State v. Wilkins

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA 23-839

Filed 17 September 2024

Wake County, Nos. 21 CRS 2400-03

STATE OF NORTH CAROLINA

v.

BRINDELL WILKINS, Defendant.

Appeal by Defendant from Judgments entered 8 December 2022 by Judge Paul

Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 12 June

2024.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Heidi

M. Williams, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Michele

Goldman, for Defendant-Appellant.

HAMPSON, Judge.

Factual and Procedural Background

Brindell Wilkins (Defendant) appeals from Judgments entered pursuant to

jury verdicts finding him guilty of six counts of Obtaining Property by False Pretenses

and six counts of felony Obstruction of Justice. The Record before us tends to reflect

the following:

In 2009 Defendant was appointed Sheriff of Granville County, and in 2010 he

was elected to that office. Prior to this appointment, Defendant served in Granville

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Opinion of the Court

County as a deputy sheriff from 1989 through 1996, as an auxiliary officer from 1996

through 2001, and as chief deputy sheriff from 2001 until his appointment as Sheriff.

During his time as a deputy, Defendant received the certification required to

hold that position. The North Carolina Sheriffs’ Education and Training Standards

Commission (the Commission) sets requirements for deputy sheriffs to become

certified justice officers, while the North Carolina Sheriffs’ Education and Training

Standards Division (Division) operates as staff for the Commission, overseeing

training and certification for justice officers. Requirements for deputy sheriffs include

an initial 600-to-700-hour Basic Law Enforcement Training course.

After obtaining certification, justice officers must complete annual in-service

training, which includes firearm requirements for officers authorized to carry

firearms. Sheriffs’ offices are required to submit a yearly report to the Division setting

forth which of its justice officers completed annual training and, if applicable,

whether they qualified to carry a firearm for that year. The Division then reviews the

reports and audits the records for compliance with the Commission’s standards.

As Sheriff, Defendant was not required to maintain certification or complete

in-service training requirements. N.C. Gen. Stat. § 17E-11. However, he was still able

to voluntarily complete training to maintain his certification if he so chose.

Between the years of 2013 and 2019, Defendant reported to the Division that

he had satisfied completed voluntary in-service training and firearm qualification

classes. However, a 2019 investigation of the Granville County Sheriff’s Office

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revealed that Defendant’s signatures on training class rosters appeared to be

falsified. His firearms requalification scores were not posted with those of the deputy

sheriffs, and deputy sheriffs later testified at trial that Defendant had not

participated in in-service training or firearms training and requalification with them.

Defendant was charged with six counts each of Obtaining Property by False

Pretenses and Obstruction of Justice.

At trial, Defendant admitted that he had not completed in-service training or

firearms training and requalification since becoming Sheriff. He testified he

submitted the false records for “a personal reason” and that he “wanted to get credit

for it.”

Defendant moved to dismiss all charges and the trial court denied his Motion.

The jury found Defendant guilty on all twelve counts. The trial court sentenced

Defendant to six to seventeen months’ imprisonment, with an additional suspended

sentence of the same length. Defendant gave oral Notice of Appeal.

Issue

The issues on appeal are whether the trial court (I) erred in denying

Defendant’s Motion to Dismiss the charges of Obtaining Property by False Pretenses;

and (II) erred in denying Defendant’s Motion to Dismiss the charges of Obstruction

of Justice.

Analysis

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Opinion of the Court

We review the trial court’s denial of a motion to dismiss de novo, substituting

our judgment freely for that of the trial court. State v. Walker, 286 N.C. App. 438,

441, 880 S.E.2d 731, 735 (2022). “When a defendant moves for dismissal, the trial

court is to determine whether there is substantial evidence (a) of each essential

element of the offense charged, or of a lesser offense included therein, and (b) of

defendant’s being the perpetrator of the offense.” State v. Earnhardt, 307 N.C. 62, 65-

66, 296 S.E.2d 649, 651 (1982). If so, the motion is properly denied. Id. at 66, 296 N.C.

at 651-52.

