STATE OF NORTH CAROLINA

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STATE OF NORTH CAROLINA

COUNTY OF BUNCOMBE |IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

06 DOJ 0200 | |

|SCOTTY EUGENE ROBINSON, |) | |

| |) | |

|Petitioner, |) | |

| |) | |

|vs. |) |PROPOSAL FOR DECISION |

| |) | |

|N.C. SHERIFF'S EDUCATION AND |) | |

|TRAINING STANDARDS COMMISSION, |) | |

| |) | |

|Respondent. |) | |

|__________________________________ |) | |

| |) | |

This contested case was heard before Chief Administrative Law Judge Julian Mann, III, on the 5th day of July, 2006, in the Buncombe County Courthouse, Asheville, North Carolina

APPEARANCES

Petitioner: Sarah Patterson Brison, Roberts & Stevens, P. A.

Attorneys at Law

Respondent: John J. Aldridge, III, Special Deputy Attorney General

ISSUE

Is Respondent's proposed denial of Petitioner's Justice Officer Certification which is based on commission, but not conviction, of a Class B misdemeanor (resisting police officer) supported by substantial evidence?

Based upon a preponderance of the admissible evidence, the undersigned makes the following:

FINDINGS OF FACT

1. The Petitioner, Scotty Eugene Robinson, is a resident of Buncombe County, North Carolina (hereinafter "Petitioner").

2. The Respondent is the North Carolina Sheriffs' Education and Training Standards Commission (hereinafter "Commission").

3. The Commission has the authority granted under Chapter 17E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 10B, to certify justice officers and to revoke, suspend, or deny such certification.

4. Both parties are properly before the Office of Administrative Hearings, in that jurisdiction and venue are proper. Both parties received Notice of Hearing, and the Petitioner received the Notification of Probable Cause to Deny Justice Officer Certification letter mailed by the Respondent on December 14, 2005.

5. Petitioner appeals from a Notification of Probable Cause to Deny Justice Officer Certification from the Probable Cause Committee of the Commission.

6. The Commission appointed Petitioner as a part-time deputy with the Haywood County Sheriff's Office on November 17, 2004. The Petitioner took a corresponding oath of office as a Deputy Sheriff through the Haywood County Sheriff's Office on November 17, 2004.

7. In furtherance of his application for certification through the Respondent as a deputy sheriff with the Haywood County Sheriff’s Office, the Petitioner completed a Personal History Statement (Form F3) on November 11, 2004. In response to Question No. 47 of this form, the Petitioner indicated that he had previously been charged on December 6, 2003 with the criminal offenses of driving while impaired, reckless driving, carrying a concealed weapon, and resist, delay, and obstruct an officer in the performance of his duties. The Petitioner indicated that he was found guilty of the driving while impaired charge and that the remaining three charges were dismissed by the District Attorney.

8. As indicated on his Personal History Statement and by his testimony, Petitioner served in the United States Army as a military police officer and received an honorable discharge. During his service, the Petitioner received several awards, including two Army Achievement Medals, the Army Good Conduct Medal and the Army Commendation Medal.

9. The Petitioner was awarded the Army Achievement Medal for his efforts in stopping a potential incident between soldiers which was on the verge of erupting into a major bar fight while off-duty during his service as a military police officer.

10. The Petitioner also indicated on the Personal History Statement that he had received a total of three Domestic Violence Protective Orders issued against him. All three were subsequently dismissed.

11. In due course when such charges and orders are disclosed by an applicant, the Respondent’s staff proceeded to collect information relevant to these particular charges to determine if any bar to certification existed.

12. The Petitioner was criminally charged by Trooper P. J. Morgan of the North Carolina State Highway Patrol on December 6, 2003 with the criminal offenses of driving while impaired, reckless driving, carrying a concealed weapon, and resist, delay, and obstruct an officer in the performance of his duties. As to each of the four charged offenses from December 6, 2003, the Petitioner pled guilty to driving while impaired. The Petitioner on December 6, 2003 registered a blood alcohol content of .14. In exchange for his plea of guilty to this driving while impaired offense, the remaining three offenses were voluntarily dismissed by the District Attorney’s Office. Trooper Morgan was not present at the disposition of these charges as he was on medical leave with a torn ACL. As to the misdemeanor offense of resisting a public officer, in violation of North Carolina General Statute § 14-223, Trooper Morgan alleged Petitioner committed this offense when the Petitioner exited his vehicle and ran while being chased by Trooper Morgan, as Trooper Morgan was in the process of executing a traffic stop of the Petitioner.

