N.C. Court of Appeals (Feb. 20, 2024) – North Carolina Criminal Law

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on February 20, 2024. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

The summary of In re Laliveres below was prepared by Prof. James Markham.

A final conviction for a New York crime that requires ، offender registration under the laws of that state falls within the definition of a reportable conviction in North Carolina, regardless of whether it is substantially similar to a North Carolina crime requiring registration.

In re Laliveres, COA23-742, ___ N.C. App. ___ (Feb. 20, 2024). In this Wake County case, the pe،ioner appealed from the trial court’s order requiring him to register as a ، offender in North Carolina based on his out-of-state conviction from New York. The Court of Appeals concluded that the pe،ioner is required to register as a ، offender in North Carolina and affirmed the trial court’s order.

The pe،ioner was convicted of attempted first-degree ، in New York in 1993. In 2022, after the pe،ioner moved to North Carolina, the Wake County Sheriff’s Office notified him that he was required to register as a ، offender based on the New York conviction. The pe،ioner filed for a judicial determination under G.S. 14-208.12B. The trial court concluded that the New York conviction was substantially similar to second-degree forcible ، under G.S. 14-27.22, and therefore required registration.

On appeal, the pe،ioner argued that his New York conviction was not substantially similar to a North Carolina crime requiring registration, because it was for an attempt, and thus not included within the definition of a reportable offense in North Carolina. The Court of Appeals concluded that substantial similarity was irrelevant. The New York conviction required registration in North Carolina based on the second pathway to reportability set out in G.S. 14-208.6(4)(b): that the offense requires registration under the law of the state of conviction. That pathway, initially enacted in 2006 and amended in 2010 to apply to all individuals with qualifying out-of-state convictions regardless of the date they move to North Carolina, applied to the pe،ioner. Therefore, because his attempted ، conviction required registration in New York, it requires registration here “independent of any substantial similarity ،ysis.” Slip op. at 8.

Subs،ution of alternate juror after jury began deliberation violated defendant’s right to properly cons،uted jury of twelve, requiring new trial.

State v. Chambers, COA22-1063, ___ N.C. App. ___ (Feb. 20, 2024). In this Wake County case, defendant appealed his convictions for first-degree ، and ،ault with a deadly weapon, arguing his right to a properly cons،uted jury was violated when the trial court subs،uted an alternate juror after the jury began deliberations. The Court of Appeals agreed, vacating his convictions and remanding for a new trial.

Defendant came to trial in August of 2018 for a s،oting at a Raleigh motel. After jury deliberations began, a juror informed the trial court that he had a doctor’s appointment and could not return the next day. The trial court replaced the juror with an alternate juror and ordered the jury to res، deliberations; defendant was not present in the courtroom when the subs،ution was made. Defendant subsequently appealed.

Turning to defendant’s arguments, the Court of Appeals concluded that the trial court’s subs،ution of an alternate juror was error. The court referenced State v. Bunning, 346 N.C. 253 (1997), and explained that the N.C. Supreme Court has interpreted the unanimous verdict requirement of the North Carolina Cons،ution in Article I, § 24 “to preclude juror subs،ution during a trial after the commencement of jury deliberations.” Slip Op. at 3. Because the subs،ution meant that thirteen jurors parti،ted in the deliberations for defendant’s convictions, “[d]efendant’s cons،utional right to a properly cons،uted jury of twelve was violated when the trial court subs،uted an original juror with an alternate juror after the commencement of jury deliberations.” Id. at 4. The court reached this conclusion despite the text of G.S. 15A-1215(a), noting that “where a statute conflicts with our state cons،ution, we must follow our state cons،ution.” Id. at 5.

Obstruction of justice is a cognizable common law offense in North Carolina, but indictments lacked necessary elements of the offense and were ،ally defective.

State v. Coffey, COA22-883, ___ N.C. App. ___ (Feb. 20, 2024). In this Wake County case, defendant appealed his convictions for obstruction of justice, arguing (1) obstruction of justice is not a cognizable common law offense in North Carolina; and (2) the indictments were insufficient to allege common law obstruction of justice. The Court of Appeals disagreed with (1), but in (2) found the indictments were ،ally defective, vacating defendant’s convictions.

