COUNTY OF PITT
JACQUELINE G. CHERRY,
Petitioner,
v.
N.C. SHERIFFS’ EDUCATION
AND TRAINING STANDARDS COMMISSION,
Respondent.
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ADMINISTRATIVE HEARINGS
09 DOJ 3033
PROPOSAL FOR DECISION
On October 30, 2009, Administrative Law Judge Melissa Owens Lassiter heard this case in Greenville, North Carolina. This case was heard after Respondent requested, pursuant to N.C.G.S. §150B-40(e), the designation of an administrative law judge to preside at the hearing of a contested case under Article 3A, Chapter 150B of the North Carolina General Statutes.
APPEARANCES
Petitioner: Jamal Summey, Esq.
Attorney for Petitioner
P.O. Drawer 389
110 East Tenth Street
Scotland Neck, North Carolina 27874
Respondent: J. Joy Strickland
Assistant Attorney General
Attorney for Respondent
N.C. Department of Justice
9001 Mail Service Center
Raleigh, North Carolina 276999001
ISSUE
Did Respondent properly propose to revoke the Petitioner’ justice officer certification based upon Petitioner’s commission of the class B misdemeanor of Injury to Personal Property that exceeded $200 in damages in violation of N.C.G.S. §14-160, and because Petitioner lacks the good moral character required of every justice officer?
RULES AT ISSUE
12 NCAC 10B .0204(d)(1)
12 NCAC 10B .0103(10)(b)
12 NCAC 10B .0301(a)(8)
12 NCAC 10B .0204(b)(2)
12 NCAC 10B .0205(2)(a) and (3)(b)
FINDINGS OF FACT
1. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, both parties received notice of hearing, and that the Petitioner received by certified mail, the proposed Revocation of Justice Officer’s Certification letter, mailed by Respondent Sheriffs’ Commission on March 25, 2009. (Resp Exhibit 4)
Background Facts
2. The North Carolina Sheriffs’ Education and Training Standards Commission (hereinafter referred to as “The Sheriffs’ 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 deny, revoke, or suspend such certification.
3. 12 NCAC 10B. 0204(d)(1) states that the Sheriffs’ Commission may revoke the certification of a justice officer when the Commission finds that the certified officer has committed:
a crime or unlawful act defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor and which occurred after the date of appointment.
4. Commission of the offense of injury to personal property in excess of $200 in damages in violation of N.C.G.S. § 14-160 is a crime or unlawful act as defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor. (Resp Exhibit 5)
5. 12 NCAC 10B. 0204(b)(2) states that the Sheriffs’ Commission shall revoke the certification of a justice officer when the Commission finds that the certified officer: “fails to meet or maintain any of the employment or certification standards required by 12 NCAC 10B .0300.”
6. 12 NCAC 10B. 0301 sets forth the minimum standards for justice officers. 12 NCAC .0301(a)(8) requires that every justice officer employed or certified in North Carolina shall:
be of good moral as defined in: In re Willis, 299 N.C. 1, 215 S.E.2d 771 appeal dismissed 423 U.S. 976 (1975) ;State v. Harris, 216 N.C. 746, 6 S.E.2d 854 (1940); In re Legg, 325 N.C. 658, 386 S.E.2d 174 (1989); In re Applicants for License, 143 N.C. 1, 55 S.E. 635 (1906); In re Dillingham, 188 N.C. 162, 124 S.E. 130 (1924); State v. Benbow, 309 N.C. 538, 308 S.E.2d 647 (1983); and their progeny.
7. On November 20, 2003, Respondent granted a Probationary Deputy Sheriff Certification to Petitioner through the Bertie County Sheriff’s Office. (Resp Exhibit 1).
8. On August 11, 2005, Respondent granted General Deputy Sheriff Certification to Petitioner through the Bertie County Sheriff’s Office. (Resp Exhibit 2).
9. On March 25, 2009, Respondent’s Probable Cause Committee found probable cause to believe that Petitioner’s justice officer certification should be revoked based upon her commission of the class B misdemeanor of Injury To Personal Property in excess of $200 in damages, and in violation of N.C.G.S. § 14-160. The Committee also found probable cause to believe that Petitioner’s certification should be revoked, because Petitioner lacks the good moral character required of every justice officer. (Resp Exhibit 4)
10. Petitioner appealed Respondent’s Probable Cause findings by requesting a contested case hearing.
Adjudicated Facts
11. On or about December 18, 2008, Eric Bell was living at 516 Pam Drive in Greenville, North Carolina with his mother, Patricia Bond, and his brother, Casey Bond. Bell is familiar with Petitioner, because she was engaged to his brother, Casey.
