STATE OF NORTH CAROLINA, Plaintiff, v. SHEILA NEWMAN, Defendant
Filed: 16 October 2007
1. Appeal and Error--appealability--interlocutory order--dismissal of one count while
Defendant's motion to dismiss the State's appeal from the dismissal with prejudice of one
count against defendant for resisting, delaying or obstructing a public officer (RDO) while there was
still another count pending for trespassing is denied even though defendant contends the appeal is
from an interlocutory order, because: (1) in the instant case there was a decision, dismissal of the
charge of RDO, but not a judgment since a sentence was not pronounced; and (2) if the legislature
had intended that the State not be able to appeal unless and until the court dismissed all counts
against a defendant or entered a judgment, N.C.G.S. § 15A-1445(a)(1) would not refer to a decision
or dismissal of one or more counts.
2. Appeal and Error--appealability--double jeopardy--jury must be sworn in criminal
The trial court did not err by denying defendant's motion to dismiss the State's appeal from
an order dismissing one of two criminal charges pending against defendant based on double
jeopardy, because: (1) in a criminal case, jeopardy does not attach until a competent jury has been
empaneled and sworn; and (2) defendant made her oral motion to dismiss before jury selection had
3. Constitutional Law--double jeopardy--resisting, delaying, or obstructing
officer_acquittal of assaulting official_same evidence test
Defendant's right against double jeopardy was not violated by the prosecution of defendant
on a charge of resisting, delaying or obstructing a public officer (RDO) in the superior court after
defendant was acquitted of a charge of assault on a government official in the district court where
the charge of RDO was based upon defendant pulling away and elbowing at the officer while the
charge of assault on a government official was based upon defendant elbowing the officer;
defendant need not have been under arrest in order for her pulling away from the officer to sustain
a conviction of RDO; and the charges of RDO and assault on a government official were thus not
based upon the same evidence.
Appeal by the State from judgment entered 9 August 2006 by
Judge Abraham Penn Jones in Superior Court, Vance County. Heard in
the Court of Appeals 7 June 2007.
Attorney General Roy A. Cooper, III by Assistant Attorney
General, Chris Z. Sinha for the State.
Stubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott
Holmes for Defendant-Appellee.
This matter is before the Court on the State's appeal from the
trial court order dismissing one of two criminal charges pending
against defendant Sheila Newman. We reverse the trial court's
dismissal of the charge of resisting, delaying or obstructing a
On 6 March 2004, defendant was charged with second degree
trespass (trespass), resisting, delaying or obstructing a public
(See footnote 1)
(RDO), and assault on a government official. Henderson
Police Department Officer K. M. Riddick was investigating a call
concerning a disruptive customer at Sally Reid's Junk Shack (Junk
Shack). All of defendant's charges arose out of an incident that
occurred on 6 March 2004 at the Junk Shack.
On 26 July 2004, defendant pled not guilty to all the charges
and was tried in District Court, Vance County. District Court
Judge Daniel Finch found defendant guilty of trespass and RDO.
However, Judge Finch found defendant not guilty of assault on a
government official. On 29 July 2004, defendant filed notice of
appeal from the judgment entered upon her convictions in district
court for trespassing and RDO. This matter was heard in Superior Court, Vance County on or
about 9 August 2006 before Judge Abraham Penn Jones. Defendant
made an oral motion to dismiss both charges. After hearing
argument from both parties, the trial court granted defendant's
motion as to the charge of RDO and denied defendant's motion as to
the charge of trespassing. Thereafter, the State moved to continue
trial on the charge of trespassing. Judge Jones indicated that he
would prefer to proceed with the trial, after which the court took
a brief recess. Upon return from the recess, the State gave notice
of appeal from the court's dismissal of the charge of RDO. The
State then renewed its motion to continue the trial on the charge
of trespassing, which the trial court granted. On 15 March 2007,
defendant moved to dismiss the State's appeal arguing, in part,
that the trial court order dismissing one of two criminal charges
pending against defendant is interlocutory.