13. The finding of probable cause for denial of Petitioner's certification as a justice officer by the Probable Cause Committee of the Commission was based upon 12 NCAC 10B.0204 (d)(2) and the purported commission, but not conviction, of a crime or unlawful act defined in 12 NCAC 10B.0103(10)(b) as a Class B misdemeanor within the 5 year period prior to the date of appointment, being commission of violation of N.C.Gen.Stat. sec. 14-223, resisting a police officer.

14. 12 NCAC 10B .0204(d)(2) provides that the Commission may revoke, suspend, or deny the certification of a justice officer when the Commission finds that the applicant for certification or the certified officer has committed or been convicted of a crime or unlawful act defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor within the 5 year period prior to the date of appointment.

15. The criminal offense of resist a public officer, in violation of N.C.G.S. § 14-223, constitutes a Class B misdemeanor pursuant to 12 NCAC 10B .0103(10)(b) and the Class B Misdemeanor Manual as promulgated under the Commission’s rules.

16. 12 NCAC 10B .0103(16) provides that the term “commission” as it pertains to criminal offenses shall mean a finding by the Commission or an administrative body, pursuant to the provisions of G.S. § 150B, that a person performed the acts necessary to satisfy the elements of a specified criminal offense.

17. In his statement regarding the charge of resist, delay, and obstruct an officer, the Petitioner wrote that he had parked his vehicle and began to run down the side of Airport Road toward his friend. The Petitioner stated that he had not seen Trooper Morgan pull in behind his vehicle as he was running in the opposite direction. The Petitioner stated that as soon as he heard Trooper Morgan order him to stop, he immediately did so. When asked by Trooper Morgan if he had been drinking, the Petitioner told Trooper Morgan, “A lot.”

18. On December 5, 2003, Petitioner graduated from Asheville-Buncombe Technical Community College (hereinafter "AB-Tech") with a Certificate for Completion of Basic Law Enforcement Training (hereinafter "BLET"). The Petitioner was a member of the President's List while at AB-Tech. Scott Bissinger, Director of the Law Enforcement Education and Training Center for AB-Tech, furnished the Petitioner with an Affidavit for the hearing as Mr. Bissinger was out of the country on the date of the hearing. Mr. Bissinger would recommend Mr. Robinson be certified and employed as a law enforcement officer in North Carolina.

19. Petitioner and some of his classmates in the BLET course decided to celebrate their graduation on December 5, 2003, by gathering at the Holiday Inn on Airport Road. The Petitioner and others decided that since it was likely that some classmates may drink alcoholic beverages, it would be prudent to check on the availability of rooms at the Holiday Inn to stay overnight after their party. Petitioner contacted the Holiday Inn prior to the party to make sure that rooms were available and arrived before others and checked again with the front desk to make sure that rooms were available for stay that evening. The Petitioner or some classmates did pay for some rooms later that evening.

20. During the party, one of Petitioner's classmates, Lorrie Taylor, arrived. Ms. Taylor and others were consuming alcoholic beverages and a verbal and near-physical altercation occurred between Ms. Taylor and Scott Rogers, a classmate with whom she had a dating relationship. The Petitioner intervened in the altercation and successfully steered those involved in the altercation outside of the Holiday Inn bar area to the parking lot in an attempt to calm things down.

21. In order to avert a continued altercation, the Petitioner arranged for Scott Rogers to be driven home by another classmate who had not been drinking. Ms. Taylor tried to leave the parking area by driving in her vehicle, but the Petitioner succeeded in getting her car keys from her and giving them to another classmate.