12. On the night of December 18, 2008, Bell was in his room checking his email when he saw car lights coming through his window. He heard banging on the front door of the trailer. He looked out of his window, and saw the Petitioner’s car, a dark colored Dodge Nitro. Bell recognized the car, because he had seen it many times, and had actually driven it. Bell did not answer the door, because he knew that his brother Casey had a female friend at the home.
13. Bell then heard knocking on one of the windows. Bell was able to see Petitioner outside, because her car lights were on, the nearby streetlight was on, and Bell’s room lights were on. Bell did not see anyone other than Petitioner outside the home at that time. He looked out the window again, and saw Petitioner pick up a brick.
14. After realizing Petitioner had thrown the brick through the window of his mom’s car, Bell went outside. Bell tried to follow Petitioner in a car, but was unable to find her. Bell’s mother, Patricia Bond, owned the car that was damaged by Petitioner. Casey Bell, Eric’s brother, drives Ms. Bond’s car. Bell returned home, and saw his mom call the police. Once the police arrived, he told them what happened, and wrote a statement for the Pitt County Sheriff’s Office. In this statement, Bell said, “I then seen [sic] Ms. Cherry remove a brick that was placed around shrubs in front of my window, and break Casey’s window.” (Resp Exhibit 6)
15. On or about December 18, 2008, Ms. Patricia Bond was living at 516 Pam Drive in Greenville, North Carolina with her sons Casey Bond and Eric Bell. That night, Bond heard loud knocking on the door and window of the trailer. She recognized the knock as belonging to the Petitioner. Her “Infinity” car was damaged. She called the police, and had a warrant issued against the Petitioner for injury to property. Ms. Bond obtained an estimate of $833.83 for the cost of repairs for her vehicle. (Respondent’s Exhibit 7)
16. On December 18, 2008, Deputy Sheriff Kenneth Ray Waters, a ten-year veteran of the Pitt County Sheriff’s Office, was dispatched to 516 Pam Drive in Greenville, North Carolina regarding the “Injury to Property” charge. Once he arrived at that residence, he spoke to Casey Bond, Eric Bell, and Patricia Bond. He obtained a written statement from Eric Bell identifying the Petitioner as the perpetrator of the damage to the “Infinity” vehicle. Deputy Waters took photographs depicting the damage to Ms. Bond’s vehicle, and the brick area outside Ms. Bond’s trailer. (Resp Exhibit 8)
17. Deputy Waters also prepared an incident/investigation report regarding the December 18, 2008 incident. Although Waters did not obtain an arrest warrant for the Petitioner, he explained to Ms. Bond the process by which she could obtain a warrant at the magistrate’s office. (Resp Exhibit 9)On or about December 19, 2008, Petitioner was served with a warrant for arrest in Pitt County File # 08 CR 062601 for Injury To Personal Property in excess of $200.00 in violation of N.C.G.S. § 14-160 8. The warrant alleged that on or about December 18, 2008, Petitioner:
Unlawfully and willfully did wantonly injure personal property, SIDE VEHICLE WINDOW AND TRUNK TO A INFINITY Q45 VIN # JNKNG01C3NM202937CAUSING APPROXIMATELY $3000.00 IN DAMAGE, the property of PATRICIA BELL BOND. The damage caused was in excess of $200.00.
The Order for Arrest scheduled a December 29, 2008 court date for the subject charge to be heard in Greenville, North Carolina. (Resp Exhibit 3, page 1)
18. On the day she was served with the Order for Arrest, Petitioner appeared before Magistrate Edward Earl Aldridge. Aldridge released Petitioner on an unsecured bond with the following conditions:
YOU ARE TO HAVE NO CONTACT DIRECT OR INDIRECT (3RD PARTY, EXCEPT ATTORNEY) WITH PATRICIA BOND, ERIC BELL, OR CASEY BOND. VIOLATION OF THIS RESTRICTION WILL RESULT IN AN ORDER FOR YOU [sic] ARREST AND A $15000.00 SECURED DOND [sic] BEING SET.