II. Defendant's Motion to Dismiss on the Grounds of an
 The State's right to appeal in this matter is governed by
N.C Gen. Stat. § 15A-1445(a)(1): (a) Unless the rule against
double jeopardy prohibits further prosecution, the State may appeal
from the superior court to the appellate division: (1) When there
has been a decision or judgment dismissing criminal charges as to
one or more counts. N.C. Gen. Stat. § 15A-1445(a)(1) (2005). In
this case, the charging document contained three counts. One was
dismissed in District Court, one was dismissed in Superior Court,
and one is still pending in Superior Court. As a general rule an appeal will not lie until there is a
final determination of the whole case. It lies from an
interlocutory order only when it puts an end to the action or where
it may destroy or impair or seriously imperil some substantial
right of the appellant. State v. Ward, 46 N.C. App. 200, 204, 264
S.E.2d 737, 740 (1980) (internal citation and quotations omitted).
This Court held in Ward that an order dismissing a charge without
prejudice was not a final order and therefore dismissed the state's
appeal as interlocutory under N.C. Gen. Stat. § 15A-1445. Id. at
204-05, 263 S.E.2d 737, 740-41. We find no case addressing an
appeal by the State of the dismissal with prejudice of one count
against a defendant where there is still another count pending. We
must therefore examine the language of N.C. Gen. Stat. § 15A-
1445(a)(1). See N.C. Gen. Stat. § 15A-1445(a)(1).
The language of this statute is not ambiguous, and so we use
accepted principles of statutory construction by applying the plain
and definite meaning of the words therein to analyze the statute.
State v. Bryant, 361 N.C. 100, 102, 637 S.E.2d 532, 534 (2006).
N.C. Gen. Stat. § 15A-1445(a)(1) permits the State to appeal from
a decision or judgment dismissing criminal charges as to one or
more counts. N.C. Gen. Stat. § 15A-1445(a)(1) (emphasis added).
Entry of judgment in a criminal case is defined by N.C. Gen.
Stat. § 15A-101 as follows: Judgment is entered when sentence is
pronounced. N.C. Gen. Stat. § 15A-101(4a) (2005). The trial
court did not pronounce a sentence in this case and thus there wasno judgment. See id. Therefore we must consider if the trial
court made a decision. See N.C. Gen. Stat. § 15A-1445(a)(1).
We find no statutory definition of decision for purposes of
Chapter 15A and no formal definition of decision in our case law.
Black's Law Dictionary defines decision as
[a] determination arrived at after
consideration of facts, and, in legal context,
A determination of a judicial or quasi
judicial nature. A judgment or decree
pronounced by a court in settlement of a
controversy submitted to it and by way of
authoritative answer to the questions raised
before it. The term is broad enough to cover
both final judgments and interlocutory orders.
Black's Law Dictionary 366 (5th ed. 1979). While a final judgment
always is a final decision, there are instances in which a final
decision is not a final judgment. Stack v. Boyle, 342 U.S. 1, 12,
96 L. Ed. 3, 10 (1951) (Jackson, J., separate opinion).
In this case, there was a decision, dismissal of the charge of
RDO, but not a judgment because a sentence was not pronounced. See
Black's Law Dictionary 366, N.C. Gen. Stat. § 15A-101(4a) (2005).
The trial court did make a decision on one count of the charges
against defendant. See Black's Law Dictionary 366. The statute
permits appeal from a decision as well as a judgment. See N.C.
Gen. Stat. § 15A-1445(a)(1). If the legislature had intended that
the State not be able to appeal unless and until the court
dismissed all counts against a defendant or entered a judgment,
the statute would not refer to a decision or dismissal of one or
more counts. See id. Therefore, under the plain language of N.C.
