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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 07 August 2007
STATE OF NORTH CAROLINA
No. 03 CRS 15263
04 CRS 15397
MARVIN HAROLD WITHERSPOON
Appeal by defendant from judgment entered 15 July 2005 by
Judge Timothy L. Patti in Catawba County Superior Court. Heard in
the Court of Appeals 23 January 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Anne M. Middleton, for the State.
Crowe & Davis, P.A., by H. Kent Crowe, for defendant-
When a private party procures evidence from a defendant and
delivers it to the State, the Fourth Amendment does not require the
suppression of such evidence if the private party, in the light of
all the circumstances of the case, did not act as an instrument or
agent of the State. When the appellate record is insufficient to
determine whether a defendant's newly discovered evidence meets the
prerequisites for a new trial, a defendant's motion for appropriate
relief must be remanded to the trial court for an evidentiary
Marvin Harold Witherspoon (defendant), a certified public
accountant, was born on 22 September 1935. In 2005, defendant
lived with an unrelated roommate, Fred Lovelace (Lovelace), who
was eighteen years old. Officials initially began investigating
Lovelace, suspecting that he had committed statutory rape upon a
thirteen year old female. Investigator Joanna Morton (Morton),
of the Hickory Police Department, became suspicious of the living
arrangement between the elderly defendant and young Lovelace, and
performed a background check on defendant. This revealed two prior
reports filed with the Hickory Police Department. In January 1996,
an eighteen or nineteen year old man, who rented a room in
defendant's house, found a camera in the ceiling vent above his
bed. Police found the video camera and traced the wire to a room
in the basement, to which defendant would not allow them access.
In October 1999, another report alleged that defendant had
downloaded child pornography.
Morton's interviews with Lovelace revealed that defendant
allowed Lovelace to live in his house without payment of rent, and
that defendant was obsessed with children. Lovelace also stated
that he had witnessed defendant chat with young males from ages
thirteen to eighteen in gay internet chat rooms. Lovelace stated
that defendant would go into these chat rooms and specifically
review profiles for symbols indicating that the user had a web
camera. Defendant would then persuade the young males to
masturbate in front of a web camera while he watched and recorded
them. Lovelace saw defendant videotape these actions through avideo recorder connected to his computer. Lovelace also told
Morton that there was a room in defendant's house, which he called
the video room. Defendant always kept the video room locked, but
on several occasions, defendant allowed Lovelace into the video
room, where Lovelace saw many videos that defendant had recorded
from the internet. Defendant also offered to pay Lovelace to
masterbate in front of him .
Lovelace allowed Sergeant Christopher LeCarter (LeCarter),
of the Hickory Police Department, to conduct a search of his
bedroom in defendant's home. LeCarter found a place where a camera
might have been previously mounted.
Lovelace also gave Morton two videotapes which he stated
belonged to defendant. The first was a video of young males
appearing in front of internet web cameras. The second was a tape
from a hidden camera, which appeared to be filming into a residence
in the neighborhood, and contained video of a young man
Morton reviewed all of the information and the tapes, and
obtained a search warrant for defendant's residence. Nothing
obtained as a result of the consent search of Lovelace's room was
used as a basis for the application for the search warrant.
On 10 November 2003, defendant was indicted for five counts of
second degree sexual exploitation of a minor in violation of N.C.
Gen. Stat. . 14-190.17, four counts of first degree exploitation of
a minor in violation of N.C. Gen. Stat. . 14-190.16(a)(1), and onecount of statutory sexual offense of person who is 13, 14 or 15
years old in violation of N.C. Gen. Stat. . 14-27.7A.
On 15 April 2005, defendant filed a motion to suppress,
arguing that his Fourth Amendment rights were violated because the
government use[d] [Lovelace] as an agent and . . . entice[d] him
to assist the government by not seeking charges against him for
statutory rape until the 12th day of April, 2004. Defendant argued
that the government influence[d] Lovelace to create or seize
evidence from [defendant][.] A hearing on this motion was held on
9 May 2005. The court heard evidence from Morton, LeCarter,
Lovelace and defendant.