“In making its determination, the trial court must consider all evidence

admitted, whether competent or incompetent, in the light most favorable to the State,

giving the State the benefit of every reasonable inference and resolving any

contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223

(1994). “Only defendant’s evidence which does not contradict and is not inconsistent

with the state’s evidence may be considered favorable to defendant if it explains or

clarifies the state’s evidence or rebuts inferences favorable to the state.” State v.

Sumpter, 318 N.C. 102, 107-08, 347 S.E.2d 396, 399 (1986).

I. Obtaining Property by False Pretenses

To convict Defendant of Obtaining Property by False Pretenses (OPFP), the

State must provide evidence of “(1) a false representation of a subsisting fact or a

future fulfillment or event, (2) which is calculated and intended to deceive, (3) which

does in fact deceive, and (4) by which one person obtains or attempts to obtain value

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from another.” State v. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980); N.C.

Gen. Stat. § 14-100 (2023). Defendant argues that the State has failed to prove the

final element because the certification was already in his possession when he filed

the false reports and renewing a certification does not constitute “obtaining” it as

required by the statute. We agree.

To convict for OPFP, “[t]here must be a causal relationship between the

representation alleged to have been made and the obtaining of the money or

property.” State v. Davis, 48 N.C. App. 526, 531, 269 S.E.2d 291, 294-95 (1980)

(emphasis added). Thus, Defendant’s argument—that he did not obtain anything

because of his misrepresentation but only maintained possession of a certification

obtained prior—depends on whether renewal of a license or certification constitutes

obtaining property within the meaning of the statute.

We addressed a similar question in State v. Mathis, 261 N.C. App. 263, 819

S.E.2d 627 (2018). There, the defendant was a bail bondsman charged with OPFP for

renewing his bondsman’s license after submitting reports that misrepresented the

bonds he had issued. Id. at 267, 819 S.E.2d at 631. Renewal allowed him to keep the

license for another year. Id. As in this case, the defendant argued that he had not

obtained anything of value because he already had a license prior to the

misrepresentation. Id. at 281, 819 S.E.2d at 639-40. We agreed and rejected the

State’s argument that retaining the bondsman’s license fell within the definition of

“obtaining” as used in the OPFP statute, holding that “retain is not within the

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Opinion of the Court

definition of obtain” and that a renewal could not constitute obtaining for the

purposes of the statute. Id. We noted that the Department of Insurance had different

processes and requirements for obtaining a bondsman’s license and renewing or

retaining one. Id. We also noted that the rule of lenity, which requires us to strictly

construe criminal statutes and resolve ambiguities in favor of defendants, supported

our holding. Id; State v. Hinton, 361 N.C. 207, 211, 639 S.E.2d 437, 440 (2007).

Defendant argues that, similarly to Mathis, his false pretense led only to

retaining the certification he first obtained while working as a deputy and there is

therefore no causal connection between his misrepresentation and obtaining the

certification. We agree. Here, the indictment alleged Defendant obtained “continued

law enforcement certification.” Applying Mathis, we conclude that renewing a

previously acquired law enforcement certification does not constitute obtaining

property. As with the bondsman’s license at issue in that case, the process for

obtaining and renewing law enforcement certification differs considerably, with

initial obtainment requiring completion of the Basic Law Enforcement Training

course. The evidence showed Defendant did not obtain a new certification but

retained a previously issued one, and to “retain is not within the definition of obtain.”

Id. at 282, 819 S.E.2d at 640. Because Defendant must have obtained property to be

charged with OPFP, we conclude the trial court erred in denying his motion to

dismiss.