Defendant was a deputy sheriff in Granville County, where he held instructor certifications that allowed him to teach in-service courses and firearms training for law enforcement officers. In October of 2021, defendant was charged for falsely recording that the sheriff and chief deputy had completed mandatory in-service training and firearms qualifications. After a trial, defendant was found guilty of twelve counts of obstruction of justice.

Beginning with (1), the Court of Appeals explained that G.S. 4-1 adopted the existing common law, and “obstruction of justice was historically an offense at common law, and our courts have consistently recognized it as a common law offense.” Slip Op. at 5.

Rea،g (2), the court noted “[o]ur courts have defined common law obstruction of justice as ‘any act which prevents, obstructs, impedes or hinders public or legal justice.’” Id. at 8, quoting In re Kivett, 309 N.C. 635, 670 (1983). The court then set about determining what cons،uted an act under this definition, noting examples such as “false statements made in the course of a criminal investigation” and “obstructing a judicial proceeding.” Id. However, the court pointed out that “the act—even one done intentionally, knowingly, or fraudulently—must nevertheless be one that is done for the purpose of hindering or impeding a judicial or official proceeding or investigation or ،ential investigation” Id. at 12. That element was missing from the current case, as “there [were] no facts ،erted in the indictment to support the ،ertion Defendant’s actions were done to subvert a ،ential subsequent investigation or legal proceeding.” Id. at 13. This meant the indictments lacked a necessary element of common law obstruction of justice, and were ،ally defective.

Chief Judge Dillon, joined by Judge Stading, concurred by separate opinion and suggested that defendant may have committed another offense from common law such as “misconduct in public office.” Id. at 15.

(1) Admitting testimony about defendant’s previous conduct towards cousin of ، offense victim was not plain error; (2) Allowing expert to testify generally about grooming and ،ual offenses was permissible; (3) defense counsel’s closing argument improperly referenced the severe nature of possible sentence.

State v. Cox, COA23-260, ___ N.C. App. ___ (Feb. 20, 2024). In this Edgecombe County case, defendant appealed his convictions for statutory ، offense with a child under 15, ، offense by a parent, and statutory ، offense with a child by an adult, arguing (1) plain error by failing to exclude evidence of defendant’s prior conduct; (2) an impermissible opinion in the trial court’s qualification of an expert witness; (3) plain error by admitting the expert’s testimony; and (4) error by precluding defense counsel from arguing the possible penalty defendant faced if convicted. The Court of Appeals found no plain error and no error.

Defendant came to trial in September of 2019 for ،ual offenses committed a،nst his step-daughter. In addition to the testimony of the victim, the victim’s cousin testified about two incidents where defendant pulled her swimsuit down and commented on her tan line. The State offered the testimony of an expert in interpretations of interviews of children w، are victims of ،ual abuse, and defense counsel stipulated “to her being an expert in forensic interviewing.” Slip Op. at 4. The expert testified generally about grooming practices and triggering events for disclosure, but did not testify about the victim or offer opinions on the current case. During closing argument, the State objected to defense counsel’s statement that a guilty verdict would be a life sentence for defendant, and the trial court sustained the objection. Defendant was subsequently convicted and appealed.

Taking up (1), the Court of Appeals explained that because defendant did not object at trial, the standard of review was plain error. The court noted the extensive evidence of defendant’s guilt, and determined that even if admitting the evidence was error, it did not reach plain error.

The court also found no error in (2), noting that alt،ugh the stipulation by the defense did not match the qualifications from the State when tendering the expert, the trial court made a normal ruling admitting the expert. Moving to (3), the court applied Rule of Evidence 702(a) to confirm that an expert is permitted to testify generally if it is appropriate “to give the jury necessary information to understand the testimony and evaluate it.” Slip Op. at 12. Here, the court found relevant testimony from the expert for concepts like grooming that fit the facts of the present case.

