Opinion
No. COA09-518.
Filed February 16, 2010.
Brunswick County No. 07CRS7925, 07CRS7927, 07CRS7928.
Appeal by defendant from judgment entered 2 July 2008 by Judge Thomas H. Lock in Brunswick County Superior Court. Heard in the Court of Appeals 14 October 2009.
Attorney General Roy Cooper, by Assistant Attorney General David B. Efird, for the State.
Paul F. Herzog for defendant.
A jury found Kelvin Allen McNeil (defendant) guilty of possession of a firearm by a felon; possession of personal property, not his own, on which the permanent identification marks have been altered, defaced, destroyed or removed for the purpose of concealing or misrepresenting the identity of said item; carrying a concealed weapon; resisting a public offer; and being a habitual felon. He received a sentence of 112 months to 144 months' imprisonment, but received a credit for 757 days spent in confinement prior to the date of judgment. Defendant now appeals.
On 3 July 2006, a Brunswick County grand jury indicted defendant for possession of a firearm by a felon and possession of personal property on which the permanent identification marks have been altered, defaced, or destroyed for the purpose of concealing and misrepresenting the identity of that property. On 14 August 2006, a Brunswick County grand jury indicted defendant for possession of marijuana up to 1/2 ounce. On 1 February 2007, the State dismissed the indictments for carrying a concealed weapon and resisting a public officer, specifying "indicted in federal court" as the reason. On 24 January 2007, a federal grand jury had indicted defendant for violation of 18 U.S.C. §§ 922(g)(1) and 924: possession, by a felon, of a firearm in or affecting commerce. 25 September 2007, a federal jury found defendant not guilty as to both charges.
Following defendant's acquittal in federal court, the State reinstated defendant's charges. On 12 October 2007, defendant was again indicted by a Brunswick County grand jury for the crimes of carrying a concealed weapon, resisting a public offer, possession of marijuana up to 1/2 ounce, possession of a firearm by a felon, and possession of personal property on which the permanent identification marks have been altered, defaced, or destroyed for the purpose of concealing and misrepresenting the identity of that property. He was also indicted for being a habitual felon. A jury found defendant guilty of all charges except possession of marijuana, which was dismissed, and the trial court entered judgment on 2 July 2008.
Defendant raises two issues on appeal: (1) Whether the North Carolina Constitution permits successive prosecutions and punishments for the same conduct in federal and state courts and (2) whether the trial court erred by denying his motions to dismiss for insufficiency of the evidence. For the reasons set out below, we hold that defendant received a trial free from error.
Defendant first argues that the trial court erred by denying his motions to dismiss because the principle of double jeopardy under section 19 of Article I of our state Constitution does not allow a defendant to be prosecuted for the same conduct by both the federal government and the state government. We disagree.
[T]he Supreme Court of the United States held that the doctrine of collateral estoppel was embodied in the Fifth Amendment's double jeopardy provision and applicable to the states through the Due Process Clause of the Fourteenth Amendment. The doctrine of collateral estoppel in criminal cases has also been recognized in North Carolina. "[C]ollateral estoppel" means that once an issue of ultimate fact has been determined by a valid final judgment, that issue may not be relitigated by the same parties in a subsequent action. Simply put, . . . collateral estoppel precludes the litigation of previously litigated issues of fact or law. We conclude, however, that collateral estoppel does not apply, under either the federal constitution or the state constitution, to criminal cases in which separate sovereigns are involved in separate proceedings and there is no privity between the two sovereigns in the first proceeding.
State v. Brooks, 337 N.C. 132, 147, 402 S.E.2d 475, 476 (1994) (quotations and citations omitted; alteration in original; emphasis added). Furthermore, this Court has explained that a defendant was properly prosecuted for the same robbery in both federal court and state court:
Though the act committed is the same in both cases, the offense is not. In its legal signification, of course, an offense, or crime, is not merely a bad act of some kind, it is the violation of a law. All sovereign states, and it is fundamental to our system of government that the United States of America and the various states are separate, distinct sovereign states, have the power to enact laws and prosecute those who violate them; and it is no bar to a prosecution that the offender has already been punished for the same act by another sovereign.