On 21 June 2005, Judge Nathaniel J. Poovey entered a written
order containing detailed findings of fact and conclusions of law,
denying defendant's motion to suppress, and holding that Morton had
probable cause to obtain and execute the search warrant based upon
the totality of the circumstances. The court further concluded
that Lovelace did not act as an agent of the State, nor as an arm
of the government, in obtaining evidence in the case. Finally, the
court concluded that defendant's constitutional rights were not
violated by obtaining and executing a search warrant at defendant's
residence, and the admission of evidence seized pursuant to the
search warrant was not prohibited by law.
On 15 July 2005, a jury found defendant guilty of four counts
of first degree sexual exploitation of a minor and one count of
statutory sex offense. Defendant received a presumptive range
sentence of 300 to 369 months incarceration. Defendant appeals.
In his only argument, defendant contends that the trial court
erred in denying his motion to suppress evidence seized pursuant to
the search warrant issued on 21 October 2003. We disagree.
Specifically, defendant argues that Fred Lovelace was acting
as an agent of the Hickory Police Department when he removed two
videotapes belonging to the defendant from the residence, and then
turned them over to Morton. Defendant then argues that without the
two videotapes, the State did not have sufficient probable cause to
obtain the search warrant.
When a private party has engaged in a search and has seized
property, the protections of the Fourth Amendment apply only if the
private party in light of all the circumstances of the case, must
be regarded as having acted as an 'instrument' or agent of the
State. State v. Kornegay,
313 N.C. 1, 10, 326 S.E.2d 881, 890
(1985) (citing Coolidge v. New Hampshire,
403 U.S. 443, 487, 29 L.
Ed. 2d 564, __ (1971). In Coolidge v. New Hampshire
, 403 U.S. 443,
29 L. Ed. 2d 564 (1971), reh'g denied
, 404 U.S. 874, 30 L. Ed. 2d
120 (1971), the United States Supreme Court emphasized that the
Fourth and Fourteenth Amendments in no way should discourage
citizens from aiding to the utmost of their ability in the
apprehension of criminals. Id.
at 488, 29 L. Ed. 2d at 595.
Rather, [m]ere acceptance by the government of materials obtained
in a private search is not a seizure so long as the materials are
voluntarily relinquished to the government. State v. Kornegay
313 N.C. 1, 10, 326 S.E.2d 881, 890 (1985).
The party challenging admission of the evidence has the burden
to show sufficient government involvement in the private citizen's
conduct to warrant Fourth Amendment scrutiny. United States v.
, 723 F.2d 1427 (9th Cir. 1984).
When a private party has engaged in a search and has seized
property or information, the protections of the fourth amendment
apply only if the private party in the light of all the
circumstances of the case, must be regarded as having acted as an
'instrument' or agent of the State. United States v. Sherwin
F.2d 1, 6 (9th Cir. 1976) (quoting Coolidge
, 403 U.S. 443, 29 L.
Ed. 2d 564 (1971)); see also State v. Sanders
, 327 N.C. 319, 395
S.E.2d 412 (1990). Once a private search has been completed,
subsequent involvement of government agents does not transform the
original intrusion into a government search. Id.
In State v. Sanders
, 327 N.C. 319, 395 S.E.2d 412 (1990), our
Supreme Court adopted a totality of the circumstances test to
analyze whether a private citizen's search or seizure is
attributable to the State and therefore subject to constitutional
at 334, 395 S.E.2d at 422.
Factors to be given special consideration
include the citizen's motivation for the
search or seizure, the degree of governmental
involvement, such as advice, encouragement,
knowledge about the nature of the citizen's
activities, and the legality of the conduct
encouraged by the police.
