Episode 16: Peters, Watlington, and Bryant

[00:00:11.050] [SPEAKER_00] The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of objective reasonableness. What would the typical reasonable person have understood by the exchange between the officer and the suspect? The Court of Appeals has now held that a defendant's consent to search her car did not necessarily give officers consent to search her wallet, which she had placed on the roof of the car. We'll be talking about that case, State v. Peters, today. I'm Joseph Hyde with the University of North Carolina School of Government. And I'm Jonathan Holbrook with the North Carolina Conference of DAs. And this is Turning States, a podcast for North Carolina prosecutors and others interested in the criminal justice system in North Carolina. John, the defendant in Peters pled guilty to possession of the methamphetamine that was found in her wallet, but the Court of Appeals sent the matter back for further proceedings. Can you tell us a little bit about Peters?
[00:01:00.554] [SPEAKER_01] Sure. So this is a case from McDowell County. The Court of Appeals issued this one on April 16th of 2025. The incident happened back in July of 2022. It says that two officers with the Wildlife Resources Commission, it's not entirely clear if this was just a voluntary random check-in or if they were sent there or what, but it just says they came into contact with the defendant and another individual who were residing in a campsite in the vicinity of the Pisgah National Forest. As they interact with the defendant and this other person named Mr. Thomas, a lot of that is captured on body camera, and what it shows is that the defendant walks over to the car, opens up the passenger door, retrieves her wallet and the vehicle title from the wallet, hands that over to the officers. They've asked them for identification at the time. And so hands that over, showing her to be the owner of the vehicle. The officers are just talking with them and they ask if there's anything in the car that the officer might need to know about. And the defendant responded to that question with, no, sir. And then the officer asked, if he could check the car out, to which the other person, Mr. Thomas, responded, yeah, go ahead. It's been established that she's the owner, but he's the one who's driving the car. Now, as the court explains, neither the video of the encounter nor the testimony that came out at the hearing clearly establishes how this happened, but what happens is that the defendant's wallet ends up on top of the car. And so the trial court ultimately made a finding that it was the defendant herself who placed the wallet on top of the car, but it's not entirely clear where that comes from. It didn't seem to be shown in the video or established by the testimony. Anyway, as part of the search that the officers are doing through the car, you know, based on this, yeah, go ahead statement that they got from Mr. Thomas, as part of that, they also take the wallet off the top of the car, look inside of it, and there they discover a bag of methamphetamine. And so that's what the defendant ends up getting charged for. At the trial level, filed a motion to suppress that evidence. That was denied. So the defendant pleads guilty to the possession of methamphetamine, but reserving the right to appeal. And so that's what we are dealing with on this appeal. And the Court of Appeals begins to go through this by looking first at this question of consent. And they lay out a couple of legal principles that are relevant to this. They talk about first, for example, that a person who is not the lawful owner of the vehicle could still consent to the search of the vehicle, the person who's in apparent control of it. So That's good. And then they also talk about how the court has held that the consent of an owner to search their vehicle may be inferred from their silence when consent is given by the third party who's in apparent control of the car. So, you know, again, even though it's her car, we can sort of infer consent there from that silence. So the defendant impliedly consented to the search of the vehicle aside from her failure to object. They also point out, for example, the defendant was evidently sort of cleaning up an area of the interior of the car to facilitate the search. And when the officer said, that's fine, just leave everything in it, she said, oh, okay. So, you know, she's not objecting. I mean, she's sort of almost helping them by trying to organize or clean up things down there on the bottom. But the issue here is that the trial court really never made any finding about whether the defendant consented to the search of the wallet, which is outside of the vehicle. You remember that's just sort of sitting up on top of the car. It was neither, and the court says, neither inside nor otherwise attached to the vehicle. And so that's sort of where we get to the fallout. They say, since the trial court made no determination concerning whether consent was validly given for the search of the wallet where the methamphetamine was found, the trial court's findings cannot support its order denying defendant's motion to suppress. So based on that, then it gets to this question of, all right, so then what is the relief, right? What are we going to do with all of this now that we've determined that there is this kind of error? And so they say they have to decide whether the right mandate would be to vacate and remand it back down for further findings or whether the correct resolution would be to just reverse the order denying defendants motion to suppress. And here they say, we think the best course is to vacate the order and the judgment. And they say, remand the matter to the trial court for further findings. So, you know, it sort of raises this question of why are we doing this? As we said, it's unclear why the defendant put her wallet up on