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The State attempts to distinguish Mathis, arguing that our decision in that

case rested on an error in the indictment. The indictment in Mathis alleged the

defendant “obtain[ed] . . . a Professional Bail Bondsman’s License” that the parties

agreed had, in fact, been in his possession prior to his alleged acts. Id. at 282, 819

S.E.2d at 640. It was only on appeal at oral argument that the State introduced the

argument that “retaining wrongfully is obtaining” and that “obtaining a renewal”

may constitute “obtaining.” Id. at 282, 819 S.E.2d at 640. We declined to engage with

this argument because it was inconsistent with the indictment, which did not allege

the defendant had “obtained a renewal.” Id. (“Additionally, the State’s assertion at

oral argument—Defendant obtained a renewal—is not what the State alleged in the

indictment.”).

In this case, the indictment alleges that Defendant obtained “continued law

enforcement certification.” While this phrasing is slightly different from the

indictment in Mathis, it does not change the facts of this case: that Defendant

obtained his certification prior to making any misrepresentation, and his false

pretenses led only to a retention of certification. Under Mathis, this is not obtaining

property within the meaning of the statute and Defendant could not be convicted of

OPFP. Id. at 283, 819 S.E.2d at 640 (“The State also contended obtaining a renewal

may be obtaining. We disagree.”). The trial court erred by denying his Motion to

Dismiss the charges of Obtaining Property by False Pretenses.

II. Obstruction of Justice

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To prove the offense of common law obstruction of justice, the State must show

Defendant: “(1) unlawfully and willfully; (2) obstructed justice; (3) with deceit and

intent to defraud.” State v. Cousin, 233 N.C. App. 523, 537, 757 S.E.2d 332, 342-43

(2014). “[A]ny action intentionally undertaken by the defendant for the purpose of

obstructing, impeding, or hindering the plaintiff’s ability to seek and obtain a legal

remedy will suffice to support a claim for common law obstruction of justice.”

Blackburn v. Carbone, 208 N.C. App. 519, 703 S.E.2d 788 (2010). An obstructive act

is “one that is done for the purpose of hindering or impeding a judicial or official

proceeding or investigation or potential investigation, which might lead to a judicial

or official proceeding.” State v. Coffey, __ N.C. App. __, 898 S.E.2d 359, 364, disc.

review denied __ N.C. __, 901 S.E.2d 796 (2024).

We do not reach Defendant’s arguments as to the sufficiency of evidence

supporting his conviction for obstruction of justice because the indictments are

facially invalid as to this charge. Because a facially invalid indictment fails to confer

subject matter jurisdiction on the trial court, its validity may be challenged at any

time and a conviction based on an invalid indictment must be vacated. State v.

Perkins, 286 N.C. App. 495, 502, 881 S.E.2d 842, 849 (2022). “It is well-established

that the issue of a court’s jurisdiction over a matter may be raised at any time, even

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for the first time on appeal or by a court sua sponte.” State v. Webber, 190 N.C. App.

649, 650, 660 S.E.2d 621, 622 (2008).1

An indictment must include “[a] plain and concise factual statement in each

count, which, without allegations of an evidentiary nature, asserts facts supporting

every element of a criminal offense and the defendant’s commission thereof with

sufficient precision clearly to apprise the defendant or defendants of the conduct

which is the subject of the accusation.” N.C. Gen. Stat. § 15A-924(a)(5) (2023).

Defendant argues the State failed to allege obstruction because the indictment

asserts no facts showing Defendant’s actions were done to subvert a potential

investigation or legal proceeding. The indictment alleged Defendant:

unlawfully, willfully and feloniously with deceit and intent

to defraud, did commit the infamous offense of obstruction

of justice by knowingly providing false and misleading

information in training records indicating he had

completed mandatory in-service training and annual

firearm qualification where he had not completed it, and

knowing that these records and/or the information

contained in these records would be and were submitted to

the North Carolina Sheriffs’ Education and Training

Standards Division thereby allowing defendant to

maintain his law enforcement certification when he had

failed to meet the mandated requirements.

1 Defendant has filed with this Court a Motion for Appropriate Relief requesting that we

address the error in the indictment in light of Coffey. Because errors in the indictment are

jurisdictional in nature and may be raised at any time, including sua sponte, we elect to address this

issue in this opinion and dismiss Defendant’s Motion as moot.