In its order denying defendant's motion to suppress, the trial
court made the following findings of fact: 13. Later that same day, on October 3, 2003,
at approximately 4:15 P.M., Fred Lovelace
called Investigator Morton and told her that
he had something for her. She asked him
what that meant and he said that he had a
video for her. Lovelace told Morton that it
was one of Harold Witherspoon's videos, that
Harold Witherspoon had obtained the video from
the internet, and that Harold Witherspoon had
given it to Fred Lovelace to watch.
20. On October 13, 2003, Investigator Morton
received a page from Fred Lovelace. Morton
returned this page by calling Lovelace.
Lovelace told Morton that he had just returned
with Witherspoon from Florida and needed to
give her another videotape. Investigator
Morton received this video tape which Fred
Lovelace told her allegedly showed what was
recorded from a hidden camera of a neighbor or
a neighboring house and a guy named Joe who
masturbated on the video. Fred Lovelace told
Investigator Morton that Harold Witherspoon
had given him this video prior to the time
that Harold Witherspoon and Fred Lovelace had
taken the trip to Florida.
21. Fred Lovelace advised Investigator Morton
that shortly after Fred Lovelace and Harold
Witherspoon returned from Florida, Witherspoon
advised Lovelace that it was time for him to
leave. This was based, in part, upon Fred
Lovelace not being receptive to Witherspoon's
22. Most of the contact between Fred Lovelace
and Investigator Morton was initiated by Fred
Lovelace. Investigator Morton never
encouraged or instigated or in any way
attempted to solicit Fred Lovelace to gain
evidence or otherwise procure or seize any
evidence, or information, or videotapes from
the home of Harold Witherspoon.
The trial court concluded that there was probable cause for
the issuance of the warrant. It further concluded that Fred
Lovelace was never the agent of the State nor was he an arm of the
government in obtaining evidence in this case. The standard of review in evaluating a trial court's ruling on
a motion to suppress is that the trial court's findings of fact are
conclusive on appeal if supported by competent evidence, even if
the evidence is conflicting. State v. Pickard, 178 N.C. App. 330,
__, 631 S.E.2d 203, 206 (2006). If the trial court's conclusions
of law are supported by its factual findings, we will not disturb
those conclusions on appeal. Id. The trial court's conclusions of
law are reviewed de novo and must be legally correct. Id.
Defendant's only assignment of error pertaining to the
findings of fact contained in Judge Poovey's order is that [t]he
Trial Court erred in finding as fact and concluding as a matter of
law that Fred Lovelace was never the agent of the State or an arm
of the government in obtaining evidence against Defendant.
In State v. Sutton, 167 N.C. App. 242, 605 S.E.2d 483 (2004),
this Court considered a similarly broad assignment of error in the
context of the appeal of an order denying a motion to suppress
It is well-established that [a] single
assignment generally challenging the
sufficiency of the evidence to support
numerous findings of fact, as here, is
broadside and ineffective. Wade v. Wade, 72
N.C. App. 372, 375-76, 325 S.E.2d 260, 266,
disc. review denied, 313 N.C. 612, 330 S.E.2d
616 (1985). . . . Because defendant has
failed to properly assign error to the trial
court's findings of fact, they are deemed
supported by competent evidence and are
binding on appeal. Koufman v. Koufman, 330
N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
Sutton, 167 N.C. App. at 244-245, 605 S.E.2d at 485. Thus, Judge Poovey's findings of fact are deemed supported by
the evidence, and our analysis is limited to whether these findings
support the conclusion of law that Fred Lovelace was never an agent
of the State nor was he an arm of the government in obtaining
evidence in this case. We hold that considering the trial court's
findings under the totality of the circumstances test, that they
do support the trial court's conclusion of law.
