Appeal by defendant from order entered 27 June 2003 by Judge
Timothy L. Patti in the Superior Court in Gaston County. Heard in
the Court of Appeals 1 September 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Anne M. Middleton, for the State.
Leslie C. Rawls, for defendant-appellant.
On 25 November 2002, a jury convicted defendant on forty-three
counts of third-degree sexual exploitation of a minor. The
superior court sentenced defendant to probation on 3 January 2003
and defendant appealed. While the appeal was ongoing, the State
filed a Motion to Review Conditions of Release on 25 June 2003. On
27 June 2003, the trial court held a hearing and entered an order
setting conditions of release pending appeal. Defendant appeals
the release order, and for the reasons below, we affirm.
In June 2000, police seized defendant's computer pursuant to
a search warrant and the SBI found nude or pornographic visual
depictions of children on the hard drive. A grand jury indicted
defendant on 7 August 2000 of multiple counts of sexualexploitation of a minor. On 10 August 2000, the superior court
entered an order setting pre-trial release conditions, including
, that defendant not use or possess a computer pending
After the jury found defendant guilty of forty-three counts of
third-degree sexual exploitation of a minor, the superior court
sentenced defendant on 3 January 2003. The court sentenced
defendant to suspended terms of imprisonment and placed him on
supervised probation for sixty months. Among the conditions of
probation, the court required that defendant not possess a computer.
Defendant appealed and because his sentence was probationary, it was
stayed on appeal, pursuant to N.C. Gen. Stat. § 15A-1451 (a) (4)
During defendant's appeal, the State received information that
defendant possessed a computer, whereupon officers executed a search
pursuant to a warrant on 13 June 2003, and found a computer in
defendant's residence. On 25 June 2003, the State filed a Motion
to Review Conditions of Release, asking the court to determine if
defendant had violated his conditions of release, or if none had
been set, to determine and set such conditions. On 27 June 2003,
the court conducted a hearing to set post-conviction release
conditions pending appeal, rather than as a review of any existing
conditions. The court imposed a new bond and set conditions,
including the condition that defendant not possess a computer or
reside in or visit any home where a computer was present.
Defendant contends that the trial court lacked authority to
impose conditions of release pending his appeal. He contends thatthe superior court may not set conditions of release pending appeal
where a defendant's probationary sentence from his conviction at
trial has been stayed pending appeal and he is not in custody. We
do not agree.
At the hearing on the Motion to Review Conditions, the court
set conditions pursuant to N.C. Gen. Stat. § 15A-536 (2002),
entitled [r]elease after conviction in the superior court. In
pertinent part, this statute provides that: A defendant whose
guilt has been established in the superior court and is either
awaiting sentence or has filed an appeal from the judgment entered
may be ordered released upon conditions in accordance with the
provisions of this Article. N.C.G.S. § 15A-536 (a). Defendant
argues that, applying its plain meaning, release refers only to
release from incarceration and that this statute may only apply to
a defendant in custody, or facing custody. Here, it is undisputed
that defendant was not in custody and that his probation was stayed
Defendant correctly asserts that this Court must look first to
the plain language of the statute to determine its meaning. State
348 N.C. 29, 34, 497 S.E.2d 276, 279 (1998). Release
is not defined in the North Carolina statutes and defendant suggests
that the Court should adopt the common usage meaning: to set or
make free. Defendant argues that, post-conviction, he cannot be
set free unless he has first been incarcerated or subject to
incarceration. Defendant cites no cases adopting his interpretation
and we disagree. We conclude that the plain language of N.C.G.S. § 15A-536
indicates that release means to set or make free from the
supervision and control of the court, as well as from imprisonment.
It is well-settled that the intent of the legislature controls
statutory construction. State v. Green,
348 N.C. 588, 596, 502
S.E.2d 819, 824 (1998), cert denied
525 U.S. 1111, 142 L. Ed. 2d 783
(1999). Here, we believe that the statute itself reveals the
legislative intent to reasonably assure the presence of the
defendant when required and provide adequate protection to persons
and the community. N.C.G.S. § 15A-536 (b). Defendant's proposed
reading is inconsistent with this intent.
After we consider the plain language of the statute, we may
look at other indications of legislative intent, including
statutes in pari materia
(relating to the same subject matter).
In re Banks,
295 N.C. 236, 239, 244 S.E.2d 386, 389 (citing State v.
, 91 N.C. 550 (1884)). The court is authorized to set
conditions pre-trial, including restrictions on travel,
associations, conduct, or place of abode. N.C.G.S. § 15A-534 (a)
(2002). The court's authority is not limited to persons arrested
for crimes for which imprisonment may be imposed. The provision at
issue here, N.C.G.S. § 15A-536, parallels and incorporates the
provisions of § 15A-534, and specifically allows the court to extend
through the appeal any safeguards originally implemented under §
15A-534. We do not believe the legislature would have authorized
the court to set pre-trial release conditions, before conviction,
but not to set conditions after conviction. This interpretation, as
the State points out, is illogical. Additionally, the term release is used in at least one other
statute in the same article to mean release other than from
imprisonment. For example, when a grand jury returns a bill of
indictment as not a true bill, the court must order release from
custody, exoneration, or release from the conditions of pretrial
, as the case may be. N.C.G.S. § 15A-629 (emphasis added).
Although a criminal statute must be strictly construed, the
courts must nevertheless construe it with regard to the evil which
it is intended to suppress. In re Banks
, 295 N.C. at 239, 244
S.E.2d at 388 (internal citations omitted). Here, the legislature
intended to address possible flight by the defendant and/or danger
to the community. Strict construction of criminal statutes does not
require a reviewing court to override common sense and evident
statutory purpose or to give a statute its 'narrowest meaning.'
United States v. Brown
, 333 U.S. 18, 25-26, 92 L. Ed. 442, 448
(1948). Where possible, the language of a statute will be
interpreted so as to avoid an absurd consequence. . . . Hobbs v.
, 267 N.C. 665, 671, 149 S.E. 2d 1, 5 (1966). We
conclude that to apply N.C.G.S. § 15A-536 only where the defendant
is in or facing custody would lead to the absurd result that the
court would have no oversight over defendants with probationary
sentences on appeal. We reject this argument.
Judges TYSON and GEER concur.
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