              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-350

                               Filed: 6 February 2018

Duplin County, Nos. 15 CRS 52575-77

STATE OF NORTH CAROLINA

             v.

DARYL LEE CROMARTIE, Defendant.


      Appeal by Defendant from judgment entered 7 September 2016 by Judge

Phyllis M. Gorham in Duplin County Superior Court. Heard in the Court of Appeals

17 October 2017.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General
      Christina S. Hayes, for the State.

      Patterson Harkavy LLP, by Narendra K. Ghosh, for Defendant.


      MURPHY, Judge.


      Daryl Lee Cromartie (“Defendant”) appeals from judgment entered upon his

convictions for attaining habitual felon status, common law robbery, misdemeanor

larceny, fleeing to elude arrest, resisting a public officer, and simple assault.

Defendant argues the trial court erred by: (1) admitting Deputy Snyder’s prejudicial

and inadmissible hearsay into evidence; (2) failing to arrest judgment for the larceny

and assault convictions; and (3) failing to dismiss the charge of resisting an officer

where no evidence satisfied the allegation in the indictment.       For the reasons
                                STATE V. CROMARTIE

                                  Opinion of the Court



discussed, we hold the trial court did not commit prejudicial error in allowing Deputy

Snyder’s testimony into evidence, and did not err by denying Defendant’s motion to

dismiss the resisting a public officer charge. The trial court, however, did err by

failing to arrest judgment on Defendant’s convictions for non-felonious larceny and

simple assault.

                                  I. Background

      Defendant was arrested on 14 December 2015 and indicted by a Duplin County

Grand Jury on 21 March 2016 on charges of misdemeanor fleeing to elude arrest with

a motor vehicle, resisting, obstructing or delaying a public officer, common law

robbery, felony larceny, and simple assault.             A Duplin County Grand Jury

additionally indicted Defendant for attaining habitual felon status on 31 May 2016.

      Defendant’s trial began on 6 September 2016. The evidence at trial tended to

show that after assaulting his girlfriend on 14 December 2015, Defendant stopped a

man on a moped, pulled the man off the moped and assaulted the man, and then

drove away on the man’s moped. Responding law enforcement officers quickly located

Defendant, who then fled from the officers on the moped.          During the pursuit,

Defendant drove the moped behind a Dollar General store and out of the view of a

pursuing sheriff’s deputy. When the Deputy regained sight of Defendant, Defendant

was standing approximately 15 to 20 feet from the moped, which was overturned and

lying in a ditch. Defendant was arrested.



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                                  Opinion of the Court



      On 7 September 2016, the jury returned verdicts finding Defendant guilty of

misdemeanor fleeing to elude arrest, resisting, obstructing, or delaying a public

officer, common law robbery, non-felonious larceny, and simple assault. Following

the jury verdicts, Defendant pleaded guilty to attaining habitual felon status. The

trial court consolidated all of the offenses and entered a single judgment sentencing

Defendant in the mitigated range to a term of 58 to 82 months imprisonment.

Defendant gave notice of appeal in open court.

                                    II. Analysis

                                     A. Hearsay

      On appeal, Defendant first contends the trial court erred in admitting

testimony from Deputy Sheriff Steven Snyder over his objections. Defendant claims

the challenged testimony was inadmissible hearsay and that its admission was

prejudicial to his case. We disagree that Defendant was prejudiced by the challenged

testimony.

      “When preserved by an objection, a trial court’s decision with regard to the

admission of evidence alleged to be hearsay is reviewed de novo.” State v. Johnson,

209 N.C. App. 682, 692, 706 S.E.2d 790, 797 (2011). But, even if the trial court admits

hearsay in error, “[t]he erroneous admission of hearsay testimony is not always so

prejudicial as to require a new trial, and the burden is on the defendant to show

prejudice.”   State v. Allen, 127 N.C. App. 182, 186, 488 S.E.2d 294, 297 (1997)



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(citations omitted); see N.C.G.S. § 15A–1443(a) (2015).        “Evidentiary errors are

harmless unless a defendant proves that absent the error a different result would

have been reached at trial.” State v. Ferguson, 145 N.C. App. 302, 307, 549 S.E.2d

889, 893 (2001) (citation omitted).

