State v. Osborne

• Court: Court of Appeals of North Carolina
• Decided: December 15, 2020
• Docket: 18-9-2
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA18-9-2

Filed: 15 December 2020

Randolph County, No. 14 CRS 55829

STATE OF NORTH CAROLINA

v.

SHELLEY ANNE OSBORNE

On remand by opinion of the North Carolina Supreme Court filed 16 August

2019 in State v. Osborne, 372 N.C. 619, 831 S.E.2d 328 (2019), reversing and

remanding this Court’s decision filed 2 October 2018. Case originally appealed by

defendant from judgments entered 21 February 2018 by Judge Edwin G. Wilson Jr.

in Randolph County Superior Court. Heard in the Court of Appeals 20 August 2018

and 23 September 2020.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Alesia Balshakova and Assistant Attorney General Kristin J. Uicker, for the State.

Meghan Adelle Jones for defendant.

Hicks McDonald Noecker LLP, by David W. McDonald, court-assigned amicus curiae.

DIETZ, Judge.

Under state law, a person suffering a drug overdose “shall not be prosecuted”

for certain drug crimes if the evidence of those crimes was obtained because the

person sought medical assistance. N.C. Gen. Stat. § 90-96.2(c). The obvious purpose STATE V. OSBORNE

Opinion of the Court

of this statute is to save lives by encouraging people to call emergency personnel when

someone is experiencing a drug overdose.

On remand from the Supreme Court, the central issue in this appeal is whether

this statute, which the General Assembly described as an “immunity,” is a

jurisdictional limit that can be raised at any time, or is a more traditional immunity

defense that must be raised and preserved at trial. This is a critical question because

Defendant Shelley Anne Osborne never raised this issue, either in the trial court or

on appeal. The question is before us solely because a Supreme Court justice, in a

concurring opinion in this case, invited this Court to examine it on remand.

As explained below, our State’s criminal laws treat immunity from prosecution

and subject matter jurisdiction as distinct concepts. Thus, we can interpret an

immunity provision as jurisdictional only if the statute’s language provides a “clear

indication” that it is meant to be jurisdictional. That is not the case with this statute,

and we therefore hold that N.C. Gen. Stat. § 90-96.2(c) contains a traditional

immunity defense that must be raised by the defendant in the trial court to be

preserved for appellate review.

We therefore decline to address this issue because it was not raised and

preserved for appellate review. We also find no plain error in the remaining

arguments before us on remand.

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Facts and Procedural History

In late 2014, police responded to a call about a possible overdose in a hotel

room. After arriving at the hotel room, officers found Defendant Shelley Anne

Osborne in the bathroom. She was unconscious, unresponsive, and turning blue.

Osborne regained consciousness after emergency responders arrived and

administered an anti-overdose drug. When Osborne regained consciousness, she told

an officer that she “had ingested heroin.”

The responding officers searched the hotel room and found Osborne’s two

children, who were around four or five years old. The officers also found multiple

syringes, spoons with burn marks and residue on them, and a rock-like substance

that appeared to be heroin. An officer conducted a field test on the rock-like

substance, which yielded a “bluish color” indicating a “positive reading for heroin.”

The State charged Osborne with possession of heroin and two counts of

misdemeanor child abuse. At trial, law enforcement officers testified about

discovering the rock-like substance; described how it resembled heroin; explained the

results of the field test indicating the substance was heroin; and discussed how other

objects found in the hotel room, including the syringes and spoons with burn marks,

were common paraphernalia used to consume heroin. An officer also performed a field

test on the substance seized from the hotel room in open court and displayed the

results to the jury. Osborne did not object to any of this evidence.

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The jury convicted Osborne on all charges, and the trial court sentenced her to

6 to 17 months in prison for possession of heroin and a consecutive sentence of 60

days for the two counts of misdemeanor child abuse. The trial court suspended both

sentences. Osborne appealed.

This Court vacated Osborne’s conviction for possession of heroin, reasoning

that there was no scientifically valid chemical analysis or other sufficient testimony

to establish that the alleged unlawful substance was heroin. State v. Osborne, 261

N.C. App. 710, 715, 821 S.E.2d 268, 272 (2018), rev’d and remanded, 372 N.C. 619,

831 S.E.2d 328 (2019).

The Supreme Court took the case on discretionary review, reversed this Court’s

holding with respect to the sufficiency of the evidence, and remanded with

instructions to consider Osborne’s plain error evidentiary challenge, which was

mooted by this Court’s prior opinion. State v. Osborne, 372 N.C. 619, 632, 831 S.E.2d

328, 337 (2019).

