                                   NO. COA13-846
                       NORTH CAROLINA COURT OF APPEALS
                                Filed:    20 May 2014
STATE OF NORTH CAROLINA

                                              Durham County
       v.
                                              No. 12 CRS 56936

SHARKEEM JAMMARCUS FOUSHEE


       Appeal by the State from order entered 19 February 2013 by

Judge R. Allen Baddour in Durham County Superior Court.                     Heard

in the Court of Appeals 9 December 2013.

       Attorney General Roy Cooper, by Assistant Attorney General
       Teresa M. Postell, for the State.

       Appellate Defender Staples Hughes, by Assistant Appellate
       Defender Kathleen M. Joyce, for Defendant.

       ERVIN, Judge.

       The    State    has     sought     appellate   review    of     an   order

dismissing two counts of obtaining property by false pretenses

that    had   been     lodged    against     Defendant    Sharkeem     Jammarcus

Foushee and precluding the State from calling certain witnesses

to testify at the trial of a separate felonious larceny charge

that   had    been    lodged    against    Defendant,    with   both   of   these

decisions resting on the trial court’s determination that the

State had violated the provisions of N.C. Gen. Stat. § 15A-903.

On appeal, the State argues that the trial court erroneously

dismissed the obtaining property by false pretenses charges on
                                       -2-
the   grounds   that    the   State    had    not,   in   fact,   violated      the

applicable discovery statutes.               After careful consideration of

the State’s challenge to the trial court’s order in light of the

record   and    the    applicable     law,    we   conclude   that   the    trial

court’s order should be reversed and that this case should be

remanded   to    the    Durham   County       Superior    Court   for   further

proceedings not inconsistent with this opinion.

                           I. Factual Background

      On 17 July 2012, a warrant for arrest charging Defendant

with one count of felonious larceny and two counts of obtaining

property   by   false    pretenses     was     issued.     According       to   the

allegations contained in the warrant, Defendant took twenty-six

rings and a pair of earrings with a total value of $17,655

belonging to Alfreda Andrews and pawned four of the rings at

Friendly Jewelry and Pawn Shop based upon a representation that

he owned the property in question.                 On 17 September 2012, the

Durham County grand jury returned a bill of indictment charging

Defendant with one count of felonious larceny and two counts of

obtaining property by false pretenses based on the same factual

allegations set out in the earlier warrant for arrest.

      On 24 September 2012, Defendant filed a request for formal

arraignment, a motion to preserve evidence, and a request for

voluntary discovery.          On 26 September 2012, Defendant filed a

motion for discovery.         On 3 October 2012 and 13 February 2013,
                                          -3-
respectively,        the   State      responded       to    Defendant’s        discovery

requests.

       On 13 February 2013, Defendant filed two motions in limine.

In the first motion, Defendant requested that the trial court

(1) order the State to certify that it had complied with the

provisions of N.C. Gen. Stat. § 15A-903; (2) prohibit the State

from     introducing       evidence     that     had       not   been       provided     to

Defendant; and (3) order the State to comply with N.C. Gen.

Stat.    §§    15A-903(a)(1)(a)         and     15A-903(a)(1)(c)         by    providing

Defendant with a copy of any new statements made by any witness

before    that     witness   was   called       to    testify.         In     the    second

motion, Defendant requested that the trial court prohibit the

State     from     introducing     or    referring         to    any    extra-judicial

statements made by any person who was not going to testify at

trial.     On 13 February 2013, the State provided Defendant with a

supplemental       discovery     response       and   a    certification        that    all

materials subject to discovery had been provided to Defendant.

       On 18 February 2013, Defendant filed two dismissal motions.