      Under the North Carolina Rules of Evidence, “[h]earsay is not admissible

except as provided by statute or by [the] rules.” N.C.G.S. § 8C-1, Rule 802 (2015).

“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

N.C.G.S. § 8C-1, Rule 801(c). “When evidence of such statements by one other than

the witness testifying is offered for a proper purpose other than to prove the truth of

the matter asserted, it is not hearsay and is admissible.” State v. Coffey, 326 N.C.

268, 282, 389 S.E.2d 48, 56 (1990).

      The testimony at issue in this case concerned Defendant’s alleged assault of

his girlfriend prior to the events giving rise to the charges in this case. Deputy Snyder

testified that he was on a dayshift patrol on 14 December 2015 when a female at a

gas station flagged him down. Deputy Snyder recalled that the woman ran to his car,

crying hysterically, and told him that she had just been assaulted.          Defendant

objected to the testimony, claiming it was hearsay.         The trial court, however,

overruled Defendant’s objection and instructed the State to “[l]ay a foundation for the

purpose of the call in reference to the stop.” Deputy Snyder then continued to explain



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                                   Opinion of the Court



the situation. When the State inquired whether the woman identified her assaulter

to Deputy Snyder, Defendant objected on hearsay grounds.          Over Defendant’s

objection, Deputy Snyder was allowed to testify that the woman told him the name of

her assaulter. The name she gave Deputy Snyder was Defendant’s name. Deputy

Snyder also testified that he asked the woman where Defendant was heading when

Defendant left the gas station. Overruling another hearsay objection by Defendant,

the trial court allowed Deputy Snyder to testify that the woman told him “[Defendant]

flagged down a white pickup and was heading North on 117.” When local units

arrived at the gas station, Deputy Snyder left heading north on the lookout for

Defendant.

      Defendant now admits that it initially appeared the testimony was elicited to

explain Deputy Snyder’s subsequent conduct, which Defendant recognizes to be a

valid purpose. Indeed, “[w]e have held statements of one person to another to explain

subsequent actions taken by the person to whom the statement was made are

admissible as nonhearsay evidence.” State v. Golphin, 352 N.C. 364, 440, 533 S.E.2d

168, 219 (2000) (quotation omitted).        Yet, Defendant contends the trial court

ultimately admitted the evidence for substantive purposes when it instructed the jury

that the testimony could be considered evidence of motive and identity. The trial

court’s instructions were as follows:

             Evidence has been received tending to show that
             [D]efendant assaulted his girlfriend at the time that the


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                                  Opinion of the Court



             crime was committed in this case. This evidence was
             received solely for the purpose of showing the identity of
             the person who committed the crime charged in this case,
             if it was committed, and that [D]efendant had a motive for
             commission of the crime charged in this case. If you believe
             this evidence, you may consider it but only for the limited
             purpose for which it was received. You may not consider it
             for any other purpose.

      Upon review of the jury instructions, it appears the trial court was attempting

to limit the consideration of the evidence in accordance with N.C.G.S. § 8C-1, Rule

404(b), which states:

             Evidence of other crimes, wrongs, or acts is not admissible
             to prove the character of a person in order to show that he
             acted in conformity therewith. It may, however, be
             admissible for other purposes, such as proof of motive,
             opportunity, intent, preparation, plan, knowledge,
             identity, or absence of mistake, entrapment or accident.

However, in doing so, the trial court changed the nature of the evidence from

nonhearsay, when the testimony is considered solely to explain Deputy Snyder’s

subsequent conduct, to hearsay, when the testimony is considered as proof of identity

and motive. That is because in order for the jury to consider the challenged testimony

as evidence of identity and motive, the jury would have to consider the testimony for

the truth of the matter asserted, even though the testimony did not directly concern

the crimes charged in this case. Thus, while the challenged testimony was admissible

to explain Deputy Snyder’s subsequent conduct, it was error for the trial court to

admit the testimony as evidence of Defendant’s identity and motive. When the

testimony is considered for the truth of the matter asserted, it is hearsay.