At oral argument and in a concurring opinion, Justice Earls discussed a state

statute, N.C. Gen. Stat. § 90-96.2, that provides “limited immunity” for certain crimes

connected to a drug overdose. Justice Earls invited this Court to “also address on

remand the question of the application of N.C.G.S. § 90-96.2 to this case” including

“whether the Good Samaritan/Naloxone Law is a limit on the court’s jurisdiction to

prosecute the defendant in this case” or, “if not purely jurisdictional, whether it is an

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issue that can be waived.” Id. at 633, 636, 831 S.E.2d at 338–339 (Earls, J.,

concurring).

On remand to this Court, we ordered supplemental briefing from the parties

on the issue identified in the concurring opinion from the Supreme Court. Osborne’s

counsel filed a notice “respectfully declining to submit supplemental briefing.”

Counsel explained that a “lien will be entered” against Osborne for the attorneys’ fees

and expenses of court-appointed counsel “because our Supreme Court denied her the

highest relief sought on appeal.” Thus, counsel explained, Osborne “has not given the

undersigned authorization” to file a supplemental brief which would result in

additional attorneys’ fees and expenses from counsel.

In response, this Court appointed David W. McDonald as court-assigned

amicus curiae to address the issues identified in the supplemental briefing order from

Osborne’s perspective.

Analysis

I. Statutory immunity under N.C. Gen. Stat. § 90-96.2

We first address the statutory immunity issue raised by the concurring opinion

from the Supreme Court. At the time of Osborne’s trial, N.C. Gen. Stat. § 90-96.2(c)

provided that any “person who experiences a drug-related overdose and is in need of

medical assistance shall not be prosecuted” for felony possession of less than one gram

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of heroin if the evidence for the prosecution “was obtained as a result of the drug-

related overdose and need for medical assistance.” Id. (amended 2015).

The threshold question for this Court is whether we may consider this issue at

all. Osborne never raised the issue—not in the trial court and not on appeal. The

issue arose, for the first time, in questions from a justice at the oral argument in the

Supreme Court.

Ordinarily, “to preserve an issue for appellate review, a party must have

presented to the trial court a timely request, objection, or motion.” N.C. R. App. P.

10(a)(1). Issues not raised in the trial court are waived on appeal. State v. Haselden,

357 N.C. 1, 10, 577 S.E.2d 594, 600 (2003).

But this waiver rule does not apply to defects in the trial court’s subject matter

jurisdiction because subject matter jurisdiction “cannot be conferred by consent or

waiver.” State v. Mauck, 204 N.C. App. 583, 586, 694 S.E.2d 481, 483 (2010). As a

result, an “issue of subject matter jurisdiction may be raised at any time, and may be

raised for the first time on appeal.” State v. Frink, 177 N.C. App. 144, 147, 627 S.E.2d

472, 473 (2006). The interaction of these two contrasting preservation rules means

that our ability to consider this statutory immunity argument turns on whether it

impacts the trial court’s subject matter jurisdiction.

We hold that it does not. “The extent, if any, to which a particular statutory

provision creates a jurisdictional requirement hinges upon the meaning of the

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relevant statutory provisions.” State v. Brice, 370 N.C. 244, 251, 806 S.E.2d 32, 37

(2017). In interpreting a statute, our task “is to determine the meaning that the

legislature intended upon the statute’s enactment. The intent of the General

Assembly may be found first from the plain language of the statute, then from the

legislative history, the spirit of the act and what the act seeks to accomplish.” State

v. Rieger, 267 N.C. App. 647, 649, 833 S.E.2d 699, 700–01 (2019) (citation omitted).

We begin with the statute’s plain language. The relevant provision is contained

in a statute entitled “Drug-related overdose treatment; limited immunity.” The

relevant provision then describes how, if certain conditions are met, a person

experiencing an overdose “shall not be prosecuted” based on evidence obtained when

emergency personnel respond to provide medical assistance. N.C. Gen. Stat. § 90-

96.2.

This statutory language indicates Section 90-96.2(c) creates an immunity from

prosecution. This type of immunity, to be fair, is stronger than a typical affirmative

defense. Immunities are not mere bars to conviction or judgment; they are protections

against being charged or haled into court at all. See generally Ballard v. Shelley, 257

N.C. App. 561, 564, 811 S.E.2d 603, 605 (2018). Even so, immunities are not

ordinarily treated as matters of subject matter jurisdiction; immunities generally are

waived if not asserted and cannot be raised for the first time on appeal. See, e.g.,

Lambert v. Town of Sylva, 259 N.C. App. 294, 301, 816 S.E.2d 187, 193 (2018); Nw.

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Fin. Grp., Inc. v. Cty. of Gaston, 110 N.C. App. 531, 534, 430 S.E.2d 689, 691 (1993).