In the first of these motions, Defendant requested that all of

the charges that had been lodged against him be dismissed as the

result of alleged discovery violations stemming from the State’s

failure       to   interview     and     provide       statements       from        certain

witnesses.         More specifically, Defendant alleged in the first

dismissal motion that the State had been made aware that Ms.
                                        -4-
Andrews’ children, Chynna Andrews and Carlston Andrews, had been

on the premises of the family home at the time that the stolen

jewelry had become missing, that Chynna and Carlston Andrews

might possess potentially exculpatory information, and that the

State had wilfully failed to interview them.                   In the second of

these motions, Defendant requested that all of the charges that

had   been   lodged    against    him   be     dismissed     as    the   result    of

certain alleged discovery violations stemming from the State’s

failure to obtain and preserve a surveillance video from the

pawn shop.     More specifically, Defendant alleged in the second

dismissal     motion     that,    despite          having    knowledge      that    a

potentially    exculpatory       surveillance        video   had   been     made   at

Friendly Jewelry and Pawn, the State had negligently failed to

obtain the video prior to its destruction, which had occurred

approximately six months after the date upon which the stolen

jewelry was pawned there.

      A hearing was held with respect to Defendant’s dismissal

motions   before   the   trial     court      on   18   February    2013.     After

hearing arguments concerning the merits of Defendant’s dismissal

motions, the trial court entered an order concluding that the

State had failed to “use reasonable diligence to investigate,

preserve, document, or make [the surveillance video] available”

“or [to obtain] any relevant evidence” from two witnesses who

had been present at the time that one of the alleged offenses
                                        -5-
was committed in violation of the State’s discovery obligations

as prescribed in N.C. Gen. Stat. § 15A-903.                  Based upon this set

of    determinations,     the   trial       court    sanctioned         the        State    by

dismissing    the   two    counts      of     obtaining      property              by    false

pretenses that had been lodged against Defendant and ordering

that the State be precluded from                  calling Chynna or Carlston

Andrews to testify at Defendant’s trial for felonious larceny.

After the trial court denied a motion to continue the trial of

the    felonious    larceny     charge,       the    State     took          a     voluntary

dismissal    with   respect     to    that    charge.        The    State          noted    an

appeal to this Court from the trial court’s order.

       On 7 October 2013, Defendant filed a motion to dismiss the

State’s appeal or, in the alternative, a motion to strike the

record on appeal and portions of the State’s brief on the basis

that the State had committed numerous violations of the North

Carolina Rules of Appellate Procedure.                On 16 October 2013, the

State filed a response to Defendant’s motion and an alternative

petition     seeking     the    issuance       of     a   writ          of       certiorari

authorizing appellate review of the trial court’s order.                                 On 18

October     2013,   Defendant        filed    a     response       to        the        State’s

certiorari petition.

                       II. Substantive Legal Analysis

                        A. Motion to Dismiss Appeal
                                         -6-
       As an initial matter, we must address Defendant’s motion to

dismiss the State’s appeal or, in the alternative, to strike the

record on appeal and portions of the State’s brief.                       Although

Defendant is certainly correct in contending that the State has

violated         numerous   provisions   of    the   North   Carolina     Rules   of

Appellate         Procedure,1   “we   dismiss   appeals      ‘only   in   the   most

egregious instances of nonjurisdictional default[.]’”                     Carolina

Forest Ass’n, Inc. v. White, 198 N.C. App. 1, 6, 678 S.E.2d 725,

729 (2009) (quoting Dogwood Dev. & Mgmt. Co., LLC v. White Oak

Transp. Co., 362 N.C. 191, 200, 657 S.E.2d 361, 366 (2008)); see

also 5 Am.Jur.2d Appellate Review § 804, at 540 (stating that

“it is preferred that an appellate court address the merits of

an appeal whenever possible,” so                that “a party’s failure to

comply with nonjurisdictional rule requirements normally should

not lead to dismissal of the appeal”).                As a result of the fact

that       the   State’s    violations   of    the   North   Carolina     Rules   of