State v. Myers, 82 N.C. App. 299, 300, 346 S.E.2d 273, 273-74 (1986) (citations omitted).
Because our Supreme Court has already decided that the North Carolina Constitution permits the State to prosecute conduct that was previously prosecuted by the federal government, we hold that the trial court properly denied defendant's motions to dismiss on this basis.
We share the concern expressed in the concurring opinion that a defendant can be convicted in state court for the same conduct and charge after having been acquitted in the federal court. We agree that this practice implicates fundamental principles of double jeopardy as set forth in both the federal and state constitutions. However, we believe that Brooks and Myers hold that collateral estoppel does not apply to a criminal prosecution such as this one and that we are precluded from finding otherwise. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) ("Where one panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.").
Defendant next argues that the trial court erred by denying his motion to dismiss the charge of possession of personal property on which the permanent identification marks have been altered, defaced, or destroyed for the purpose of concealing and misrepresenting the identity of that property. He argues that the State presented insufficient evidence of the knowledge element of the crime to submit the charge to the jury. We disagree.
A motion to dismiss should be denied if there is substantial evidence "(1) of each essential element of the offense charged . . ., and (2) of defendant's being the perpetrator of such offense." State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (citation omitted). When reviewing a motion to dismiss based on insufficiency of the evidence, we "view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve." Id. (internal citations omitted).
N.C. Gen. Stat. § 14-160.1 provides, in relevant part:
(b) It shall be unlawful for any person knowingly to sell, buy or be in possession of any item of personal property, not his own, on which the permanent serial number, manufacturer's identification plate or other permanent, distinguishing number or identification mark has been altered, defaced, destroyed or removed for the purpose of concealing or misrepresenting the identity of said item.
N.C. Gen. Stat. § 14-160.1(b) (2009) (emphasis added).
The only element at issue here is whether defendant had knowledge that the serial number on the gun had been defaced to conceal the item's identity. The State presented sufficient evidence to imply defendant's knowledge from the circumstances. The police officer who recovered the gun from defendant testified that the serial number had been "filed off on this side here" and the jurors held and examined the gun to judge for themselves whether the defacement was obvious. Defendant also testified that he had handled guns before and had been handling guns since he was "a little boy." We believe that a jury could reasonably infer from these facts and circumstances that defendant knew that the gun's serial number had been defaced and that the purpose of defacing a serial number is to conceal the gun's identity.
Accordingly, we hold that defendant received a trial free from error.
No error.
Judge HUNTER, JR., Robert N., concurs.
Judge STEELMAN concurs in result by separate opinion.
Report per Rule 30(e).
I am greatly concerned with the broad concept embodied in the majority opinion that a defendant can be convicted in state court for the same conduct and charge after having been acquitted in the federal court. This appears to fly in the face of fundamental principles of double jeopardy set forth in the Fifth Amendment of the United States Constitution and Article I, section 19 of the North Carolina Constitution.
In this case, defendant was indicted in federal court under Title 18, sections 922(g)(1) and 924 of the United States Code. One of the elements of the federal offense under § 922(g)(1) is that he possessed the firearm "in or affecting commerce." 18 U.S.C. 922(g)(1). This element is not required for the offense of possession of a firearm by a felon under N.C. Gen. Stat. § 14-415.1. Based upon this additional element being required under the federal statute, defendant's argument must fail. See State v. Gardner, 315 N.C. 444, 454, 340 S.E.2d 701, 709 (1986) (In analyzing multiple offenses for double jeopardy purposes, "[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. If what purports to be two offenses actually is one under the Blockburger test, double jeopardy prohibits successive prosecutions. . . . When each statutory offense has an element different from the other, the Blockburger test raises no presumption that the two statutes involve the same offense." (quoting Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 309 (1932) (internal citations omitted)). I would affirm defendant's conviction upon this much narrower ground.