State v. Locklear

636 S.E.2d 284, 180 N.C. App. 115, 2006 N.C. App. LEXIS 2248
Court of Appeals of North Carolina·Decided November 7, 2006·No. COA05-1666·Published·Cited by 5 cases

Opinion

JACKSON, Judge.

On the evening of 7 June 2004, Eric Prine (“Prine”) was driving on Franklin Boulevard in Gastonia with his girlfriend, Tashia Clontz (“Clontz”), as his passenger. Prine and Clontz saw a man breaking out the glass window in a pharmacy and exiting the pharmacy, along with another man. Both of the men were carrying boxes and bottles. Prine and Clontz also saw a third man waiting in a nearby truck, and they watched as the three men drove off in the truck. Prine telephoned the police, who instructed him to follow the truck and obtain the vehicle’s license plate number. Prine and Clontz followed the truck onto the highway, pulled up alongside the truck, and observed that Hugh Locklear, Sr. (“defendant”) was driving. Law enforcement officials soon caught up with the truck, and the truck, pursued by the police, sped off the highway at an exit and ran off the road.

*118 With the truck at rest on an embankment, the three men fled the vehicle, and police officers pursued on foot. Officers quickly apprehended one of the men — Hugh Locklear, Jr. — during the pursuit. Another officer, who circled the area in his vehicle, spotted a white male using a payphone and wearing dark clothing similar to that worn by the driver of the truck. The officer approached the man, who was breathing heavily and sweating, and asked him for identification. The man presented the officer with Florida identification for Hugh Locklear (defendant). Defendant complied with the officer’s request to return to the truck, where a witness identified him as the driver. The officer arrested, handcuffed, and placed defendant in the officer’s vehicle.

The same officer then searched the truck and found four bottles of Hydrocodone pills, along with an occupational tax certificate for Hugh Locklear, on the floor of the truck. These bottles were similar to bottles recovered from a black bag that Hugh Locklear, Jr. had been carrying when he fled the truck.

Upon returning to the police vehicle, the officer discovered that the back rear glass had been broken out and that defendant was gone. The officer obtained the assistance of two other officers, including a K-9 officer, in locating defendant. After being found by the officers, defendant became belligerent and lunged and growled at the K-9 officer’s dog. Defendant spit on two police officers as they placed him into another police vehicle.

Prine and Clontz arrived at the scene shortly after defendant and the two other men had fled the vehicle. When the police returned with two men, Prine and Clontz identified defendant and Hugh Locklear, Jr. as having been in the truck. Specifically, they identified defendant as the driver of the truck and one of the two men who exited through the pharmacy’s broken window. Prine and Clontz again identified defendant when later presented with photographs by law enforcement officials. Further investigation later revealed a third individual, Harry Carl Sapp, Jr. (“Sapp”), as the man who had been waiting in the truck at the pharmacy.

Officers ultimately retrieved a total of ten sealed containers of controlled substances from the scene — the same number of pill bottles that the owner of the pharmacy reported missing. This included three bottles of 1,000 7.5-milligram dosages of Hydrocodone, three bottles of 1,000 ten-milligram dosages of Hydrocodone, three bottles of 1,000 1000-milligram dosages of Propoxyphene Napsylate, and one *119 bottle of 1,000 ten-milligram dosages of Hydrocodone of a different composition than that contained in the three bottles above. In total, there were 5,600 grams of Hydrocodone, a Schedule III substance also known as Vicodin, and 2,800 grams of Propoxyphene Napsylate, a Schedule IV substance also known as Darvocet.

On 19 August 2005, the jury found defendant guilty of the following charges: felony breaking and entering; felony larceny; trafficking opiates by possession; trafficking opiates by transportation; possession of Darvocet; possession with intent to manufacture, sell, or deliver Darvocet; maintaining a vehicle, dwelling, or place for controlled substances; reckless driving; speeding; failing to heed a light or siren; failing to stop for a steady red light; driving the wrong way on a one-way street or road; and assault on a law enforcement animal. The trial, court imposed a sentence of 225 to 275 months imprisonment and a fine of $500,000.00. Defendant gave timely notice of appeal to this Court.

As a preliminary matter, we note that defendant’s brief violates the North Carolina Rules of Appellate Procedure. As required pursuant to Rule 28, “[t]he body of the argument. . . shall contain citations of the authorities upon which the appellant relies.” N.C. R. App. P. 28(b)(6) (2006). Defendant’s brief fails to include any citations to statutes or case law to support his third argument. He provides supporting authority for his proposed standard of review, but in the discussion section of his argument, his only citation is a generalized reference to the Fifth and Fourteenth Amendments of the U.S. Constitution and to Article I of the North Carolina Constitution. As defendant fails to cite any legal authority in support of his third argument, that argument may be deemed abandoned.

Furthermore, defendant’s brief fails to contain “[a] statement of the grounds for appellate review.” N.C. R. App. P. 28(b)(4) (2006). The Rules of Appellate Procedure also provide that this required statement “shall include citation of the statute or statutes permitting appellate review.” Id. Defendant has failed to include this short yet significant section in his brief, and thus, the instant case is not properly before this Court. See Viar v. N. C. Dep’t of Transp., 359 N. C. 400, 402, 610 S.E.2d 360, 361 (noting that “[i]t is not the role of [our state’s] appellate courts to create an appeal for an appellant.”), reh’g denied, 359 N.C. 643, 617 S.E.2d 662 (2005).

It is well-established that “[t]he North Carolina Rules of Appellate Procedure are mandatory and ‘failure to follow these rules will sub *120 ject an appeal to dismissal.’ ” Id. at 401, 610 S.E.2d at 360 (quoting Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999)). Nevertheless, in our discretion, we will review defendant’s arguments raised in his brief and reply brief. See N.C. R. App. P. 2 (2006).

In his first argument, defendant contends that the trial court abused its discretion in denying defendant’s motion for a mistrial upon discovery that an alternate juror had entered the jury room. We disagree.

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State v. Locklear, 636 S.E.2d 284, 180 N.C. App. 115, 2006 N.C. App. LEXIS 2248 (N.C. Ct. App. 2006).

636 S.E.2d 284 (State v. Locklear) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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