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                                  Opinion of the Court



      Nevertheless, the trial court’s admission of the challenged testimony for

purposes of proving identity and motive was harmless error. To show prejudice,

Defendant must show that “there was a reasonable possibility that a different result

would have been reached at trial if the error had not been committed.” State v.

Hickey, 317 N.C. 457, 473, 346 S.E.2d 646, 657 (1986) (citations omitted).

      Defendant contends the challenged testimony was “highly prejudicial” in this

case because the crux of his defense was that the State failed to provide sufficient

evidence of his intent in taking the moped. Defendant asserts that, absent the

testimony, there was no evidence of his motivation for taking the moped or that he

intended to keep the moped. Defendant further asserts that the jury was much less

likely to doubt that he intended to permanently deprive the victim of the moped after

learning that he assaulted his girlfriend and was running away from her.          We

disagree.

      Absent the challenged testimony, there was ample evidence for the jury to

convict Defendant of the charged offenses. Specifically, evidence was presented that

the victim, the owner of the moped, was stopped by a man standing in the road

blocking his way. The man approached the victim and grabbed hold of the front of

the moped. The victim testified that the man began to ask him questions about the

moped and stated, “I like that scooter[ ]” and “I need to get me one.” When the victim

attempted to back up to go around the man, the man, who still had hold of the front



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                                 STATE V. CROMARTIE

                                   Opinion of the Court



of the moped, reached over the handlebars, grabbed the victim by the coat collar, and

pulled the victim off of the moped. The moped fell to the ground and the man beat

the victim and slung him around on the road. A struggle ensued. Eventually, the

man was able to break free from the victim and took off on the moped. When asked

to describe what the man looked like, the victim identified Defendant, pointing to him

in the courtroom and stating, “[t]hat’s him right there[.]” Furthermore, testimony

was given that deputies spotted Defendant on the moped shortly thereafter and

pursued Defendant until he crashed the moped in a ditch.

      Given the ample evidence in this case, there is not a reasonable possibility of

a different outcome even if the challenged testimony had not been admitted at trial.

Thus, the trial court did not commit prejudicial error when it admitted the testimony

as evidence of Defendant’s identity and motive.

                                B. Double Jeopardy

      Defendant also argues the trial court erred by failing to arrest judgment on his

convictions for non-felonious larceny and simple assault. Defendant now contends

this error amounts to a violation of his right to be free from double jeopardy.

      “The standard of review for alleged violations of constitutional rights is de

novo.” State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009) (citation

omitted). Yet, “a constitutional question which is not raised and passed upon in the

trial court will not ordinarily be considered on appeal.” State v. Hunter, 305 N.C. 106,



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                                     Opinion of the Court



112, 286 S.E.2d 535, 539 (1982) (citations omitted). “In order to preserve a question

for appellate review, a party must have presented the trial court with a timely

request, objection or motion, stating the specific grounds for the ruling sought if the

specific grounds are not apparent.” State v. Eason, 328 N.C. 409, 420, 402 S.E.2d

809, 814 (1991); see also N.C. R. App. P. 10(a)(1) (2017). Particularly relevant to this

case, this Court has stated that,

             [t]he constitutional right not to be placed in jeopardy twice
             for the same offense, like other constitutional rights, may
             be waived. To avoid waiving this right, a defendant must
             properly raise the issue of double jeopardy before the trial
             court. Failure to raise this issue at the trial court level
             precludes reliance on the defense on appeal. Simply put,
             double jeopardy protection may not be raised on appeal
             unless the defense and the facts underlying it are brought
             first to the attention of the trial court.

State v. White, 134 N.C. App. 338, 342, 517 S.E.2d 664, 667 (1999) (quotation marks

and citations omitted).