       1
      Among the rules violations upon which Defendant’s motion
was predicated are that (1) Defendant’s dismissal motions and
“other papers” were missing a critical page and were treated as
attachments rather than included in the record on appeal; (2) a
number of other important documents were treated as attachments
rather than included as part of the record on appeal; (3) the
pages in the record on appeal and attachments were not
individually and consecutively numbered; (4) Defendant’s social
security number was not redacted from the documents included in
the record on appeal; (5) the State failed to provide the court
reporter with the appellate docket number or request that the
transcript be electronically filed; and (6) the State’s brief
failed to “define clearly the issues presented to the reviewing
court.”
                                          -7-
Appellate Procedure are nonjurisdictional in nature and, while

troubling, do not rise to the level of a “substantial failure”

to comply with or a “gross violation” of the applicable rule

provisions, we conclude, in the exercise of our discretion, that

we should review the State’s challenge to the validity of the

trial court’s order on the merits rather than dismissing the

State’s appeal.         Dogwood, 362 N.C. at 199, 657 S.E.2d at 366.

Put another way, “we believe [that] the fundamental principle of

Dogwood, to ‘promote public confidence in the administration of

justice    in    our    appellate        courts[,]’     does      not   necessitate

dismissal in the instant case.”                 Carolina Forest, 198 N.C. App.

at 6-7, 678 S.E.2d at 729.                 As a result, although we deny

Defendant’s motion to dismiss the State’s appeal, we strongly

admonish      counsel   for   the       State    to   strictly     adhere   to   all

applicable provisions of the North Carolina Rules of Appellate

Procedure in the future.

      B. Appealability of Orders Imposing Discovery Sanctions

      Secondly, we must determine the extent to which the trial

court’s order is subject to appeal by the State.                    “The right of

the   State     to   appeal   in    a    criminal     case   is    statutory,    and

statutes authorizing an appeal by the State in criminal cases

are strictly construed.”           State v. Elkerson, 304 N.C. 658, 669,

285 S.E.2d 784, 791 (1982).               “The State’s right of appeal is

granted by [N.C. Gen. Stat.] § 15A-1445.”                State v. Watkins, 189
                                            -8-
N.C. App. 784, 785, 659 S.E.2d 58, 60 (2008).                          “N.C. Gen. Stat.

§ 15A–1445(a)(1) allows the State to appeal from a ‘decision or

judgment dismissing criminal charges as to one or more counts.’”

State   v.    Dorman,       __    N.C.    App.    __,   __,    737     S.E.2d    452,    470

(quoting N.C. Gen. Stat. § 15A–1445(a)(1)), disc. review denied,

__ N.C. __, 743 S.E.2d 206 (2013).                  “The General Statutes do not

provide a similar right of appeal with regard to the imposition

of lesser discovery sanctions upon the State.”                          Id. at __, 737

S.E.2d at 470-71.                As a result, the State has the right to

appeal a trial court order dismissing a criminal charge while

lacking      the   authority       to    appeal    an   order        imposing    a   lesser

sanction.

    Although         the    trial       court    granted      Defendant’s       motion   to

dismiss the two counts of obtaining property by false pretenses

that had been lodged against Defendant, it simply precluded the

State from offering the testimony of certain potential witnesses

in the felonious larceny case.                   Moreover, the State voluntarily

dismissed the felonious larceny charge after the trial court

denied its continuance motion.                   Although the State’s notice of

appeal stated that it was appealing from the order “in which the

Court   dismissed          two    counts    of    Obtaining      Property       by    False

Pretenses      and    prohibited           the    State       from     introducing       the

testimony of two witnesses” and although the State clearly has

the right to seek appellate review of that portion of the trial
                                 -9-
court’s   order   challenging   the    dismissal   of    the   obtaining

property by false pretenses charges, see State v. Newman, 186

N.C. App. 382, 385, 651 S.E.2d 584, 587 (2007) (stating that

“under the plain language of N.C. Gen. Stat. § [15A–]1445(a)(1),

the State has a right to appeal the dismissal of one count and

this appeal is not interlocutory”), disc. review denied, 362

N.C. 478, 667 S.E.2d 234 (2008), the fact that “[t]he General

Statutes do not provide a similar right of appeal with regard to

the imposition of lesser discovery sanctions upon the State,”