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This indictment is materially identical to that at issue in the related case of

State v. Coffey, __ N.C. App. __, 898 S.E.2d 359, 364, disc. review denied __ N.C. __,

901 S.E.2d 796 (2024). There, the defendant certified our present Defendant’s

falsified attendance and firearms records. Id. at 360-61. The indictment alleged he

acted “for the purpose of allowing Sheriff Wilkins and Chief Deputy Boyd to maintain

their law enforcement certification when he had failed to meet the mandated

requirements.” Id. at 365. However, it did not allege that he acted with intent to

obstruct an investigation or judicial proceeding. This raised the question of what

constitutes an “act which prevents, obstructs, impedes or hinders public or legal

justice.” Id. at 363; In re Kivett, 309 N.C. 635, 670, 309 S.E. 2d 442, 462 (1983)

(defining common law obstruction of justice).

We observed that, under our precedent, an act that obstructs justice must be

one that is “done for the purpose of hindering or impeding a judicial or official

proceeding or investigation or potential investigation, which might lead to a judicial

or official proceeding.” Id. at 364. When the indictment fails to allege that the acts

were intended to interfere with an investigation or proceeding, it fails to allege facts

supporting an element of the offense. Id. at 365. The indictments in Coffey, as in this

case, alleged the defendant “willfully and knowingly provided false and misleading

information in training records knowing those records would be submitted to [the

Division.]” Id. However, there was no indication in the indictment that the defendant

had acted to hinder any investigation by the Division or to impair their ability to seek

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relief against the involved parties: “While these alleged actions are wrongful, there

are no facts asserted in the indictment to support the assertion Defendant’s actions

were done to subvert a potential subsequent investigation or legal proceeding.” Id.

Instead, the indictments alleged his actions were “done for the sole purpose of

allowing his supervisors to maintain their certifications.” Id.

Defendant’s nearly identical indictment likewise asserts only that his

submission of falsified records was done for the purpose of maintaining his

certification despite failing to meet the requirements. It does not allege that his

wrongful acts were done to subvert a potential investigation or legal proceeding, and

therefore fails to allege he performed an act which “prevents, obstructs, impedes or

hinders public or legal justice.” Kivett, 309 N.C. at 670, 309 S.E.2d at 463; N.C. Gen.

Stat. § 15A-924(a)(5) (2023). The indictment therefore fails entirely to charge

Defendant with a criminal offense.2

Thus, here, the indictments were insufficient by failing to allege the crime of

common law obstruction of justice. Therefore, the indictments were fatally defective.

Consequently, the trial court erred in denying Defendant’s Motion to Dismiss because

2 We note that our Supreme Court has recently held that “an indictment raises jurisdictional

concerns only when it wholly fails to charge a crime against the laws or people of this State.” State v.

Singleton, 386 N.C. 183, 184-85, 900 S.E.2d 802, 805 (2024). A “mere pleading deficiency” does not

deprive our courts of jurisdiction. Id. at 215, 900 S.E.2d at 824. The indictment in this case does not

allege conduct that could be understood to constitute common law obstruction of justice and therefore

fails entirely to allege a criminal act, creating a jurisdictional defect. We additionally observe that the

Supreme Court denied discretionary review in Coffey subsequent to its opinion in Singleton. 901 S.E.2d

796. Coffey remains binding precedent upon this Court.

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the indictments as to Obstruction of Justice were defective and the trial court lacked

subject matter jurisdiction to enter judgment thereon.3

Conclusion

Accordingly, for the foregoing reasons, we reverse the ruling of the trial court

as to Defendant’s Motion to Dismiss the charges of Obtaining Property by False

Pretenses and vacate the trial court’s Judgments as to Defendant’s convictions of

common law Obstruction of Justice.

REVERSED IN PART; VACATED IN PART

Judges MURPHY and WOOD concur.

3 It must be noted that the trial court did not have the benefit of our decision in Coffey.

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