      In this case, Defendant moved to dismiss all charges at the close of the State’s

evidence, only specifically arguing against the resisting a public officer charge.

Defendant then renewed “the same motions to dismiss for the same reasons[ ]” at the

close of all of the evidence. Defendant also later moved to set aside the verdicts on

the basis that they were “against the greater weight of the evidence.” Defendant,

however, never argued a double jeopardy violation to the trial court. As the double

jeopardy issue was never raised to the trial court, Defendant has not preserved the

issue for review on appeal.

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                                  Opinion of the Court



      Nevertheless, recognizing his possible error below, Defendant asserts on

appeal that, if the issue was not preserved for appeal, we should invoke Rule 2 to

reach the merits of the issue or we should determine whether he received ineffective

assistance of counsel. To prevent manifest injustice to Defendant in this case, we

choose to invoke Rule 2 and address the merits of Defendant’s argument. See N.C.

R. App. P. Rule 2 (“To prevent manifest injustice to a party, . . . either court of the

appellate division may, except as otherwise expressly provided by these rules,

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.”).

      “Under the Double Jeopardy Clause, when one offense is a lesser-included

offense of another, the two offenses are considered the same criminal offense.” State

v. Schalow, __ N.C. App. __, __, 795 S.E.2d 567, 579 (2016) (citations omitted), disc.

review allowed, __ N.C. __, 796 S.E.2d 791 (2017). This Court has held that larceny

is a lesser included offense of common law robbery. State v. White, 322 N.C. 506, 517

n.1, 369 S.E.2d 813, 819 n.1 (1988) (reaffirming the Court’s prior holding that larceny

is a lesser included offense of common law robbery) (citing State v. Young, 305 N.C.

391, 393, 289 S.E.2d 374, 376 (1982)). Likewise, assault is a lesser included offense

of common law robbery. See State v. White, 142 N.C. App. 201, 204, 542 S.E.2d 265,

268 (2001) (“Our appellate courts have stated several times that the crime of common



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                                  Opinion of the Court



law robbery includes an assault on the person.”). Upon review, it is clear the trial

court erred in sentencing Defendant for the non-felonious larceny and simple assault

convictions in this case because those offenses arose out of the same facts as the

common law robbery. As a result, the entry of judgment on the common law robbery

conviction and the lesser included non-felonious larceny and simple assault

convictions violated Defendant’s right to be free from double jeopardy.

      The State does not contest that the convictions do not violate double jeopardy,

and in fact concedes that larceny and assault are lesser included offenses of common

law robbery. Instead, the State, assuming there was a double jeopardy violation,

argues Defendant was not prejudiced by the violation because all convictions were

consolidated for judgment and Defendant received a single sentence.          In fact,

Defendant received the lowest possible sentence that he could have received in the

mitigated range. Therefore, although typically “[w]hen the trial court consolidates

multiple convictions into a single judgment but one of the convictions was entered in

error, the proper remedy is to remand for resentencing,” State v. Hardy, 242 N.C.

App. 146, 160, 774 S.E.2d 410, 420 (2015), we do not remand for resentencing where

Defendant has already received the lowest possible sentence because remanding

when one of the convictions of a consolidated sentence is in error is based on the

premise that multiple offense probably influenced the defendant’s sentence. See State

v. Wortham, 318 N.C. 669, 674, 351 S.E.2d 294, 297 (1987) (remanding for



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                                   Opinion of the Court



resentencing when one or more, but not all, of the convictions consolidated for

judgment have been vacated because conviction for two or more offenses influences

adversely to a defendant the trial court’s judgment on the length of the sentence to

be imposed when these offenses are consolidated for judgment). We would only

remand after arresting judgment if “we were unable to determine what weight, if any,

the trial court gave to each of the separate convictions. . . .” See State v. Moore, 327

N.C. 378, 383, 395 S.E.2d 124, 127-28 (1990). Here, Defendant received the lowest

possible sentence and we need not remand for resentencing.