Dorman, __ N.C. App. at __, 737 S.E.2d at 470-71, necessitates a

determination that the State lacks the right to seek appellate

review of that portion of the trial court’s order precluding the

presentation of any testimony from Chynna and Carlston Andrews

at the trial of the felonious larceny case.             As a result, we

will limit our review of the State’s challenge to the trial

court’s order to a consideration of the lawfulness of the trial

court’s decision to dismiss the two obtaining property by false

pretenses charges.2


     2
      The State candidly concedes that, despite the reference to
the portion of the trial court’s order precluding it from
presenting certain testimony at the trial of the felonious
larceny charge in its notice of appeal, it has no right to
appeal from that portion of the trial court’s order imposing
sanctions   in  the   felonious  larceny  case,   stating  that,
“[a]lthough the trial court’s order regarding the larceny charge
was also incorrect, the State has not attempted to appeal that
order.”
                                         -10-
          C. Validity of the Trial Court’s Dismissal Decision

      In its brief, the State contends that the trial court erred

by dismissing the two counts of obtaining property by false

pretenses     based    upon the State’s failure to           comply with the

provisions of N.C. Gen. Stat. § 15A-903.              More specifically, the

State contends that certain of the trial court’s findings of

fact lacked adequate evidentiary support3 and that the trial

court erroneously concluded as a matter of law that the failure

to   obtain   and     preserve    the    surveillance    video     taken   at   the

establishment       at   which     Ms.     Andrews’      jewelry    was    pawned

constituted     a     violation     of     Defendant’s     rights     under     the

applicable discovery statutes.            The State’s argument has merit.

                           1. Standard of Review

      A determination of the extent, if any, to which the State

failed to comply with its obligation to provide discovery to a

criminal defendant is a decision left to the sound discretion of

the trial court.          State v. Jackson, 340 N.C. 301, 317, 457

S.E.2d 862, 872 (1995).          For that reason, this Court          “review[s]

a [trial court’s] ruling on discovery matters for an abuse of

discretion.”        State v. Pender, __ N.C. App. __, __, 720 S.E.2d


      3
      Although the parties have expended considerable energy
debating the sufficiency of the record support for the trial
court’s findings of fact in their briefs, we need not address
those contentions given our ultimate determination that, in
light of the facts found in the trial court’s order, no
discovery violation occurred.
                                       -11-
836, 841, disc. review denied, 366 N.C. 233, 731 S.E.2d 414

(2012).     “‘The trial court may be reversed for an abuse of

discretion in this regard only upon a showing that its ruling

was so arbitrary that it could not have been the result of a

reasoned decision.’”       State v. Cook, 362 N.C. 285, 295, 661

S.E.2d 874, 880 (2008) (quoting State v. Carson, 320 N.C. 328,

336, 357 S.E.2d 662, 667 (1987)).               “When discretionary rulings

are made under a misapprehension of the law, [however,] this may

constitute an abuse of discretion.”                State v. Tuck, 191 N.C.

App. 768, 771, 664 S.E.2d 27, 29 (2008) (quotations omitted).

              2. Basic Principles of Criminal Discovery

      “It is now well settled in North Carolina that the right to

discovery is a statutory right.”              Tuck, 191 N.C. App. at 771,

664 S.E.2d at 29.      According to N.C. Gen. Stat. § 15A-903, “upon

a motion of the defendant, the court must order . . . [t]he

State to make available to the defendant the complete files of

all   law   enforcement    agencies,          investigatory        agencies,   and

prosecutors’ offices involved in the investigation of the crimes

committed or the prosecution of the defendant.”                N.C. Gen. Stat.

§   15A-903(a)(1).     “The     term    ‘file’    includes     the    defendant’s

statements,   the    codefendants’      statements,        witness    statements,

investigating       officers’     notes,         results      of     tests     and

examinations, or any other matter or evidence obtained during
                                             -12-
the investigation of the offenses alleged to have been committed

by the defendant.”        N.C. Gen. Stat. § 15A-903(a)(1)(a).