top of the car. If we're taking that as given, that she's the one who put it up there, they say she could have just left it up there inadvertently as she was cleaning up this other stuff in the front of the car, just set it up there for a moment to get it out of the way and forgot that it was there. And so if that were the case, then... Probably no. There would not be a basis for us to say that she's consented in some way to searching this other property just by, impliedly at least, consenting to the search of the car. But then they go on and they say, or it may be that she placed the wallet on the car as this gesture of consent to the search for the police because she carried away some other personal items from the car. So that could be, but the court explains that looking at this issue, the consent of the vehicle, the mere sort of, as they say, silence or acquiescence by the person who's got the privacy interest in it, that is not gonna be enough for us to basically presume consent. It's not enough to say, hey, if she didn't consent, she should have spoken up. No, we're not gonna do that. But there are other cases on this principle that, as they say, nonverbal behavior by a defendant may constitute a sufficient expression of consent. So, you know, again, we don't know exactly what happened here. But I mean, if the wallet was set up there on the car with sort of this go ahead kind of hand gesture or something like that, then maybe that would be
[00:06:41.949] [SPEAKER_00] this
[00:06:42.189] [SPEAKER_01] nonverbal indicator
[00:06:43.232] [SPEAKER_00] of
[00:06:43.291] [SPEAKER_01] consent.
[00:06:43.612] [SPEAKER_00] Hold on a second. I thought, isn't it true that at a motion to suppress hearing, the state has the burden of establishing the constitutionality of the search? The state has the burden to show that whatever evidence that it wants to get in was obtained in a constitutionally permissible manner. How is this not just giving the state another bite at the apple here? Sends it back for more findings of fact of whether consent was
[00:07:04.024] [SPEAKER_01] given. I think they're sending it back down for these further findings because they're saying it's In essence, we don't know which one it is, I guess, is what they're saying. I mean, if this was just left behind, I don't know, inadvertently or something, then this is just searching her wallet, which is outside of the car, which is the only thing she consented to. If that's all this is, then, you know, Joe, that would be no different than saying we're also going to search this second car parked next to it. You know, and there was no warrant, no consent to do that. But that may or may not be what's going on here. Yeah,
[00:07:33.379] [SPEAKER_00] I think that's the important point here is this is not a situation where the state failed to establish the constitutionality the first time. And so the Court of Appeals is giving us another chance. This is a situation where the hearing actually didn't resolve the question of whether that wallet had been properly searched or not. So all the Court of Appeals can do is send it back and say, look, you've got to make this determination before we can tell whether that evidence should be suppressed.
[00:07:56.834] [SPEAKER_01] That's right. I mean, they're not saying that as a matter of law, we failed to reach that standard. They're just sort of saying we didn't get there yet. Right. We you know, we didn't resolve that. And this is sort of their next next to last paragraph says on remand, the trial court may again deny defendant's motion, but only if it makes findings based on the evidence that the officer objectively believed the defendant was giving her clear and unequivocal consent to the officer's search of the wallet. Otherwise, it is the trial court's duty to grant defendant's motion. So, you know, let's take another run at this and see if we can get some clarity on exactly what was going on there with there was or was not consent for them to search the wallet. So, I mean, it's kind of an unusual set of facts, really, with this, you know, wallet left on top of the car. But hardly the only time we could imagine this happening. You know, there's going to be any number of cases where we've got the backpack that's sitting next to the car. Or, you know, Joe, you and I were talking earlier about I mean, defendants might limit their consent in some way. You know, sure, you can search the inside, but I don't have time for you to start digging through the trunk and popping the hood, but you could look in the passenger, you know, whatever it may be. So that would sort of be my takeaway for prosecutors is, number one, if you can, to convey to the law enforcement officers you work with that we really do want to get clarity on exactly what the scope of consent is. You know, this would have been a non-issue if the officer's question had been more along the lines of, hey, would you mind if I looked through the car and this stuff? You know, something like the stuff in the car or around the car. Could I look through everything in this area? Something that was a little broader than the car. But I know that in the vast majority of cases, by the time the prosecutor is involved in any of this, we're talking about a search that happened weeks or months ago. And this is now just a report that's landed on your desk. And so that would be my other takeaway for the prosecutors is if you have a situation like this and maybe it is a little bit unclear. If there are facts that we could draw out that would establish that that consent existed, then we need to make sure we're doing that and getting that on the record. If it is true that she made some gesture or she said something else that would indicate the consent included the little wallet on top of the car, not just everything else inside of the car, then we need to make sure we're getting that on the record.
