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Criminal Practice – Motions to Suppress – Findings & Conclusions – Oral Order – Hand Gestures

Although the trial court instructed the state to draw up proposed orders denying defendant’s motions to suppress various evidence, and although the judge suggested that the parties offer additional proposed findings of fact for him to consider, since there was no conflict in the evidence, the trial court was not even required to make findings of fact. Nevertheless, the trial court made detailed oral findings of fact and conclusions of law. No written orders were required.

We find no error in defendant’s convictions of discharging a firearm into an occupied vehicle in operation inflicting serious injury, felony murder, and possession of marijuana with the intent to sell.

The trial judge referred to his oral findings and conclusions as “sketch[es] of what [he] would like to include” in any written orders and would have “be[en] happy to consider any proposed findings” offered by the parties. However, nothing in the transcript indicates that the judge had not made up his mind on the findings and conclusions that were rendered aloud; rather, it appears the trial judge was merely giving counsel an opportunity to submit proposed findings and conclusions consistent with those recited orally, as the judge “preserve[d] the right to clarify” his findings and conclusions once proposed written orders were submitted.

We will not construe the trial court’s characterization of its findings and conclusions as “sketches” as an intention to enter written orders contrary to the facts found and conclusions reached on the record, nor will we construe its instructions to counsel to do likewise.

Photo Evidence

Defendant argues that photos of his car and gun should have been excluded under N.C. R. Evid. 404(a) and (b). His argument is premised on the assumption that possession of a firearm and flashing gang signs “show bad character and bad acts.”

We fail to see how possession of a firearm is indicative of bad acts or bad character—gun ownership is enshrined in the Second Amendment to the U.S. Constitution, and we do not believe the exercise of that right indicates a person’s poor character.

As for any purported gang signs, we fail to see how the hand signals in the car photo indicate gang affiliation in any way. The photo shows two men with four fingers of their left hands extended – a common hand gesture representing the number “4,” – while one man has his right hand in a closed fist with his middle finger extended – a common expression of vulgarity.

Nothing in the record suggests that either gesture indicates gang affiliation; besides, the trial judge instructed “the District Attorney’s office not to ask any questions about signs or gang affiliation based on this picture.” Reviewing the issue de novo, we hold that neither the car photo nor the gun photos fall within the ambit of Rule 404.

No error.

State v. Dixon (Lawyers Weekly No. 011-303-18, 22 pp.) (Lucy Inman, J.) Appealed from Cabarrus County Superior Court (Martin McGee, J.) Marc Bernstein for the state; Marilyn Ozer for defendant. N.C. App.

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