      Nevertheless, the State’s argument ignores the collateral consequences of the

judgment. Our Supreme Court has stated, “[t]hat the offenses were consolidated for

judgment does not put to rest double jeopardy issues, because the separate

convictions may still give rise to adverse collateral consequences.” State v. Etheridge,

319 N.C. 34, 50, 352 S.E.2d 673, 683 (1987) (citations omitted). The proper recourse

in this case is for us to arrest judgment on Defendant’s convictions for non-felonious

larceny and simple assault so as to avoid any collateral consequences. See State v.

Jaynes, 342 N.C. 249, 276, 464 S.E.2d 448, 465 (1995) (arresting judgment on two

lesser included larceny convictions), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080

(1996). We arrest judgment on the larceny and assault convictions.

                               C. Motion to Dismiss




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                                   Opinion of the Court



      In his last argument on appeal, Defendant argues the trial court erred in

denying his motion to dismiss the resisting a public officer charge because of a fatal

variance between the indictment and the evidence. We disagree. In the light most

favorable to the State, the direct and circumstantial evidence demonstrates that

Defendant continued to elude Deputy Boyette on foot after the moped overturned.

      “This Court reviews the trial court’s denial of a motion to dismiss de novo.”

State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). “In ruling on a motion

to dismiss, the evidence must be considered by the court in the light most favorable

to the State, and the State is entitled to every reasonable inference to be drawn from

the evidence.” State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387-88 (1984)

(citation omitted). “The trial court does not weigh the evidence, consider evidence

unfavorable to the State, or determine any witnesses’ credibility . . . . Ultimately, the

court must decide whether a reasonable inference of defendant’s guilt may be drawn

from the circumstances.” State v. Blizzard, 169 N.C. App. 285, 289-90, 610 S.E.2d

245, 249 (2005) (quotation omitted).

      “The elements of resisting an officer are that a person ‘willfully and unlawfully

resisted, delayed or obstructed a public officer in discharging or attempting to

discharge a duty of his office.” State v. Shearin, 170 N.C. App. 222, 223, 612 S.E2d

371, 380 (2005) (quoting N.C.G.S. § 14-223). We have “previously recognized that an

indictment for the charge of resisting an officer must: 1) identify the officer by name,



                                           13
                                STATE V. CROMARTIE

                                  Opinion of the Court



2) indicate the official duty being discharged, and 3) indicate generally how [the]

defendant resisted the officer.” State v. Henry, 237 N.C. App. 311, 322, 765 S.E.2d

94, 102-103 (2014), disc. review denied, __ N.C. __, 775 S.E.2d 852 (2015) (quotation

omitted).

      Here, the indictment for resisting an officer specified that Defendant resisted

“by running away from Cody Boyette on foot.” The evidence at trial tended to show

that Deputy Boyette was in hot pursuit of Defendant when Defendant went behind

the Dollar General. At some point between when Defendant went behind the store

and when Deputy Boyette arrived behind the store, Defendant traversed

approximately 15 to 20 feet from the stolen and overturned moped. It is a reasonable

inference that Defendant covered this distance on foot. Therefore, contrary to the

analysis set forth in the dissent, there was sufficient evidence presented to the jury

to find that Defendant ran away from Deputy Boyette on foot, as alleged in the

indictment. The trial court did not err by denying Defendant’s motion to dismiss for

a fatal variance.

                                  III. Conclusion

      For the reasons discussed, we hold the trial court did not commit prejudicial

error in allowing Deputy Snyder’s testimony into evidence, and did not err by denying

Defendant’s motion to dismiss the resisting a public officer charge. The trial court,




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                                 Opinion of the Court



however, did err by failing to arrest judgment on Defendant’s convictions for non-

felonious larceny and simple assault.

      NO ERROR IN PART, ARRESTED IN PART.

      Judge BRYANT concurs.

      Judge ARROWOOD concurs in part and dissents in part.




                                          2
 No. COA17-350 – STATE V. CROMARTIE


       ARROWOOD, Judge, concurring in part, dissenting in part.