[00:10:04.668] [SPEAKER_00] We need to talk- The other thing, I guess, in curating these orders, right? I think, Jonathan, you know more about this than I would, but if the parties draft the order, there's sometimes some conversation between the parties before it gets sent to the judge for signature. Sure, sure. And where you've got a situation involving multiple containers, it's necessary to make sure that the consent that the state is relying on is going to cover each of those containers, particularly where incriminating evidence is found in one but not another. Yeah.
[00:10:29.671] [SPEAKER_01] Exactly. The main container we were talking about here was the car,
[00:10:33.256] [SPEAKER_00] and yet
[00:10:33.937] [SPEAKER_01] the incriminating evidence was found in the container of the wallet.
[00:10:37.043] [SPEAKER_00] So
[00:10:37.663] [SPEAKER_01] I think you're exactly right. We need to make sure the order that's getting signed by the judge makes that link, right? Was it a warrant? Was it consent? Whatever got us into the container where we found the stuff we care about, let's make sure that's contained in the order. And, you know, if looking through the police report or looking through the testimony from the hearing, if we're struggling to point to something that makes that link, then that may be an indicator that we're going to have that issue. So worth talking to your officers about and certainly worth thinking about before you go into that next suppression hearing that deals with a second area or container kind of like this.
[00:11:11.216] [SPEAKER_00] The second case we had on for today was State v. Watlington. So this case has an interesting procedural history. This was an opinion that was originally released back in March, but then the Court of Appeals withdrew the opinion and reissued it. The new version of the opinion was issued back on April 16th of 2025, and that's the opinion we're going to be talking about today. This is a case out of Guilford County. And the facts were these, around 3.30 a.m. on October 12th of 2019, the defendant Felton, there are two defendants here, defendant Watlington and defendant Felton, but defendant Felton drove a 2006 Ford Explorer to an Exxon gas station on Westgate Boulevard in Greensboro. Defendant Watlington was a passenger in the car at that time. As Felton drove into the gas station in between the gas pumps, she hit another car, that car belonging to Shanna Good, who was sitting inside her car, Felton and Watlington exited the vehicle and approached Good. A crowd gathered. The confrontation became physical. Felton, according to the surveillance video, being the primary aggressor. And it looks like a lot of fights around the whole course of the gas station started breaking out. This is a number of people gathered, a lot of different conflicts going on. After a while, defendant Watlington got into the Ford Explorer and backed over the people that were gathered behind the car. She stopped. put the Ford Explorer in drive, and then drove forward over the people in front of her, swiping the side of Good's car, and crashed into another vehicle on the other side of the parking lot. Felton spends a few minutes shouting at the people on the ground, and then she gets into the passenger seat, and Watlington drove the two of them out of the parking lot. The incident left one victim dead, four victims seriously injured, and then one other victim injured as a result of being run over by defendant Watlington. Watlington was ultimately convicted of first-degree murder, four counts of assault with a deadly weapon inflicting serious injury, one count of assault with a deadly weapon, four counts of felony hit and run resulting in serious bodily injury, and one count of misdemeanor hit and run. And defendant Felton was convicted of accessory after the fact to all 11 of Watlington's convictions. This goes up to the Court of Appeals, and the Court of Appeals first dealt with the appeal of defendant Watlington. There's a number of issues here. I'm not going to go through every one in great detail. Several of those issues arose from a North Carolina Supreme Court opinion called State v. Jones, which in 1994 held that culpable negligence may not be used to satisfy the intent requirement for first degree murder. That gave rise to two different issues. Watlington argued that the trial court erred by submitting felony murder based on assault with a deadly weapon with intent to kill, inflicting serious injury. The Court of Appeals recognized that assault with a deadly weapon may be established by proving actual intent or culpable negligence. But here, the trial court instructed the jury that in order to find defendant guilty of felony murder, the state must prove the defendant committed assault with a deadly weapon by intentionally striking the victims with her car. Further, there was evidence to support the conclusion that the defendant acted with that intent to strike the victims, so there was not a meaningful possibility that that felony murder