State v. Tarlton, ___ N.C. App. ___, 2021-NCCOA-458 (Sept. 7, 2021)

A confidential informant called the local police department, describing the defendant’s appearance and stating that the defendant would be at a certain location with a significant amount of methamphetamine in his bookbag. When the officers arrived at the scene, they found the defendant, matching the description, and sitting down with a bag and a knife. The officers asked the defendant if he had anything on him, to which the defendant responded he had marijuana in his pocket. After the officers retrieved the marijuana, the bag, and the knife, the defendant ran and was quickly apprehended by the officers.

At trial, the defendant stipulated that his book bag contained methamphetamine and heroin. The defendant moved to dismiss at the close of the State’s evidence and again at the close of all evidence, both of which were denied. The defendant was found guilty of possession with intent to sell and deliver methamphetamine, possession of heroin, misdemeanor possession of marijuana, possession of drug paraphernalia, resisting a public officer, and attaining habitual felon status.

On appeal, the defendant argued that the trial court erred when it denied his motion to dismiss the charge for resisting a public officer because there was a fatal variance between the indictment allegation and the evidence. Specifically, the indictment alleged that at the time of the defendant’s resistance, the detective was “attempting to take the defendant into custody for processing narcotics” but the evidence at trial only showed that the defendant ran from officers, including the detective, after a small amount of marijuana was seized from his person. Slip op. at ¶ 14. In rejecting the defendant’s argument, the Court of Appeals held that that an essential element of the charge of resisting a public officer is the identification of the official duty an officer was discharging or attempting to discharge at the time of a defendant’s resistance, rather than the specific basis for arrest. Thus, the Court concluded that the actual basis of arrest is not necessary to properly charge the offense of resisting a public officer.