22. Ms. Taylor was angry with the Petitioner and pushed him in the chest and then left the area of the parking lot where the Petitioner and other classmates were still standing. The Petitioner initially thought that Ms. Taylor was walking away to cool off, but then saw Ms. Taylor take off running on the grassy area in front of the Holiday Inn and along Airport Road heading in an easterly direction away from the Holiday Inn parking area. Petitioner was concerned for the safety of Ms. Taylor as she had been drinking; it was about 2:15 a.m., it was very cold and it had been raining and sleeting. Petitioner checked with others in the parking lot and no one seemed to be interested in pursuing Ms. Taylor, so the Petitioner felt it was his duty to pursue her to prevent her from serious harm.

23. Petitioner knew Ms. Taylor to be in excellent physical condition and able to outrun many of her classmates in his BLET class. For that reason, he felt he could only catch up with her if he drove his vehicle a short distance on Airport Road and parked it in order to get out and run back towards her to intercept Ms. Taylor.

24. Trooper Phillip Morgan has been a trooper with the North Carolina State Highway Patrol since approximately January 2003. On the night of December 6, 2003, at approximately 2:15 a.m., Trooper Morgan was on routine patrol in Buncombe County on Highway 280. He noticed a vehicle exiting the Holiday Inn parking lot at a high rate of speed, losing traction and turning sideways as the vehicle entered highway 280 East. It was the Petitioner’s vehicle. When the Petitioner’s vehicle exited the Holiday Inn and proceeded eastbound on Highway 280, Trooper Morgan was behind the Petitioner’s car approximately five to six car lengths and headed eastbound on Highway 280. After observing the Petitioner’s car lose traction and turn sideways on N.C. 280, Trooper Morgan activated his blue lights and attempted to stop the vehicle. The Petitioner’s vehicle continued eastbound on N.C. 280. The Petitioner exited his vehicle, turned and looked at Trooper Morgan, and proceeded to run westbound away from his vehicle and Trooper Morgan in the middle of N.C. 280 back towards the Holiday Inn. Trooper Morgan advised Asheville Communications that he was in a foot pursuit of an unknown suspect westbound on N.C. 280.

25. Trooper Morgan gave chase after the Petitioner on foot down N.C. 280 and had to verbally shout in a deep loud voice three times before the Petitioner finally complied.

26. Trooper Morgan described the Petitioner as being excited and the Petitioner kept talking about a friend that was walking on N.C. 280.

27. The Petitioner was generally cooperative and complied with all instructions of Trooper Morgan. There was no physical resistance by the Petitioner nor any foul language used by the Petitioner the entire time of involvement between the Petitioner and Trooper Morgan. Petitioner was very talkative and tried to get Trooper Morgan to listen to the Petitioner about the plight of his classmate and that the Petitioner asked Trooper Morgan for leniency under the circumstances.

28. After being placed under arrest for driving while impaired, the Petitioner pleaded with Trooper Morgan not to charge him with driving while impaired because he had just graduated from basic law enforcement training.

29. Two other officers arrived on the scene to assist Trooper Morgan, including Officer Cordell who was then with the Town of Fletcher Police Department.

30. The Petitioner was transported to the Magistrate's office at the Buncombe County Detention Center. Not until the appearance before the Magistrate did Trooper Morgan advise the Petitioner as to any charges and only then did the Petitioner first learn that he was being charged with resisting a public officer under N.C.Gen.Stat. § 14-223.

31. Having evaluated the demeanor and testimony of the Petitioner and Trooper Morgan, the undersigned finds Trooper Morgan’s testimony and recollection of the events more credible and accurate. The Petitioner had been drinking on the night in question, with a reported blood alcohol content of .14, whereas Trooper Morgan was executing his duties as a Trooper with the Highway Patrol. Trooper Morgan stopped his marked North Carolina State Highway Patrol car directly by the right rear bumper of the Petitioner’s car with his blue lights activated. Trooper Morgan parked in this fashion because the Petitioner stopped his vehicle in the middle of N.C. 280. Trooper Morgan stated that the Petitioner, upon exiting his car, turned and looked at him. Trooper Morgan was in the uniform of a North Carolina State Highway Patrolman. The Petitioner proceeded to run westbound in the roadway of N.C. 280. Trooper Morgan had to give chase after the Petitioner and shout for him to stop three separate occasions before the Petitioner complied.