was based on culpable negligence as prohibited by that North Carolina Supreme Court case. Another issue that rose out of that case, Jones, Watlington argued that the trial court plainly erred by failing to instruct the jury that it could not convict her of felony murder if it found she acted with culpable negligence. Court of Appeals found that the trial court's instruction was sufficient, that it required the jury to find that Watlington intentionally struck the victim. So again, there was no possibility that it was a first degree murder based on culpable negligence in violation of Jones. The more interesting issue here actually had to do with the unit of prosecution, both for the defendant Watlington and for the defendant Felton. Defendant Watlington argued about that the trial court erred by permitting her to be convicted of multiple counts of felony hit and run. The Court of Appeals said that whether General Statute 20-166 defines the unit of prosecution by the act of crashing and leaving or by the number of victims injured as a result of the crash is an issue of statutory construction. It found that the statute was ambiguous and ultimately concluded that the rule of lenity required a holding that the unit of prosecution for felony hit and run under General Statute 20-166 is, quote, the number of crashes from which the defendant fled and not the number of victims injured. Here, Watlington was convicted of five counts of felony hit and run corresponding to the number of victims resulting from the two crashes. The Court of Appeals said Watlington could be convicted of only two violations, one for leaving the scene of each crash. So the Court of Appeals arrested judgment on three counts and remanded for resentencing. With regard to the defendant Felton, the state presented insufficient evidence of accessory after the fact. She argued the evidence was insufficient to support her convictions because there was no evidence she took any action making her an accessory. Court of Appeals found sufficient evidence of that. She argued there was a fatal variance between the indictments and the evidence at trial because the indictments failed to allege that her possession of the car keys made her somehow an accessory to these crimes committed by the defendant Watlington. Court of Appeals found no fatal variance. And then defendant argued that there was insufficient evidence of multiple counts of accessory after the fact for the same reason that defendant Watlington argued, saying the statute is ambiguous with regard to the unit of prosecution. Unlike the unit of prosecution for felony hit and run, however, the Court of Appeals found that the statute, General Statute 14-7, is unambiguous and that the unit of prosecution for accessory after the fact is each felony committed by the principal. So here, that did, in fact, entitle defendant Watlington Felton to some relief because it had arrested judgment on a few of those convictions for felony hit and run. It also had to arrest judgment on a few of those convictions for Felton's accessory after the fact because there could be only as many accessory after the facts as there were convictions for the underlying felony. So the Court of Appeals arrested judgment on three of Watlington's convictions and on three of Felton's convictions for accessory after the fact. There was also an issue with regard to the defendant Felton. She argued that the trial court erred by failing to intervene in the prosecutor's closing argument when the prosecutor argued that two defendants walking away together meant that Felton was helping Watlington escape detection, arrest, or punishment. That was the necessary kind of standard for a conviction for accessory after the fact. The Court of Appeals concluded that the state's argument was neither improper nor misleading. The argument was supported by the testimony from the officer who apprehended Watlington and Felton. It was based on the evidence and it was not unreasonable for the state to argue this inference from the evidence that Felton and Watlington were together when they were apprehended.
[00:17:42.952] [SPEAKER_01] Joe, this unit of prosecution issue is the most interesting one to me. I mean, I understand what the Court of Appeals is saying, that we go look at that general statute 20-166 and that what it's supposed to be based on really is how many crashes we had, not how many people got injured. I absolutely get that. This particular case is such an interesting and unique sort of puzzle to apply under that statute because Here, we're not just saying there was one car crash and four people inside that car were injured, right? This is sort of a unique situation where the crashes themselves, one could argue, are each of these individual people on foot being hit. You know, it seems like you could make an argument that unless they are literally standing side by side and hit in the exact same second, it is kind of a different crash, you know, when you hit this person and then this person and then this person.
