State v. Thompson

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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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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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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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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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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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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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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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.