Gen. Stat. § 1445(a)(1), the State has a right to appeal thedismissal of one count and this appeal is not interlocutory. See
III. Defendant's Motion to Dismiss on the Grounds of Double
 In addition to arguing the State's appeal was
interlocutory in her motion to dismiss, defendant argued the appeal
should be dismissed because double jeopardy had attached. The
State may appeal the dismissal of criminal charges only when
further prosecution would not be barred by the rule against double
jeopardy. State v. Priddy, 115 N.C. App. 547, 550, 445 S.E.2d
610, 613, disc. rev. denied, 337 N.C. 805, 449 S.E.2d 751 (1994);
see also N.C. Gen. Stat. § 15A-1445(a)(1). However, in a criminal
trial such as this, jeopardy does not attach until a competent
jury has been empaneled and sworn. Id. at 550, 445 S.E.2d at 613.
Defendant made her oral motion to dismiss before jury selection had
even begun. Jeopardy had not attached. See id. We therefore deny
defendant's motion to dismiss this appeal on the grounds of double
IV. Double Jeopardy
 We must next consider the substantive grounds of this
appeal, whether the trial court erred in dismissing the charge of
RDO on the grounds of double jeopardy. Defendant made an oral
motion to dismiss the charge of RDO based upon the argument that
the same evidence which was presented against her in the district
court trial would be used against her again in the superior court
trial of the RDO charge. Defendant argued this would violate herconstitutional protection from double jeopardy under the United
States Constitution. See
U.S. Const. amend. V. The trial court
granted the defendant's motion to dismiss the RDO charge.
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. See State v. Ross
, 173 N.C. App. 569, 573, 620
S.E.2d 33, 36 (2005), aff'd, per curiam,
360 N.C. 355, 625 S.E.2d
779 (2006). A trial court's legal conclusions are reviewable de
The Double Jeopardy clause of the Fifth Amendment of the
United States Constitution is applicable to the states through the
The clause provides that no person shall be
subject for the same offense to be twice put in jeopardy of life or
limb[.] U.S. Const. amend. V. It 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. Priddy
, 115 N.C. App. 547, 550, 445
S.E.2d 610, 613 (1994) (citation and internal quotations
omitted)(discussing State v. Gardner
, 315 N.C. 444, 451, 340 S.E.2d
701, 707 (1986)).
In determining whether two indictments are for the same
offense, our courts have used the same-evidence test. State v.
, 168 N.C. App. 190, 196, 607 S.E.2d 311, 315, disc. rev.
, 359 N.C. 636, 618 S.E.2d 232 (2005) (internal quotationsomitted). This test asks two somewhat alternative 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. State v. Ray
, 97 N.C. App. 621, 624, 389
S.E.2d 422, 424 (1990). We must apply the same evidence test to
determine if the indictments for assault on a government official
and RDO are for the same offense. See Allah
, 168 N.C. App. at 196,
607 S.E.2d at 315.
The North Carolina Supreme Court has already determined that
RDO is neither the same nor a lesser included offense of assault on
a government official. State v. Hardy
, 298 N.C. 191, 197, 257
S.E.2d 426, 430 (1979). However, the Court also stated in Hardy
that its holding did not eliminate the possibility that the facts
in a given case might constitute a violation of [double jeopardy].
In such a case the defendant could not be punished twice for the
same conduct. It was so held in State v. Summrell
, 282 N.C. 157,
192 S.E. 2d 569 (1972).
(See footnote 2)
at 198, 257 S.E.2d at 431. Though
RDO is neither the same nor a lesser included offense of assault on
a government official this court must still apply the same-evidence
test as there is a possibility that the facts in a given case
might constitute a violation of [double jeopardy]. See id.
197-98, 257 S.E.2d at 430-31. This Court has previously considered a situation almost
identical to defendant's in the case of State v. Bell
, 164 N.C.
App. 83, 594 S.E.2d 824 (2004). In Bell
, the defendant was charged
with assaulting a government official and RDO. Id.
at 86, 594
S.E.2d at 826. She was found not guilty of assault on a government
official and guilty of RDO in district court and she appealed the
RDO conviction to superior court. Id.