[00:18:34.765] [SPEAKER_00] Right. Yeah, precisely. The rationale that the Court of Appeals kind of engages in here is there were two crashes because there were two kind of separate and distinct movements of the vehicle. That there was the driving backward over the victims, that the defendant stopped, and then there's the driving forward, both of which resulted in her running over a number of people. But I had the same concern that you did. Which one of these victims that got crashed into is being left out when we analyze that situation and come up with only two crashes? It also leads to some interesting puzzles. You've got the scenario of a defendant who's driving down a road and sideswipes, say, six cars that are parked in a line on the side of the street. Is that one crash or is that six? I think under the logic of Watlington, there's at least a plausible argument that that's only one crash. Whereas if the bouncing off the cars, maybe there was a car in between, or say the defendant hit cars on one side of the street and also cars on the other, is that going to be the number of crashes corresponding to the number of cars hit? Or is that the number of crashes corresponding to the single movement of leaving the scene? Unfortunately, this opinion doesn't really answer that question.
[00:19:38.345] [SPEAKER_01] You know, this put me in mind of like we recently had State v. Doove, for example, you know, the case talking about defining the units of prosecution for an assault. And they walked away from kind of that Rambert, you know, every trigger pull is its own kind of instance of assault. And they came up with this framework, basically, of when we're talking about an assault, we're going to say that to be multiple assaults, there has to be a distinct interruption. That's going to be different in every case, but we did at least kind of get a framework of how to decide that. We're going to look for lapse of time, change of location, different mechanism of assault. I feel like we are maybe at this point still waiting for some further development here to figure out what exactly is our framework to decide. Is this one crash side swiping six cars or is it three crashes, two cars a piece? It's a little hard to parse that out right now.
[00:20:27.063] [SPEAKER_00] Yeah, the analysis of the court of appeals doesn't provide a lot of illumination as to how we're going to resolve the next case. And I will say this about the prosecutor's decision to charge the number of felony hit and run corresponding to the number of victims. It has at least the benefit of objective accuracy, right? You can at least determine, you just count the number of heads of the people that were hit, of the people that were crashed into, and that's the number of felony hit and run. That would at least give us a bright line rule, whereas the the Court of Appeals rejected that approach and adopted this other approach that doesn't give us the same kind of clarity in figuring out how many crashes actually occur.
[00:21:03.268] [SPEAKER_01] And I would argue a pretty reasonable grounding in the statute. I mean, that it is a crash if you just run into a person on the sidewalk. I mean, that is an incident. So it didn't initially strike me as unreasonable to say these people are all hit. However brief the lapse may be, they are hit at different moments. And so one could argue, as the state did here, that each of those is a crash. But as you said, they're not willing to go that way. And there's some discussion in there, Joe, about applying the rule of lenity. I mean, you and I could sit here all day long and talk about you could do it this way, you could do it that way. But there is some discussion in there about the rule of lenity that we kind of have to go in the defendant's favor a little bit if it's unclear. And so maybe that's also driving them to decide it in a way that's a little more in the defense's favor. Right.
[00:21:47.404] [SPEAKER_00] Let me say one last note about Watlington because there's an interesting footnote about the defendant Felton's convictions. The defendant Felton, remember, was convicted as accessory after the fact to each one of Watlington's convictions. And one of Watlington's convictions included misdemeanor hit and run. The Court of Appeals noted in a footnote, we note Felton was convicted of accessory after the fact to the misdemeanor hit and run conviction. The statute 14-7 provides that an individual may be convicted of an accessory after the fact to any felonies committed by the principal. There is no such crime as accessory after the fact to a misdemeanor. And just for prosecutors kind of moving forward, if this situation comes up, that's kind of something to watch out for. It's funny because the Court of Appeals said Felton has not raised this issue, so we're not going to address it. But just be aware, there's no such offense as accessory after the fact to a misdemeanor. If that arises, I think that's something the trial court probably should take some corrective action about
