. Newman, 186 N.C.App. 382, 384, 651 S.E.2d 584, 586 (2007), disc. review denied, 362 N.C. 478, 667 S.E.2d 234 (2008) (citation omitted). The 15 November 2013 order of the superior court was not a final order and is interlocutory under the current statutory scheme.
Moreover, the State voluntarily dismissed the felonious larceny charge after the trial court denied its continuance motion. Although the State's notice of appeal stated that it was appealing from the order “in which the Court dismissed two counts of Obtaining Property by False Pretenses and prohibited the State from introducing the testimony of two witnesses” and although the State clearly has the right to seek appellate review of that portion of the trial court's 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 “under the plain language of N.C. Gen.Stat. § [15A-] 1445(a)(1), the State has a right to appeal the dismissal of one count and this appeal is not interlocutory”), disc. review denied,362 N.C. 478, 667 S.E.2d 234 (2008), the fact that “[t]he General Statutes do not provide a similar right of appeal with regard to the imposition of lesser discovery sanctions upon the State,” 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's 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's challenge to the trial court's order to a consideration of the lawfulness of the trial court's decision to dismiss the two obtaining property by false pretenses charges.
“As a general rule an appeal will not lie until there is a final determination of the whole case.” State v. Newman, 186 N.C.App. 382, 384, 651 S.E.2d 584, 586 (2007) (citation omitted). As already discussed, in the instant case the final order dismissing all charges against defendant was issued by the district court on 20 July 2012. Although the State appealed this final order to superior court, the superior court was limited, pursuant to N.C.G.S. § 15A–1432(e), to entering an order affirming the judgment of the district court. N.C.G.S. § 15A–1432(e).
This Court reviews a trial court's denial of a double jeopardy motion to arrest judgment on an offense de novo. State v. Newman, 186 N.C.App. 382, 386–87, 651 S.E.2d 584, 587 (2007). In State v. Tirado, 358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004), the North Carolina Supreme Court held that because the offenses of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious bodily injury each contain at least one element not included in the other, the defendants were not subjected to double jeopardy when both charges were submitted to the jury, even though the two offenses arose out of the same factual basis.