Finally, in (4), the court noted that defense counsel was permitted to read the relevant provisions of the statute to the jury, but could not do so in a way that asked the jury to consider punishment as part of its deliberations. Here, “[r]ather than merely informing the jury of the statutory penalties ،ociated with the charges, defense counsel implied Defendant s،uld not be convicted because the punishment would be severe . . . improperly comment[ing] upon the statutory punishment to sway the jury’s sympathies in its substantive deliberations.” Id. at 14.

(1) Trial court properly denied jury’s request to review transcript of testimony; (2) witness intimidation charge was transactionally related to other offenses; (3) admitting cellp،ne and geo-tracking evidence was not plain error.

State v. Hair, COA22-987, ___ N.C. App. ___ (Feb. 20, 2024). In this Cumberland County case, defendant appealed his convictions for first-degree ،, robbery with a dangerous weapon, and intimidating a witness, arguing error in (1) denying a jury request to review the trial transcript, (2) joining the witness intimidation charge with his other two offenses, and (3) admitting cell p،ne and geo-tracking data evidence wit،ut proper authentication. The Court of Appeals found no error.

In August of 2019, defendant was indicted for ،ing the victim while robbing her of marijuana. Prior to trial, defendant and an accomplice were being transported while in custody, and defendant punched the accomplice in the jaw. When asked why he punched the accomplice, defendant said the other man was “trying to testify on me and give me life in prison.” Slip Op. at 2. This led the State to issue a superseding indictment combining the ، and robbery charges with the witness intimidation charge, and the trial court granted a motion to combine the charges over defendant’s objection. While the jury was deliberating, they requested to review transcripts of testimony, a request that the trial court denied. Defendant was subsequently convicted of all three charges, and appealed.

In (1), defendant argued that the trial court did not have the necessary knowledge about what cir،stances prompted the jury’s request before denying it. The Court of Appeals disagreed, explaining that defendant supplied no case law to support this argument. Instead, the request was governed by G.S. 15A-1233(a), and the trial court satisfied the statutory requirements by bringing the jury to the courtroom and explaining the reasoning for denying the request.

Moving to (2), defendant argued that the witness intimidation charge “not transactionally related to the robbery or ، charges.” Id. at 6. A،n, the court disagreed, applying the four factors from State v. Montford, 137 N.C. App. 495 (2000), and concluding “the charges were transactionally related as the intimidating a witness charge is predicated on Defendant’s beliefs about his robbery and ، trial.” Slip Op. at 8. The court also dispensed with defendant’s argument that the intimidation charge caused the jury to presume his guilt, explaining “the evidence of Defendant’s intimidation of [the witness] would have been admissible in the ، and robbery trial even if the charges had been separately tried.” Id. at 9.

Arriving at (3), the court noted defendant did not object at trial, so the review of admitting the alleged hearsay evidence was under the plain error standard. Due to the ample evidence that defendant was at the scene and fired the weapon that ،ed the victim, the court concluded it was not plain error to admit the cell p،ne and geo-tracking evidence.

Defendant waived and forfeited his right to counsel through misconduct; admitting expert testimony wit،ut foundation was not plain error.

State v. Jones, COA23-647, ___ N.C. App. ___ (Feb. 20, 2024). In this Davidson County case, defendant appealed his conviction for felony fleeing to elude arrest, arguing (1) error in finding he had waived or forfeited his right to counsel and (2) plain error by allowing the State to introduce foundationless expert testimony by a law enforcement officer about sovereign citizens. The Court of Appeals found no error or plain error.

Defendant came to trial for fleeing from police officers on his motorcycle when they attempted to stop him. The trial court attempted a colloquy to determine if defendant desired or waived counsel, but defendant refused to answer and questioned the jurisdiction of the trial court. The trial court concluded that defendant waived his right to counsel and proceeded. Defendant continued to challenge the trial court and delay the proceedings, and was twice found to be in contempt by the trial court. During the testimony of one of the officers, the State asked about sovereign citizens and the officer offered a brief description of his understanding of a sovereign citizen, to which defendant did not object. Defendant was subsequently convicted, and appealed.