[00:22:40.182] [SPEAKER_01] right so if we're looking at a possible co-defendant on a misdemeanor charge we just need to evaluate is there some other basis that we might say they are you know liable as a principal right is there some acting in concert or aiding and abetting or something going on uh but if it's only going to be accessory after then perhaps not The last case we had on for today was State v. Bryant. This is a shorter opinion, but we thought was noteworthy because it gives us a published opinion in an area where I think we've, as the court itself notes, has been kind of just relying on a few unpublished cases. This is one that was decided on April 16th of 2025, a case out of Union County. The defendant in this case was convicted of trafficking in heroin by possession, trafficking in heroin by transportation, and class one misdemeanor possession of drug paraphernalia. So the issue on appeal is only the class one misdemeanor for possession of drug paraphernalia. But where all this came about was from September 6th of 2021, officers in Monroe Police Department are responding to a report of a suspected shoplifting at a Belk's department store. They get there, they encounter the defendant and a couple of other people explain that Belk suspected or thought they might be shoplifting. So one of the officers asked the group to walk back out with him to their car. One of the people in the group agrees to a search of a handbag, and the detective discovers what he describes as a medicine bottle holding another type of smaller container. And inside that are some plastic baggies with a brown, powdery, tar-like substance. So that person, West, is being detained. But as West was being placed in handcuffs, it says that the detective saw this defendant sort of making a motion, they say, from the front of his body with his hand going around behind his back. The officers come over to ask to try to, they say, identify what he was holding and attempt to detain him. And at that point, the defendant takes off running. One of the officers sees the defendant throwing a container. After they take this defendant into custody, they're able to go back and locate this item that he threw. They searched the defendant, they found a clear glass pipe, a red straw, two clear plastic baggies. They find the container that he had thrown, and inside that there's four small baggies of a brown tar-like substance, and ultimately that's determined to be 29.53 total grams of heroin. So that's the basis for these charges, and as I said, he's convicted of these two serious trafficking charges but also the class one misdemeanor for drug paraphernalia and the defendant is arguing that the trial court should have granted his motion to dismiss on that misdemeanor paraphernalia charge because in their view the state failed to offer any sufficient evidence to establish this intent element you remember For drug paraphernalia, it used to just be the one charge, class one misdemeanor. We now have the two under 90-113.22. It is a class one misdemeanor if it is paraphernalia that is intended to be used for something other than marijuana. And then under 90-113.22 , it would be what they sort of statutorily define as a lesser included misdemeanor if it is paraphernalia simply for marijuana. And so the defendant is arguing that this element of intent, saying the state didn't present sufficient evidence that he intended to use that pipe in connection with some controlled substance other than marijuana. They say the defendant contends the pipe could have been used to smoke marijuana or for some other use, rather than for any other controlled substance besides marijuana. And so, as I said, the Court of Appeals notes that most of the cases we've had so far dealing with this are unpublished. But they identify a couple of them. State v. Gamble was one that we had decided back in, I believe, 2012. Had another one, State v. Harley, an unpublished case from back in 2006. But they look at those cases and say that the kinds of factors that they've looked at to find sufficient evidence of this intent to use it for something other than marijuana, like in the Gamble case, for example, that these alleged crack pipes were found in the same room as the cocaine. And an officer was able to testify that he knew that this glass pipe that was found in a shoebox was a crack pipe because of the way that it was charred up and broken at the ends and stuffed with a Brillo pad. You know, these indicators of what it was the person was going to be using it for. They contrast that with yet another case called State v. Hedgeco from back in 1992, contrasting that one where the only evidence that was presented at trial was that there was this hypodermic syringe and needle found on the defendant and testimony from an officer that those items were, quote, used to introduce drugs of some kind into the body. So in this case, the Court of Appeals looks at the evidence that was presented by the state to say, you know, essentially, which is this? Is this more like Gamble, where we've got this other sort of corroborating evidence, the burn marks and where it's found and so forth? Or is this more like Hedgeco, where other than the officer's sort of speculation that it might have been used to introduce drugs of some kind, we don't really have anything to indicate that this was paraphernalia that was indeed intended to be used as a violation of the Controlled Substances Act. And looking at the state's evidence, they conclude this is really more like the gamble type of case. You know, they talk about how the defendant possessed the pipe and these baggies of heroin literally right there in his same right front pocket. The pipe was admitted into evidence and presented to the jury. And like in those other cases, it's visibly charred, consistent with signs of prior use. And they also, and I think this is real important for prosecutors, they talk about how there was testimony drawn out from the officers, like in Gamble and