She was then tried in
superior court and objected to the admission of evidence against
her which had also been presented before the district court. Id.
at 87, 594 S.E.2d at 826. The only relevant procedural differences
and the case sub judice
is that in Bell
court did proceed with the trial of the RDO charge in superior
court, and in the present case defendant does challenge the State's
ability to prosecute her for RDO in superior court. See Bell
86-89, 594 S.E.2d at 826-28. The defendant in Bell
her constitutional protection against double jeopardy was violated
because collateral estoppel barred the State from presenting
evidence which was previously used against her in district court.
at 90, 594 S.E.2d at 828. This Court disagreed and affirmed
the trial court's decision. Id.
, 164 N.C. App. 83, 594 S.E.2d 824.
The record in the case sub judice
does not contain a
transcript of the district court trial in which defendant was
acquitted of assault on a government official and convicted of RDO,
and no evidence was presented before the superior court prior to
the dismissal. Thus, we can consider only the allegations in the
warrants, regarding defendant's conduct. On the assault on agovernment official charge, the warrant states that the defendant
assaulted the officer by elbowing him. On the RDO charge, the
warrant states that defendant was pulling away and elbowing at the
officer. Defendant argues that her pulling away was justified,
and thus the only evidence the State has for both the RDO and the
assault on a government official charge is elbowing.
We do not however find defendant's pulling away justified.
Although the trial court made no findings of fact and the order did
not state the reason for the dismissal, from the transcript it
appears that the trial judge granted the motion to dismiss because
the defendant was not under arrest at the time she allegedly
pulled away from the officer. However, a defendant need not be
under arrest or even in the process of being arrested in order to
be guilty of RDO. See State v. Lynch
, 94 N.C. App. 330, 332, 380
S.E.2d 397, 398 (1989). The conduct proscribed under G.S. 14-223
is not limited to resisting an arrest but includes any resistance,
delay, or obstruction of an officer in the discharge of his duties.
. . . [D]efendant's conviction may be based upon his conduct prior
to the time of his actual arrest. Id.
(indictment alleged that
defendant attempted to run from and struggled with the officers
while they were attempting to ascertain defendant's identity).
Defendant does not dispute that Officer Riddick was discharging or
attempting to discharge a duty of his office when he responded to
investigate a call of a disruptive customer at the Junk Shack,
and that defendant was the alleged disruptive customer. Even defendant's pulling away from the officer as he
attempted to discharge his duty by investigating the call would be
sufficient to sustain the charge of RDO, as this action could have
delayed or obstructed his investigation. See State v. Leigh
278 N.C. 243, 249, 179 S.E.2d 708, 711 (1971) (finding that even
though no actual violence or force was used by defendant . . .
there was plenary evidence to support a jury finding that defendant
did by his actions and language delay and obstruct the officer in
the performance of his duties).
Finding, as we have, that defendant's pulling away was not
justified we apply the same evidence test and find that the
evidence is not in fact the same as the RDO warrant was validly
based on defendant pulling away and elbowing at the officer
whereas the assault was only based on the defendant elbowing the
officer. See State v. Ray
, 97 N.C. App. 621, 624, 389 S.E.2d 422,
The State in Bell
had the ability to prosecute defendant for
RDO in superior court using the same evidence as in district court
without violation of defendant's double jeopardy protection, and
thus the trial court's order of dismissal in the case sub judice
should be reversed. See Bell
, 164 N.C. App. 83, 594 S.E.2d 824.
The State did have the right to prosecute defendant on both the
assault on a government official and RDO charges, without placing
defendant in double jeopardy, as the evidence required to convict
defendant on the RDO charge is not the same as for the assault on
a government official charge. See id.; see also State v. Hardy
,298 N.C. 191, 197, 257 S.E.2d 426, 430. Thus, based upon Bell
trial court erred in granting the defendant's motion to dismiss the
RDO charge. We therefore reverse the trial court's order of
dismissal and remand to the superior court for further proceedings
not inconsistent with this opinion.
REVERSED AND REMANDED.
Judges ELMORE and STEELMAN concur.