(Resp Exhibit 3, page 2)
19. On December 29, 2008, Petitioner appeared in Pitt County District Court in for the trial of her Injury to Personal Property charge. The Assistant District Attorney dismissed the Injury to Property charge against Petitioner because the “PW has been paid in full & requests dismissal.” Patricia Bond, the victim who owned the car that Petitioner damaged, signed below that statement on the dismissal form. Ms Bond also signed an attachment to the dismissal form that read as follows:
I, Patricia Bell [Bond], have been paid in full in court on Dec 29, 2008 from the prop damage arising on 12/18/08 from Jacqueline Cherry.
(Resp Exhibit 3, pages 3-4)
20. When Ms. Bond appeared for Petitioner’s criminal case in District Court, she intended to prosecute the case. However, her son Casey convinced her to have the case dismissed. In order to have the case dismissed, Petitioner was required to pay Ms. Bond $500 for the deductible on her insurance. As Petitioner did not have all of the money in court that day, Casey loaned her the remaining amount. As Ms. Bond got into her car to leave the courthouse that day, Petitioner approached her, apologized, and said she was sorry for what she had done.
21. At the administrative hearing, Respondent’s counsel called Petitioner as a witness. After Petitioner refused to testify, she stipulated, through her counsel, that she had damaged Ms. Bond’s vehicle on December 18, 2008, and committed each element of the “Injury To Personal Property” charge in violation of N.C.G.S. §14-160.
22. In Petitioner’s written request for an administrative hearing on this matter, she stated that she “did not damage any property belonging to Ms. Patricia Bond.” (Resp Exhibit 10) This statement is inconsistent with the witnesses’ testimony and Petitioner's stipulation at the hearing that she committed the offense of damage to the personal property of Ms. Bond.
23. Furthermore, in responding to Respondent’s First Set of Interrogatories and Request for Admissions, Petitioner denied:
a. Paying $500.00 restitution to Patricia Bond before the Pitt County District Attorney dismissed the “Injury to Personal Property” charge, file no. 08 CR 062601, against Petitioner.
b. Being at the residence of Patricia and Casey Bond, located at 516 Pam Drive, Greenville, North Carolina, 27834 on or about December 18, 2008, the night that Ms. Bond’s car was damaged. She added that she “was at home asleep. As stated during the first administrative hearing, I had two juveniles that were placed in my custody at the home on the said date and time through the department of social services.”
c. Having a brick in her possession at the residence of Patricia and Casey Bond located at 516 Pam Drive, Greenville, North Carolina, 27834 on or about December 18, 2008, the night that Ms. Bond’s car was damaged.
d. Damaging an Infinity Q45 motor vehicle belonging to Patricia Bond on or about December 18, 2008.
e. Apologizing to Ms. Patricia Bell Bond and telling her that she was sorry she damaged Bond’s car, and that “I had no reason to apologize.”
These statements are inconsistent with the witnesses’ testimony and Petitioner's stipulation at the hearing that she committed the offense of damage to the personal property of Ms. Bond. (Resp Exhibit 11)
24. At hearing, Casey Bond testified on Petitioner’s behalf. He explained that he is currently in a relationship with the Petitioner, and that “she has no bad habits.” He opined that Petitioner is a good person, and that he does not want her to lose her job. However, he admitted Petitioner violated the condition of her bond by spending the night with him the night before she attended District Court on the “Injury to Personal Property” charge.
CONCLUSIONS OF LAW
1. The parties properly are before the undersigned Administrative Law Judge and jurisdiction and venue are proper. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case. The parties received proper notice of the hearing in this matter. To the extent that the Findings of Fact contain Conclusions of Law, or that the Conclusions of Law are Findings of Fact, they should be so considered without regard to the given labels.
2. The North Carolina Sheriffs' Education and Training Standards Commission has the authority granted under 17E of the N.C.G.S. and Title 12 of the North Carolina Administrative Code, Chapter 10B, to certify justice officers and to deny, revoke or suspend such certification.
3. 12 NCAC 10B. 0204(d)(1) states that the Sheriffs’ Commission may revoke the certification of a justice officer when the Commission finds that the certified officer has committed:
a crime or unlawful act defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor and which occurred after the date of appointment.
4. Commission of the offense of Injury to Personal Property in excess of $200 in damages, in violation of N.C.G.S. § 14-160, is a crime or unlawful act, as defined in 12 NCAC 10B .0103(10)(b), as a Class B misdemeanor. (Respondent’s Exhibit 5)