An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1147
                        NORTH CAROLINA COURT OF APPEALS

                               Filed: 1 April 2014


STATE OF NORTH CAROLINA

      v.                                      Alamance County
                                              No. 12 CRS 52478
KATHY WELLS YORK



      Appeal by Defendant from judgment entered 2 May 2013 by

Judge James E. Hardin, Jr., in Alamance County Superior Court.

Heard in the Court of Appeals 5 March 2014.


      Attorney General Roy Cooper, by Special                   Deputy    Attorney
      General Kathryn J. Thomas, for the State.

      Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr.,
      for Defendant.


      STEPHENS, Judge.


                      Factual and Procedural Background

      Defendant Kathy Wells York appeals from the trial court’s

entry    of   judgment    based    upon   her    conviction     of   resisting     a

public     officer.      The   evidence     at   trial    tended     to   show   the

following:      On 29 April 2012, Defendant and her husband went to

a local Belk department store so that Defendant could purchase
                                             -2-
some    blouses     for       an   upcoming      trip.         Defendant     had    recently

gotten eyeglasses with a new prescription, and the glasses were

making her nauseated.                While shopping, Defendant felt sick and

gave several items to her husband to purchase while Defendant

went to the store restroom.                 What occurred next was disputed at

trial.

       According        to    Defendant,      after      vomiting    in      the   restroom,

Defendant washed her face and freshened her makeup.                            As she left

the restroom, Defendant took a purse from the top of the paper

towel    holder,        assuming      it   was     her    own     make-up     case.        She

purchased     several         tops   and    left    the    store     without       incident.

Once home, Defendant discovered the purse was not her own.                                 She

and her husband found a phone number on the cellphone in the

purse and called it.                 Defendant and her husband were able to

reach    a   man    who      identified     himself       as     Michelle     Shamberger’s

husband.      Defendant explained that she had Shamberger’s purse

and    agreed      to    return      to    Belk    to     give    the     purse     back    to

Shamberger.

       The   State’s         witnesses     presented       a     different     version     of

these    events.             Shamberger     was    an     employee      at    Belk.        She

testified that she had left her purse on top of the paper towel

holder in the store’s restroom while on a break.                               She noticed
                                        -3-
another woman wash her hands and leave the restroom with her

purse.   Shamberger called out to the woman, but the woman did

not   stop.      Shamberger      worked      with    a   store    loss    prevention

specialist, to determine what had happened to her purse.                         After

reviewing store video tapes, Shamberger identified Defendant as

the woman in the bathroom when her purse disappeared.

      Officers    Cameron      Leight       and     Christopher    Smith    of     the

Burlington Police Department were called to the store.                           Smith

called the cellphone Shamberger had left in her purse.                      A woman

answered, but when Smith identified himself as a police officer,

the call was disconnected.            A few minutes later, Leight received

a return call from the cellphone that had been in Shamberger’s

purse.   It was Defendant, stating that she had found a purse and

cellphone and was going to return them to Belk.

      When Defendant and her husband pulled up to the sidewalk

outside Belk, they saw a man, a woman, and two uniformed police

officers, Leight and Smith.            Defendant walked toward the woman,

who was standing near one of the officers, as the other officer

approached     the     car    where    Defendant’s       husband    was     waiting.

Defendant     handed    the   purse    to    Shamberger     who    confirmed      that

nothing was missing.          At that point, Leight told Defendant she

was under arrest for larceny.                 Defendant turned, crossed her
                                       -4-
arms, and called out to her husband.                    Leight testified that

Defendant said, “No, no,” and backed away from him.                 Leight put

Defendant’s arms behind her back, handcuffed her, and arrested

her.

       Defendant    was      charged       with     misdemeanor   larceny     and

misdemeanor resisting a public officer.                  At the close of the

State’s evidence and at the close of all the evidence, Defendant

moved to dismiss the charge of resisting a public officer.                    The

trial court denied both motions.                  The jury acquitted Defendant

of larceny, but found her guilty of resisting a public officer.

The trial court sentenced Defendant to 30 days in the custody of

the Alamance County Sheriff, suspended for 18 months upon her

completion of 18 months of supervised probation, payment of a

fine, completion of community service hours, and adherence to a

ban on contacting Leight or visiting Belk during her probation.

This appealed followed.

                                    Discussion

       Defendant argues that the trial court erred in failing to

dismiss the charge of resisting a public officer because (1) the

State offered no evidence to show that Leight was attempting to

make   a   lawful   arrest    and    (2)    Leight’s     investigation   of   the

alleged larceny had been completed.               We vacate.
                                -5-
         The law governing a trial court’s ruling on
         a motion to dismiss is well established.
         The trial court must determine only whether
         there   is  substantial   evidence  of   each
         essential element of the offense charged and
         of the defendant being the perpetrator of
         the offense.   Evidence is substantial if it
         is relevant and adequate to convince a
         reasonable mind to accept a conclusion.    In
         considering a motion to dismiss, the trial
         court must analyze the evidence in the light
         most favorable to the State and give the
         State   the  benefit   of   every  reasonable
         inference from the evidence.       The trial
         court must also resolve any contradictions
         in the evidence in the State’s favor.     The
         trial court does not weigh the evidence,
         consider evidence unfavorable to the State,
         or determine any witness[] credibility.