But the use of the phrase “immunity” in Section 90-96.2(c) is not

determinative. The General Assembly is “free to attach the conditions that go with

the jurisdictional label” to something that typically is not jurisdictional. Tillett v.

Town of Kill Devil Hills, 257 N.C. App. 223, 225, 809 S.E.2d 145, 148 (2017). This

means the General Assembly could label a provision an “immunity” but have that

provision deprive trial courts of subject matter jurisdiction. For this to occur, there

must be a “clear indication that the provision was meant to carry jurisdictional

consequences.” Id.

Here, that is not the case. Nothing in N.C. Gen. Stat. § 90-96.2(c) contains a

clear indication that it must be jurisdictional. The statute “uses the term ‘shall not’

which is mandatory, not permissive.” State v. Osborne, 372 N.C. 619, 636, 831 S.E.2d

328, 339 (2019) (Earls, J., concurring). But our Supreme Court has acknowledged that

statutory provisions often “are couched in mandatory terms” but “that fact, standing

alone, does not make them jurisdictional in nature.” Brice, 370 N.C. at 253, 806

S.E.2d at 38. Moreover, other portions of our State’s criminal statutes, applicable in

this case, distinguish between immunities and jurisdictional arguments. For

example, under N.C. Gen. Stat. § 15A-954, there are separate categories describing

how to move to dismiss when the “defendant has been granted immunity by law from

prosecution” and when the “court has no jurisdiction of the offense charged.” Id.

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§ 15A-954(a)(8), (9). Again, this demonstrates that the General Assembly views

immunities and subject matter jurisdiction as distinct legal concepts. When drafting

N.C. Gen. Stat. § 90-96.2(c), the legislature could have included language signaling

that this provision was different from other immunities and should be treated as

jurisdictional. It did not do so.

In sum, we hold that N.C. Gen. Stat. § 90-96.2(c) does not contain a clear

indication that it is a jurisdictional requirement, and we therefore treat the provision

as one granting traditional immunity from prosecution. This type of immunity must

be asserted as a defense by the defendant in the trial court proceeding. State v.

Rankin, 371 N.C. 885, 889, 821 S.E.2d 787, 792 (2018). The failure to raise the issue

waives it and precludes further review on appeal. Haselden, 357 N.C. at 10, 577

S.E.2d at 600.

Applying these principles, we hold that Osborne waived any arguments

concerning immunity from prosecution under N.C. Gen. Stat. § 90-96.2(c) by failing

to raise the argument in the trial court. We thank the court-assigned amicus curiae

for the well-reasoned supplemental briefing and thoughtful arguments to this Court,

but we ultimately conclude that the arguments raised by the amicus cannot be

considered by this Court on direct appeal. Osborne must raise those arguments, if at

all, through a motion for appropriate relief in the trial court asserting ineffective

assistance of counsel.

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II. Plain error challenge to drug identification

We next address Osborne’s remaining argument from her initial appellate

brief. Osborne argues that the trial court committed plain error by admitting the

results of field tests conducted on the alleged heroin found at the crime scene and by

admitting the lay testimony of officers explaining that the substance resembled

heroin.

“For error to constitute plain error, a defendant must demonstrate that a

fundamental error occurred at trial.” State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d

326, 334 (2012). Our Supreme Court has emphasized that we should invoke the plain

error doctrine “cautiously and only in the exceptional case” where the consequences

of the error seriously affect “the fairness, integrity or public reputation of judicial

proceedings.” Id. (citation omitted).

Here, law enforcement officers responded to a call about a possible overdose in

a hotel room and found Osborne unconscious. When Osborne regained consciousness,

she told the officers that she had used heroin. Officers found a rock-like substance

resembling heroin in the hotel room. They also found drug paraphernalia, such as

syringes and spoons with burn marks and residue, that are used for consuming

heroin. To be sure, much of the State’s evidence identifying that rock-like substance

as heroin, such as the field test results, might have been excluded had Osborne

objected. But she did not object. And, as explained above, the State had compelling

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evidence that the substance was heroin even setting aside the challenged evidence.

Indeed, our Supreme Court described the record in this case as containing “ample

evidence tending to show that the substance that defendant allegedly possessed was

heroin.” Osborne, 372 N.C. at 631, 831 S.E.2d at 337. In sum, the trial court’s decision

not to intervene, on the court’s own initiative, to exclude some of this evidence, when

there was “ample” evidence that the substance was heroin, is simply not the sort of

fundamental error that calls into question the “fairness, integrity or public reputation

of judicial proceedings.” Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (citation

omitted). Accordingly, we find no plain error in the trial court’s judgment.

Conclusion

We find no plain error in the trial court’s judgment.

NO PLAIN ERROR.

Chief Judge McGEE and Judge HAMPSON concur.

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