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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-275

NORTH CAROLINA COURT OF APPEALS

Filed: 07 August 2007

STATE OF NORTH CAROLINA

v .                         Catawba County
                            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- appellant.

    STEELMAN, Judge.

     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 hearing.

Factual Background:
    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 masturbating.
    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. Snowadzki, 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, 539 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 scrutiny.” Id. 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.

Id.

    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 sexual advances.

        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 evidence.
        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 proceedings[.]

    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).

Id. 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)).

Conclusion
    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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