       I concur in that portion of the majority opinion that holds that the trial court

did not commit prejudicial error in allowing Deputy Snyder’s testimony into evidence.

I also concur in the finding that the trial court committed error by failing to arrest

judgment on defendant’s convictions for non-felonious larceny and simple assault.

       I dissent from that portion of the majority opinion that finds that the trial court

did not err in denying defendant’s motion to dismiss the charge of resisting a public

officer. I believe that there is a fatal variance between the charge alleged in the

indictment and the State’s evidence at trial, thus, I vote to reverse the conviction for

resisting a public officer.

       “This Court reviews the trial court’s denial of a motion to dismiss de novo.”

State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). Furthermore,

              [i]t is well established that “[a] defendant must be
              convicted, if at all, of the particular offense charged in the
              indictment” and that “[t]he State's proof must conform to
              the specific allegations contained” therein.         State v.
              Pulliam, 78 N.C. App. 129, 132, 336 S.E.2d 649, 651 (1985).
              Thus, “a fatal variance between the allegata and the
              probata” is properly the subject of a motion to dismiss for
              insufficiency of the evidence to sustain a conviction. State
              v. Nunley, 224 N.C. 96, 97, 29 S.E.2d 17, 17 (1944). The
              rationale for this rule is “to insure that the defendant is
              able to prepare his defense against the crime with which
              he is charged, and to protect the defendant from another
              prosecution for the same incident.” State v. Norman, 149
              N.C. App. 588, 594, 562 S.E.2d 453, 457 (2002). However,
              not every variance is fatal, because “[i]n order for a
                                 STATE V. CROMARTIE

                  ARROWOOD, J., concurring in part, dissenting in part.

             variance to warrant reversal, the variance must be
             material. A variance is not material, and is therefore not
             fatal, if it does not involve an essential element of the crime
             charged.” Id. (citation omitted). This Court has previously
             recognized that “an indictment for the charge of resisting
             an officer must: 1) identify the officer by name, 2) indicate
             the official duty being discharged, and 3) indicate generally
             how [the] defendant resisted the officer.” State v. Swift,
             105 N.C. App. 550, 553, 414 S.E.2d 65, 67 (1992).

State v. Henry, 237 N.C. App. 311, 322, 765 S.E.2d 94, 102-103 (2014), disc. review

denied, __ N.C. __, 775 S.E.2d 852 (2015).

      Defendant moved to dismiss all charges at the conclusion of the State’s

evidence and specifically argued that the charge of resisting a public officer should be

dismissed because the evidence of how defendant resisted the officer was “completely

different from the indictment[.]” This is the same argument presented on appeal

relating to the third essential element of the offense.

      The indictment in this case alleged that defendant resisted a sheriff’s deputy

“by running away from [the deputy] on foot[]” while the deputy was attempting to

arrest defendant for larceny. A review of the record, however, reveals no evidence

that defendant ran away from the deputy on foot. The sheriff’s deputy named in the

indictment, Cody Boyette, testified that as he was pursuing defendant, defendant

pulled into a Dollar General store parking lot and went behind the business. Deputy

Boyette lost sight of defendant for three or four seconds and when he regained sight

of defendant, “[Deputy Boyette] saw the moped was overturned close to a ditch and

[defendant] was standing approximately 15 to 20 feet away from it.” (Emphasis


                                          -2-
                               STATE V. CROMARTIE

                 ARROWOOD, J., concurring in part, dissenting in part.

added). Deputy Boyette then got out of his vehicle, drew his firearm and pointed it

at defendant, and told defendant to get on the ground several times. After Deputy

Boyette instructed him to get on the ground five or six times, defendant complied.

Deputy Boyette then approached defendant and placed handcuffs on him.