32. Deputy Curtis Wallace of the Madison County Sheriff's Department arrived at the Holiday Inn at about 10:30 or 11:00 p.m. on the evening of December 5, 2003, to participate in the party with the Petitioner and other classmates. Deputy Wallace was a classmate of the Petitioner and Ms. Taylor. Deputy Wallace observed Ms. Taylor and Scott Rogers and their heated argument in the bar area. Ms. Taylor was agitated and appeared to have been drinking. He later saw the Petitioner and another classmate, Keith Locklear, talking to Ms. Taylor in the Holiday Inn parking lot. Deputy Wallace left the Holiday Inn parking lot and returned home before Ms. Taylor ran away from the parking lot area.

33. Deputy Wallace stated that he has always thought highly of the Petitioner, that the Petitioner had a good reputation among other law enforcement officers and students and that he trusted the Petitioner. Deputy Wallace would have no hesitancy in recommending the Petitioner be certified as a law enforcement officer and would willingly serve with him.

34. Detective Larry Bryson of the Haywood County Sheriff’s Office testified that he has known the Petitioner since September 2004. The Petitioner has assisted the Haywood County Sheriff’s Office in shutting down a local store that was selling marijuana. Detective Bryson stated that he felt that the Petitioner could be a good law enforcement officer but that after hearing the testimony at the Administrative Hearing concerning Petitioner’s actions on the night of December 6, 2003, he felt a period of probation would be necessary for the Petitioner.

35. Sheriff Tom Alexander of the Haywood County Sheriff's Department submitted a letter of recommendation on behalf of the Petitioner and asked for a favorable consideration for the Petitioner. Sheriff Alexander was not able to be present at the hearing as he was out of the area on vacation.

36. The Petitioner provided three letters of recommendation to the Probable Cause Committee of the Commission. Those letters of recommendation are from Randy Erwin and Ryan Singleton, two law enforcement officers, and from Scott Bissinger.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, the undersigned concludes as a matter of law:

1. Both parties are properly before the Office of Administrative Hearings and jurisdiction and venue are proper.

2. The North Carolina Sheriffs’ Education and Training Standards Commission has the authority granted under Chapter 17E of the General Statutes, Title 12 of the North Carolina Administrative Code, Chapter 10B, to certify justice officers and to deny, revoke or suspend such certification.

3. Pursuant to 12 NCAC 10B .0204(d)(2), the Commission may revoke, deny, or suspend the certification of a justice officer when the Commission finds that the applicant for certification has committed a crime or unlawful act defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor and which occurred before the date of initial certification.

4. The offense of resist, delay, and obstruct, in violation of N.C.G.S. § 14-223, is a Class B misdemeanor. A preponderance of the evidence exists to support the conclusion that on December 6, 2003, the Petitioner committed the offense of resist, delay, and obstruct when he refused to stop and stay in his vehicle in response to the blue lights of Trooper Morgan and proceeded to exit his vehicle on foot down Highway 280. The Respondent may properly deny Petitioner’s certification pursuant to 12 NCAC 10B .0204(d)(2).

PROPOSAL FOR DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned proposes that Respondent, for a period of one year, deny the Petitioner’s Justice Officer Certification based on his commission of the Class B misdemeanor offense of resist, delay, and obstruct an officer and thereafter allow Petitioner to reapply without further consideration of the events of December 6, 2003.

NOTICE

The Agency making the Final Decision in this contested case is required to give each party an opportunity to file Exceptions to this Proposal for Decision, to submit Proposed Findings of Fact and to present oral and written arguments to the Agency. N.C.Gen.Stat. § 150B-40(e).

The Agency that will make the Final Decision in this contested case is the North Carolina Sheriffs' Education and Training Standards Commission.

This the 8th day of December, 2006.

_______________________________________

Julian Mann, III

Chief Administrative Law Judge

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