Defendant's appeal from convictions of maintaining a dwelling to keep a controlled
substance, manufacturing marijuana, and possession of drug paraphernalia that asks the Court of
Appeals to invoke Rule 2 of the North Carolina Rules of Appellate Procedure to prevent a
manifest injustice is dismissed, because: (1) defendant failed to comply with N.C. R. App. P.
10(b) by failing to renew his motion to dismiss at the close of all evidence; and (2) the Court of
Appeals may not review an appeal that violates the Rules of Appellate Procedure even though
such violations neither impede comprehension of the issues nor frustrate the appellate process.
Attorney General Roy Cooper, by Assistant Attorney General
Jill A. Bryan, for the State.
Allen W. Boyer, for the defendant-appellant.
WYNN, Judge.
Recently, in Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402,
610 S.E.2d 360, 361 (2005),
(See footnote 1)
our Supreme Court admonished this
Court to avoid applying Rule 2 of the Rules of Appellate Procedure
even in instances where a party's “
Rules violations did not impede
comprehension of the issues on appeal or frustrate the appellate
process.”
Defendant, recognizing that he has not preserved thegrounds for his appeal from convictions of maintaining a dwelling
to keep a controlled substance, manufacturing marijuana, and
possession of drug paraphernalia
, asks this Court to invoke Rule 2
to prevent a manifest injustice.
Because we are constrained to
follow the dictates of Viar, we must hold that Defendant's failure
to comply with Rule 10(b) by failing to renew his Motion to Dismiss
at the close of all evidence mandates a dismissal of this appeal.
Under Rule 10(b) of our Rules of Appellate Procedure as
adopted by our Supreme Court:
In order to preserve a question for appellate
review, a party must have presented to the
trial court a timely request, objection or
motion, stating the specific grounds for the
ruling the party desired the court to make if
the specific grounds were not apparent from
the context. It is also necessary for the
complaining party to obtain a ruling upon the
party's request, objection or motion.
* * *
A defendant in a criminal case may not assign
as error the insufficiency of the evidence to
prove the crime charged unless he moves to
dismiss the action, or for judgment as in case
of nonsuit, at trial. If a defendant makes
such a motion after the State has presented
all its evidence and has rested its case and
that motion is denied and the defendant then
introduces evidence, his motion for dismissal
or judgment in case of nonsuit made at the
close of State's evidence is waived. Such a
waiver precludes the defendant from urging the
denial of such motion as a ground for appeal.
A defendant may make a motion to dismiss the
action or judgment as in case of nonsuit at
the conclusion of all the evidence,
irrespective of whether he made an earlier
such motion. If the motion at the close of
all the evidence is denied, the defendant may
urge as ground for appeal the denial of his
motion made at the conclusion of all theevidence. However, if a defendant fails to
move to dismiss the action or for judgment as
in case of nonsuit at the close of all the
evidence, he may not challenge on appeal the
sufficiency of the evidence to prove the crime
charged.
N.C. R. App. P. 10(b) (emphasis added); see also, e.g., State v.
Richardson, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504 (1995) (The
defendant's motion to dismiss after the close of the State's
evidence was denied and he “did not renew his motion to dismiss at
the close of all the evidence. Thus, under Rule 10(b)(3) of the
North Carolina Rules of Appellate Procedure, the issue of
insufficiency was not preserved for appellate review.”)
Here, at the close of the State's evidence, defense counsel
moved for a dismissal and directed verdict of acquittal based on
the State's failure to make a prima facie showing. When asked by
the trial court “Do you wish to be heard” on the motion, defense
counsel stated “Nothing further, Judge.” The motion was then
denied. At the close of all evidence, the trial court expressly
asked “Anything else for the defendant?” The response: “Nothing
from the defendant, Your Honor.” Thus, Defendant waived his motion
to dismiss by presenting evidence after making such motion, and
failing to make a motion to dismiss at the close of all evidence.
Accordingly, Defendant is precluded from urging the denial of a
motion to dismiss as the ground for his appeal.
Nonetheless, Defendant asks this Court to invoke Rule 2 of our
Rules of Appellate Procedure to review this unpreserved issue.
Rule 2 states:
To prevent manifest injustice to a party, orto expedite decision in the public interest,
either court of the appellate division may,
except as otherwise expressly provided by
these rules, suspend or vary the requirements
or provisions of any of these rules in a case
pending before it upon application of a party
or upon its own initiative, and may order
proceedings in accordance with its directions.
N.C. R. App. P. 2. While we acknowledge that this Court and our
Supreme Court have on many occasions invoked Rule 2 to allow a
defendant access to our appellate process, two recent cases from
our Supreme Court constrain our invocation of Rule 2.
In Viar,
359 N.C. at 402, 610 S.E.2d at 361
, our Supreme Court
stated that this Court may not review an appeal that violates the
Rules of Appellate Procedure even though such violations neither
impede our comprehension of the issues nor frustrate the appellate
process. The Supreme Court stated: “It is not the role of the
appellate courts . . . to create an appeal for an appellant. . . .
[T]he Rules of Appellate Procedure must be consistently applied;
otherwise, the Rules become meaningless[.]” Id.
In State v. Dennison, 359 N.C. 312, 608 S.E.2d 756 (2005), the
State appealed from this Court's decision holding that Defendant
was prejudiced by the improper admission of prior acts under Rule
404(b). Moreover, this Court found that Defendant had sufficiently
preserved his Motion in Limine by mov
ing to strike the evidence at
trial.
However, upon review, our Supreme Court, in a per curiam
opinion, stated:
[E]ven assuming arguendo that the admission of
this evidence was error, defendant waived his
right to appellate review of this issue
because he failed to object when Telladotestified. See N.C. R. App. P. 10(b)(1) (a
party must timely object to preserve a
question for appellate review) . . ..
Accordingly, the decision of the Court of
Appeals is reversed . . ..
Id. at 312-13,
608 S.E.2d at 756
.
In dismissing the appeal in Dennison without considering its
merits, our Supreme Court implicitly found that neither this
Court's finding of prejudicial error, which allowed the defendant
a new trial, nor the sentence of life imprisonment imposed upon the
defendant were sufficiently compelling reasons to invoke Rule 2 to
prevent a manifest injustice to the defendant.
Because even under the far more compelling facts of Dennison
Rule 2 was not invoked to prevent a manifest injustice,
we are
compelled to dismiss Defendant's appeal.
Dismissed.
Judge BRYANT
concurs.
Judge JACKSON concurs in result only.
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