State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001)

(citations and internal quotation marks omitted), cert. denied,

535 U.S. 1114, 153 L. Ed. 2d 162 (2002).

    The five elements of     the offense   of resisting a public

officer are:

         1)    that the victim was a public officer;

         2)     that   the  defendant knew or          had
         reasonable grounds to believe that            the
         victim was a public officer;

         3)    that   the victim was discharging or
         attempting   to discharge a duty of his
         office;

         4) that the defendant resisted, delayed, or
         obstructed the victim in discharging or
         attempting to discharge a duty of his
         office; and
                                            -6-


              5)   that the defendant acted willfully and
              unlawfully,   that   is   intentionally and
              without justification or excuse.

State v. Dammons, 159 N.C. App. 284, 294, 583 S.E.2d 606, 612,

disc. review denied, 357 N.C. 579, 589 S.E.2d 133 (2003), cert.

denied, 541 U.S. 951, 158 L. Ed. 2d 382 (2004).

       On appeal, Defendant bases her arguments upon an assertion

that    the   State   failed     to    establish         element     3,   to   wit,   that

Leight was discharging or attempting to discharge a duty of his

office when Defendant resisted him.                      Defendant first contends

that Leight’s attempt to arrest Defendant was illegal such that

she was justified in resisting.                   This contention is based upon

Defendant’s assertion that Leight had not observed her alleged

offense, misdemeanor larceny, and thus was authorized to arrest

her without a warrant only under limited conditions not present

here.     Unfortunately, Defendant did not make this argument in

the trial court.           Rather, Defendant argued for dismissal                        by

asserting     that    Defendant       did   not     actually       resist,     delay,   or

obstruct Leight in the course of his performance of his duties.

Accordingly,     Defendant       has    not       preserved     this      argument      for

appellate     review.      See    N.C.R.          App.    P.   10(a)(1).        However,

Defendant asks this Court to invoke Rule 2 of our Rules of

Appellate      Procedure    in    order       to     reach     the    merits     of     her
                                        -7-
argument, and we elect to exercise our discretion to do so.                            See

N.C.R. App. P. 2 (“To prevent manifest injustice to a party . .

. either court of the appellate division may . . . suspend or

vary the requirements or provisions of any of these rules in a

case pending before it upon application of a party or upon its

own initiative, and may order proceedings in accordance with its

directions.”).

      Our General Statutes provide that a law enforcement officer

may   arrest   a   suspect    without       a       warrant    if    the   officer     has

probable   cause     to      believe        the      suspect        has    committed    a

misdemeanor offense in the officer’s presence.                        N.C. Gen. Stat.

§ 15A-401(b)(1) (2013).         In contrast, for misdemeanor offenses

not   personally     witnessed         by       a     law     enforcement      officer,

warrantless arrests are permitted only where the officer has

probable cause to think that the suspect

           1.   Will    not   be    apprehended                      unless
           immediately arrested, or

           2. May cause physical injury to h[er]self or
           others,   or   damage   to  property  unless
           immediately arrested[.]

N.C. Gen. Stat. § 15A-401(b)(2).1



1
  The statute also permits the warrantless arrest of suspects for
offenses not committed in the officer’s presence in the case of
a list of specified misdemeanors, none of which is applicable
                                        -8-
       “The essential elements of larceny are that the defendant:

(1)    took    the   property   of    another;    (2)   carried    it    away;    (3)

without the owner’s consent; and (4) with the intent to deprive

the owner of his property permanently.”                   State v. Perry, 305

N.C.    225,    233,    287   S.E.2d    810,     815    (1982)    (citations      and

internal quotation marks omitted), overruled on other grounds by

State v. Mumford, 364 N.C. 394, 699 S.E.2d 911 (2010).                     Here, it

is     undisputed      that   Defendant   did     not    take    or     carry    away

Shamberger’s purse in Leight’s presence.                 Leight was not called

to Belk until after Defendant had taken the purse and left Belk.

At that point, the alleged offense of misdemeanor larceny had

been completed.          Accordingly, we must consider whether either

condition set forth in section 15A-401(b)(2) was satisfied here.

       No evidence       offered at trial could support a belief by

Leight that Defendant was likely to “cause physical injury to

h[er]self or others, or damage to property unless immediately

arrested[.]”         N.C. Gen. Stat. § 15A-401(b)(2).              Defendant had

already returned the purse to Shamberger undamaged and with all

of its contents intact.              Nothing suggested that Defendant was




here.    Id.
                                   -9-
likely to become violent so as to injure herself, others, or any

property.