Harley, where they talk about how based on their training and experience, yes, this pipe is consistent with narcotic use. And your detectives, they're gonna know that, right? They have had that training about, why would you think this is a crack pipe and not simply a marijuana pipe? They're gonna know how it gets used, how it gets abused, what kind of damage it's gonna show, along with these other sort of incriminating factors. So I thought, as I said, it was a noteworthy case because it's a good published opinion we can look at outside of just some of these couple of unpublished that we've had up to this point. But also possession of drug paraphernalia, I know, is a very common charge. You know, this is something that oftentimes kind of low level drug offenses might get pled down to this class one misdemeanor, a compromise everybody can live with. It's going to take it down out of the felony range, but still be something that would count for a prior record. It gets used a lot. But Joe, you know, you and I have also looked at a number of cases recently where even cases settle by plea. We got to make sure that we are providing the factual basis that's going to support that plea. just so that we aren't looking at an MAR down the road or something like that. And so it's helpful for prosecutors, but I also think it's a good reminder that we want to make sure when we give the factual basis on that compromise, possession of drug paraphernalia plea, that we're putting something in the record about what's why it is that there's a legitimate reason for us to think this is not just some class three marijuana pipe, this is some class three other controlled substance violation
[00:29:15.916] [SPEAKER_00] pipe. And we're clear, Jonathan, that this exclusion in the statute is an element that has to be proven by the state, right? Because it says possession of drug paraphernalia except for this marijuana-related paraphernalia, right? This is something that affirmatively has to be shown by the state's evidence to exclude the possibility that it was something used exclusively for marijuana. Is that right?
[00:29:34.201] [SPEAKER_01] Right, that's how they're approaching it in this case. You know, they're saying that that's what the defendant is challenging. He's saying that you did not offer any evidence of my intent, right? That it's paraphernalia that I'm possessing with this intent to use for something other than simply marijuana, for some other controlled substance act violation. And so that's what it was on the state to show, but they're saying that the state did do that here.
[00:29:54.953] [SPEAKER_00] And the other weird thing about this, right, is that... possession of marijuana paraphernalia is by statute a lesser included, even though that exclusion in the greater offense would seem to make those mutually exclusive offenses. Presumably, the argument here is not so much that the trial court erred by failing to dismiss the charge altogether, but by not submitting to the jury the lesser included offense of possession of marijuana paraphernalia?
[00:30:18.217] [SPEAKER_01] You know, Joe, yeah, you and I have talked about this before. The example that I always think of is by statute, right? Improper equipment listed as a lesser included offense of a speeding ticket. And that, I mean, it doesn't really make a lot of sense. This in some ways is even more interesting because you're, and they talk about it, Joe, in footnote two to the opinion, they mentioned possession of marijuana drug paraphernalia is a separate lesser included offense of general statute 90-113.22 of And then they reference this 90-113.22a defining possession of marijuana drug paraphernalia as a class three misdemeanor. But you're right. So statutorily it is, even though we might say conceptually it's kind of odd, right? That a lesser included offense of paraphernalia intended to be used for something not marijuana, it's a lesser included offense that it would be a pipe intended to be used for marijuana. I think that maybe the way we sort of understand that or rationalize it is that if I've failed to prove that it was intended to be used for something other than marijuana, then we are just sort of falling down to, well, then this would be what I could prove is that it's a pipe intended at least for that.
[00:31:25.525] [SPEAKER_00] Well, that's all we've got for today. In this episode, we discussed State v. Peters regarding the scope of a consent to search, State v. Watlington, which dealt with a unit of prosecution for felony hit and run, and State v. Bryant regarding the sufficiency of the state's evidence of misdemeanor possession of drug paraphernalia. Turning States is a collaboration between the University of North Carolina School of Government and the North Carolina Conference of District Attorneys. We are coming to you from the recording studio at the School of Government in beautiful Chapel Hill. Special thanks to our producer, Paul Bonner, and to Gustav Holtz for our music. If you liked what you heard today, if you have questions, comments, concerns, if there's a topic you'd like for us to cover, please contact us. My name is Joseph Hyde, and I can be reached at jhyde at sog.unc.edu. That's jhyde at
[00:32:13.728] [SPEAKER_01] sog.unc.edu. And I'm Jonathan Holbrook. I can be reached at jonathan.p.holbrook at nccourts.org. That's j-o-n-a-t-h-a-n dot p dot h-o-l-b-r-o-o-k at n-c-c-o-u-r-t-s dot o-r-g. Thank you, John. That would be the showing for the state. Thanks, Joe. Hope it helped.