      Both the State and the defense elicited additional testimony from Deputy

Boyette to clarify defendant’s movements after he crashed the moped in the ditch. In

response to the State’s initial questioning, Deputy Boyette reiterated that

“[defendant] was standing 15 to 20 feet away [from the moped], and that’s where he

was at whenever I arrived from the pursuit.” The following exchange took place:

            Q.   So did he leave from the moped and got to that 15 to
                 20 feet and then he stopped; is that correct?

            A.   Whenever I actually got out and drew my firearm, he
                 had come to a complete stop.

            Q.   But before then he had not?

            A.   Yeah. By the time I laid eyes on him, he never moved
                 any further or any less from the time I got there. He
                 was looking for somewhere else to go.

            Q.   So he fled on foot from that up until that 15 to 20 feet
                 before you drew your weapon; is that correct?

            A.   Yes, ma’am.

During cross-examination by the defense, Deputy Boyette again testified about the

end of his pursuit of defendant. The following exchange took place:

            Q.   And when you exited your patrol vehicle, where was -
                 - where was [defendant]?


                                        -3-
                      STATE V. CROMARTIE

       ARROWOOD, J., concurring in part, dissenting in part.

A.     If the -- let’s see, he was -- from the point of the moped,
       he was probably about 10 or 15 feet east of the moped.

Q.     Okay. And was he walking?

A.     He was standing still at that point in time.

Q.     Okay. And then what happened?

A.     Like I said, I got out of my vehicle, I drew my firearm
       on Mr. Cromartie, and was commanding him to get
       down on the ground.

Q.     So after you got out, he didn’t move?

A.     He was standing still, but he was looking around as if
       he was trying to find somewhere else to run to. It was
       a big, open spot in the back of Dollar General. It was
       a parking lot and a ditch.

Q.     So once you got out of the vehicle, he didn’t move?

A.     Well he was standing still and he was looking for
       somewhere to go. Reason I drew any firearm, he had
       just robbed somebody and stole something, based off
       the traffic I heard. And there was also people around
       from where they heard us coming through town, so for
       my own safety and the safety of others, that’s why I
       had my firearm out.

Q.     Did he run away from you?

A.     No, sir.

....

[Q.] You also supervised or gave the magistrate
     information about the resisting a public officer, and it
     said that he did resist, delay, and obstruct Boyette, a
     public officer by running away from deputy on foot.



                               -4-
                                 STATE V. CROMARTIE

                  ARROWOOD, J., concurring in part, dissenting in part.

             A.   He had got off the moped and started to run and
                  stopped once I actually approached him.

             Q.   Okay. So once you ordered him to stop, he stopped?

             A.   Yes.

During redirect-examination by the State, Deputy Boyette added that “[defendant]

had already traveled away from the moped and he was standing in the area, but he

was moving. He wasn’t proceeding to any other location, but he was looking around

trying to find somewhere else to go.” In response to the defense’s question on recross-

examination as to how defendant was standing in one area and moving, Deputy

Boyette explained that “[defendant] was standing still but moving his body.”

      I believe it is clear from the evidence that defendant did not run away from

Deputy Boyette once Boyette regained sight of defendant behind the Dollar General.

The evidence is that defendant was standing still approximately 15 feet from the

moped. In response to defendant’s argument that this creates a fatal variance with

the indictment, which states defendant “[ran] away from Cody Boyette on foot[,]” the

State does not assert there is any direct evidence of defendant running from Deputy

Boyette on foot. Instead, the State argues that viewing the evidence in the light most

reasonable to the State, the evidence that defendant was approximately 15 feet away

from the moped supports an inference that defendant ran from Deputy Boyette after

crashing the moped in the ditch. Given the testimony from Deputy Boyette, the

State’s only witness on this charge, I do not think such an inference may be

reasonably inferred.

                                         -5-
                                 STATE V. CROMARTIE

                  ARROWOOD, J., concurring in part, dissenting in part.

      Because an indictment from resisting an officer must “indicate generally how

[the] defendant resisted the officer[,]” Henry, 237 N.C. App. at 322, 765 S.E.2d at 103,

I would find that there is a material variance between the State’s proof and the

indictment. Therefore, I vote to reverse the conviction for resisting a public officer by

running away from him on foot.




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