While it is clear that the substantial motivation of Fred
Lovelace was to help himself with respect to his own criminal
charges, this one factor is not of itself determinative of our
analysis. We must also consider the degree of governmental
involvement, such as advice, encouragement, knowledge about the
nature of the citizen's activities, and the legality of the conduct
encouraged by the police. Sanders, 327 N.C. at 334, 395 S.E.2d at
422. The trial court's findings clearly show that the Hickory
Police Department did not instruct, encourage, or initiate
Lovelace's conduct. When Lovelace contacted Morton on 3 October
2003 and told her that he had something for her, the response was
to ask what he meant by that. On both occasions where evidence was
given to Morton by Lovelace, 3 October 2003 and 13 October 2003, it
was Lovelace who initiated the contact, not Morton. The findings
show that Lovelace was not acting upon instructions of the Hickory
Police Department. The only government involvement was that Morton
received the items from Lovelace. See Kornegay, 313 N.C. at, 10,
326 S.E.2d at 890 (holding that [m]ere acceptance by the
government of materials obtained in a private search is not aseizure so long as the materials are voluntarily relinquished to
the government). Further, as to each videotape delivered to
Morton, the trial court specifically found that defendant had
given the video to Lovelace, and thus the videotapes were not
obtained illegally. See id.
The circumstances of the instant case are similar to the North
Carolina Supreme Court opinion, State v. Sanders, 327 N.C. 319, 395
S.E.2d 412, in which the Court held that a citizen did not act as
an agent of the State when he seized a stolen topaz ring and white
gold watch from defendant's home in a first degree murder and first
degree rape trial, even though the police (1) informed the citizen
of reward money; (2) warned the citizen that his plan was
dangerous; (3) and gave the citizen the code name Blueboy. Id.
Considering all of the findings of the trial court, and the
totality of the circumstances, we hold that Fred Lovelace was not
acting as an instrument of the State in obtaining the videotape
evidence. This assignment of error is without merit.
Motion for Appropriate Relief
On 26 June 2006, defendant filed a motion for appropriate
relief in this Court, during the pendency of this appeal. In this
motion, defendant asserted that one of the State's witnesses,
Kenneth Derrick Hoyle
, had been adjudicated mentally incompetent
prior to testifying at the trial of this matter. This fact was
apparently unknown to all parties at the time of trial. Defendant
contends that the legal incompetence of this witness constitutes
newly discovered evidence under N.C. Gen. Stat. . 15A-1415(c). N.C. Gen. Stat. . 15A-1418(b) provides:
When a motion for appropriate relief is made
in the appellate division, the appellate court
must decide whether the motion may be
determined on the basis of the materials
before it, or whether it is necessary to
remand the case to the trial division for
taking evidence or conducting other
In State v. Thornton
, 158 N.C. App. 645, 582 S.E.2d 308
(2003), we held:
Although the statute authorizes the appellate
court to initially determine a motion for
appropriate relief, State v. Jolly
, 332 N.C.
351, 420 S.E.2d 661 (1992), where the
materials before the appellate court, as in
this case, are insufficient to justify a
ruling, the motion must be remanded to the
trial court for the taking of evidence and a
determination of the motion, State v. Wiggins
334 N.C. 18, 431 S.E.2d 755 (1993).
at 654, 582 S.E.2d at 313.
In the instant case, while the documents attached to
defendant's motion for appropriate relief show that the witness was
declared legally incompetent on 24 February 2004, pursuant to N.C.
Gen. Stat. . 35A-1112, this does not mean that the witness was
disqualified from testifying in court under the provision of Rule
601(b) of the Rules of Evidence. We hold that the record before us
is insufficient for us to determine whether defendant's newly
discovered evidence meets the seven prerequisites for a new trial
on the grounds of newly discovered evidence set forth in State v.
Cronin, 299 N.C. 229, 243-44, 262 S.E.2d 277, 286 (1980) (quoting
State v. Casey, 201 N.C. 620, 624-5, 161 S.E. 81, 83-84 (1931)).
The trial court's order is affirmed as to the denial of
defendant's motion to suppress. Defendant's motion for appropriate
relief is remanded to the trial court for an evidentiary hearing.
Defendant has failed to argue his remaining assignments of error,
and they are deemed abandoned. N.C. R. App. P. 28(b)(6) (2007).
AFFIRMED in part and REMANDED in part.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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