    Likewise, the evidence produced at trial reveals no basis

which   would   provide   Leight   probable   cause   to    believe   that

Defendant would not be apprehended unless immediately arrested.

See id.     Leight testified that Defendant called the cellphone in

Shamberger’s purse, explained what had happened, and promised to

return to Belk with the purse.           Defendant did then return to

Belk, driven by her husband, where she restored the purse with

all its contents intact to Shamberger, and responded to all of

Leight’s questions:

            Q[.]     And did you make          contact     with
            [Defendant] when she arrived?

            A[.]   I did. She gave the change purse to
            Ms. Shamberger.    Said, “Here I found your
            purse,” and gave it to her.         And Ms.
            Shamberger replied to her.    I don’t recall
            exactly what she said.    She said something
            to [Defendant].     At that time, when she
            handed it to her and stated, “Here, I found
            this,” I told [Defendant] that I observed
            her on camera inside the store and observed
            her taking the, that she walked out of the
            store. And she first saying she found it in
            the parking lot.    After I told her that we
            had video surveillance, she then claimed
            that it was her wallet or she thought it was
            her wallet. And she said, “Well, I grabbed
            it by accident.       I thought it was my
            wallet,” after telling me that she found it
            in the parking lot.
                                    -10-
           Q[.]   In response to her changing her story
           to saying that she grabbed it by accident,
           what did you do?

           A[.] Umm, again I explained to her that the
           time that I initially got the call that I
           responded was approximately 6:10.   This was
           a little bit after 8 o’clock. The time the
           incident occurred was about 4:40.         So
           between 4:40 and 8 o’clock, you’re talking
           three and a half hours that this had
           happened.    So she returned approximately
           three and a half hours after the purse had
           been taken.    So I basically told her, you
           know, I have you on video.       I know you
           didn’t find it in the parking lot. And she,
           that’s when she replied, “Well, I took it by
           mistake. I thought it was mine.”

           Q[.]    And what happened after that?

           A[.] At that time, I told her she was under
           arrest for larceny.

    Even    by    Leight’s   own   account,   nothing   about   Defendant’s

actions    or    the   circumstances    indicated   a    likelihood   that

Defendant would not be apprehended unless immediately arrested.

The State emphasizes that Defendant delayed in returning the

purse to Belk and gave inconsistent explanations about where she

found the purse.2       At most, these facts might provide probable



2
  Defendant testified that, after leaving Belk, she and her
husband drove to another mall so that Defendant could have a
manicure and pedicure for her upcoming trip. After the manicure
and pedicure, Defendant and her husband ate dinner at the mall
before returning to their home.   Defendant did not realize she
had picked up Shamberger’s purse until she was unpacking her
                                             -11-
cause for Leight to believe that Defendant had indeed committed

larceny, but neither is relevant to assessing whether Defendant

would likely evade apprehension unless immediately arrested.

       Circumstances       that         do        appear        relevant      include       that

Defendant voluntarily returned to Belk within ten minutes of

speaking to Leight on Shamberger’s cellphone, was accompanied by

her husband, returned the purse, and cooperated with Leight.

Prior    to     Leight’s   attempt           to    arrest        Defendant,      she    showed

absolutely no sign that she would stop cooperatively answering

Leight’s questions, much less that she would flee or take steps

to    avoid    later    apprehension.               It    seems    more       likely   that    a

suspect who did plan to evade apprehension might take simple

steps    such    as    disposing    of       the       stolen     item   and    refusing      to

return to the scene of the alleged crime when requested to do

so.     Such a suspect might not have her husband drive her to the

scene in their car to return the allegedly stolen item, thus

providing officers an opportunity to obtain her license plate

number.       Such a suspect might tell her husband to keep driving

once she saw uniformed officers at the scene, rather than to

engage in conversation with one of them, thereby giving the

officer    an    opportunity       to    get       a     good    look    at    her   face    and


purchases at home.
                                          -12-
possibly     ask    for    her      identification.               Surprisingly,      the

transcript    does     not    indicate         that      Leight    ever     asked    for

Defendant’s name or address or to see her driver’s license prior

to placing her under arrest.               Had Leight done so, he might have

been able to take down sufficient information to feel confident

that he could locate Defendant later as needed.                            Simply put,

Leight    never    evinced    any       belief    that    Defendant       would   likely

avoid later apprehension if he did not immediately arrest her,

and   absolutely     nothing       in    the     record    would       support    such   a

belief.      Thus,    Leight’s          attempted     arrest      of     Defendant   was

unlawful     and     she     was    lawfully          entitled      to     resist    it.

Accordingly, the judgment entered upon Defendant’s conviction

for resisting a public officer is

      VACATED.

      Judges BRYANT and DILLON concur.

      Report per Rule 30(e).