      “The State, however, is under a duty to disclose only those

matters in its possession and ‘is not required to conduct an

independent      investigation’         to    locate     evidence      favorable      to    a

defendant.”      State v. Chavis, 141 N.C. App. 553, 561, 540 S.E.2d

404, 411 (2000) (quoting State v. Smith, 337 N.C. 658, 664, 447

S.E.2d   376,     379    (1994)).            “[W]e    note     that    this   Court    has

interpreted the provisions of [N.C. Gen. Stat. §] 15A-903 to

require production by the State of already existing documents.”

Dorman, __ N.C. App. at __, 737 S.E.2d at 471.                            As a result,

“[t]he   statute      imposes      no    duty       on   the   State     to   create       or

continue    to    develop        additional          documentation       regarding         an

investigation.”         Id.

      “If a trial court determines that the State has violated

statutory   discovery          provisions      or    a   discovery      order,   it    may

impose a wide array of sanctions[,] including dismissal of the

charge with or without prejudice.”                   Dorman, __ N.C. App. at __,

737   S.E.2d     at     470.       “However,         prior     to     imposing   any       []

sanctions, the trial court must ‘consider both the materiality

of the subject matter and the totality of the circumstances

surrounding an alleged failure to comply’ with the discovery

requirements.”          State v. Jaaber, 176 N.C. App. 752, 755, 627

S.E.2d 312, 314 (2006) (quoting N.C. Gen. Stat. § 15A-910(b)).
                                         -13-
“If   the    court    imposes     any    sanction,    it   must   make       specific

findings justifying the imposed sanction.”                   N.C. Gen. Stat. §

15A–910(d).      “‘Given that dismissal of charges is an ‘extreme

sanction’     which     should     not     be    routinely     imposed,        orders

dismissing     charges     for    noncompliance       with    discovery        orders

preferably     should      also    contain      findings     which        detail   the

perceived prejudice to the defendant which justifies the extreme

sanction imposed.’”         Dorman, __ N.C. App. at __, 737 S.E.2d at

470 (quoting State v. Allen, __ N.C. App. __, __, 731 S.E.2d

510, 527-28 (internal quotation marks and citations omitted),

disc. review denied, 366 N.C. 415, 737 S.E.2d 377 (2012), cert.

denied, __ U.S. __, 133 S. Ct. 2009, 185 L. Ed. 2d 876 (2013).

            3. Extent to Which Discovery Violation Occurred

      According to the argument that Defendant advanced in the

trial court and that the trial court accepted in its order, the

State     violated   the   discovery-related         provisions      of    N.C.    Gen.

Stat. § 15A-903 by negligently failing to obtain and preserve

the pawn shop surveillance video.4              More specifically, Defendant


      4
      On appeal, Defendant has not attempted to defend the trial
court’s dismissal decision as a proper exercise of the trial
court’s authority to sanction a discovery violation by the
State.   Instead, Defendant argues that the trial court’s order
should be upheld based upon a trial tribunal’s inherent
authority “to do all things that are reasonably necessary for
the proper administration of justice.” Beard v. North Carolina
State Bar, 320 N.C. 126, 129, 357 S.E.2d 694, 696 (1987).     We
will not, however, address Defendant’s “inherent authority”
argument on the merits given the trial court’s failure to adopt
                                         -14-
asserted in his dismissal motion stemming from the loss and

destruction of the surveillance video that his trial counsel

notified the State on 7 August 2012 that there was reason to

believe that Chynna Andrews had been at the pawn shop on the

date   of    the    alleged    offense      and   inquired     if    the   State    had

obtained a surveillance video from the pawn shop on the theory

that this video might “show Chynna Andrews at the pawn shop.”

Approximately two or three weeks before 18 February 2013, the

date   upon    which       Defendant’s      trial   was   scheduled        to   begin,

Defendant’s trial counsel made another inquiry about the extent

to   which    the    State    had   obtained      the   pawn   shop    surveillance

video.      As a result of this inquiry, the prosecutor spoke with

an investigator who “went down to the pawn shop and asked about

a video,” ultimately learning “that after six months it had been

destroyed.”        Based upon this set of facts, Defendant argued that

the State was “aware of evidence that could be exculpatory and

acted with negligence to allow it to be destroyed” contrary to

the discovery-related obligations to which the State was subject

pursuant      to    N.C.    Gen.    Stat.   §     15A-903.      We    do    not    find




such a rationale as the basis for its dismissal order.      As a
result, Defendant will, of course, remain free to seek any
available relief stemming from the loss of the surveillance
video based on any theory other than an alleged violation of the
State’s statutory discovery obligations during the course of the
proceedings on remand.
                                               -15-
Defendant’s argument, which provided the basis for the trial

court’s decision, persuasive.

       A careful review of the record reveals no indication that

the surveillance video at issue here was ever in the State’s

possession.        Given that “[t]he State . . . is under a duty to

disclose      only      those      matters      in    its     possession     and    ‘is    not

required      to     conduct      an     independent         investigation’      to    locate

evidence favorable to a defendant,” Chavis, 141 N.C. App. at

561, 540 S.E.2d at 411 (quoting Smith, 337 N.C. at 664, 447

S.E.2d at 379), the State was under no statutory obligation to

obtain       and     provide       the       pawn     shop    surveillance         video   to

Defendant.         As      a    result,      given    that    the   record      contains   no

support      for     the       trial   court’s       determination      that     the   State

failed to comply with the discovery-related obligations imposed

by    N.C.    Gen.      Stat.     §    15A-903       stemming    from     its   failure     to

obtain, preserve, and disclose the pawn shop surveillance video

to Defendant, the trial court’s decision that the State did not

comply with the mandates of N.C. Gen. Stat. § 15A-903 rested

upon    a    misapprehension           of     the    applicable     law    sufficient      to

render its decision to dismiss the obtaining property by false

pretenses      charges         that    had    been    lodged     against     Defendant     an

abuse of discretion.               Tuck, 191 N.C. App. at 771, 664 S.E.2d at

29.      As a result, given that the trial court’s decision to

dismiss the obtaining property by false pretenses charges rested
                                         -16-
upon a misapprehension of law concerning the extent to which a

discovery violation actually occurred, the trial court’s order

should    be    reversed    and   this   case     should    be    remanded   to    the

Durham     County     Superior     Court    for     further       proceedings      not

inconsistent with this opinion.5

                                  III. Conclusion

     Thus, for the reasons set forth above, we conclude that the

trial court erred by dismissing the two counts of obtaining

property       by   false   pretenses      that    had     been    lodged    against

Defendant based on the State’s alleged failure to comply with

its discovery obligations under N.C. Gen. Stat. § 15A-903.                        As a

result,    the      trial   court’s   order     should     be,    and   hereby     is,

reversed and this case should be, and hereby is, remanded to the

Durham     County     Superior     Court    for     further       proceedings      not

inconsistent with this opinion.

     REVERSED AND REMANDED.
     5
      Aside from the issue discussed in the text, the trial
court’s order does not “detail the perceived prejudice to the
defendant” that would “justif[y] the extreme sanction imposed.”
Dorman, __ N.C. App. at __, 737 S.E.2d at 470.         “Absent a
finding explaining the specific and continuing prejudice [the
d]efendant will suffer,” a trial court is not authorized to
dismiss a pending criminal case as a sanction for a discovery
violation by the State.   Id. Thus, wholly aside from the fact
that the record does not, in fact, disclose the existence of any
discovery violation relating to the failure to obtain and
preserve the pawn shop surveillance video, we would also be
required to reverse the trial court’s dismissal order based upon
its failure to delineate the “specific and continuing” prejudice
to which Defendant would be subject as a result of the alleged
discovery violation.
                         -17-
Chief Judge MARTIN and Judge McCULLOUGH concur.