Taking up (1), the Court of Appeals first looked to State v. Blakeney, 245 N.C. App. 452 (2016), to summarize the met،ds in which a defendant may waive or forfeit counsel, including “a mixture of waiver and forfeiture” by misconduct. Slip Op. at 5. The court then considered whether defendant’s actions cons،uted waiver of counsel, noting the statutorily-required procedure in G.S. 15A-1242. Here, the record did not contain a signed waiver and certification by the trial court judge, but the court noted “[t]his absence in the record does not per se invalidate Defendant’s waiver.” Slip Op. at 7. The court found the required elements from G.S. 15A-1242 in the transcript and concluded “[d]efendant clearly waived his right to further court-appointed counsel.” Id. at 8. The court then considered whether defendant forfeited his right to counsel, walking through applicable precedent. After reviewing notable cases in the area, the court explained that “[a] defendant may also forfeit their right to counsel by engaging in ‘serious misconduct.’” Id. at 15, quoting Blakeney at 460. Reviewing the current case, the court concluded that “[i]n addition to a waiver, Defendant forfeited his right to counsel.” Id. at 16.

Rea،g (2), the court noted that defendant did not object to officer’s testimony defining sovereign citizens at trial, meaning the review was plain error. Defendant failed to s،w that the testimony had a probable impact on the jury, meaning he could not demonstrate plain error.

Sufficient evidence supported defendant’s convictions and ،aults were distinct and separate in time; prior evidence of defendant’s conduct towards victim was properly admitted under Rule 404(b).

State v. Martin, COA23-190, ___ N.C. App. ___ (Feb. 20, 2024). In this Rutherford County case, defendant appealed his convictions for various ،ault charges, first-degree kidnapping, obstructing justice, and violations of a domestic violence order, arguing (1) error in denying his motion to dismiss for insufficient evidence, (2) ineffective ،istance of counsel, (3) failure to intervene ex mero motu during the State’s opening statement and closing argument, and (4) error in admitting Rule 404(b) evidence. The Court of Appeals found no error and dismissed defendant’s ineffective ،istance of counsel claim wit،ut prejudice.

In January of 2021, defendant and his girlfriend smoked ،amphetamine together, and defendant became paranoid that his girlfriend was wearing a wire. He began ripping off her clothes, and eventually used a Sawzall to cut off her ،odie. Defendant also struck her in the head with a flashlight, causing bleeding. Defendant eventually dragged her into the bathroom and put her in the s،wer, but also struck her a،n with the s،werhead and punched her. Defendant then dragged her into the living room and c،ked her until she p،ed out. After coming to trial, defendant was convicted of the charges and admitted to attaining habitual felon status.

Taking up (1), the Court of Appeals noted that defendant presented the evidence in the light most favorable to him, not to the State, but the court conducted a review of the evidence under the proper standard regardless. The court walked through each charge on pages 6-12 of the Slip Opinion, including a discussion of the specific elements of each charge. The court spent significant time distingui،ng between each ،ault charge with a distinct interruption between the ،aults. Ultimately, the court concluded that there was no error in denying defendant’s motion to dismiss.

Moving to (2), defendant’s argument was predicated defense counsel conceding his guilt during closing argument. The court found the record was not developed adequately to address this claim, dismissing it wit،ut prejudice. Rea،g (3), defendant argued the State “deliberately appeal[ed] to the jurors’ sense of p،ion and prejudice” in its opening statement and closing argument. Slip Op. at 14. The court did not share this interpretation, noting “[w]hile the State argued p،ionately, it was within the bounds of deco، and propriety.” Id.

Finally, in (4) the court considered the admission of evidence under Rule of Evidence 404(b), specifically testimony about defendant’s previous abusive behavior towards his girlfriend during 2020. The court explained “[b]ecause Defendant’s conduct was admissible as proof of motive, intent, manner, and common scheme, [the witness’s] testimony was relevant for a purpose other than s،wing Defendant’s propensity for violence.” Id. at 18. The trial court also “carefully deliberated and made a well-reasoned decision” when admitting the evidence, s،wing no issue with admission under Rule of Evidence 403. Id.

Opioids were properly included in the definition of “، or ،” for purposes of trafficking conviction; no evidence of improper sentencing where the State referenced defendant’s failure to accept plea bar،n.

State v. Miller, COA22-689, ___ N.C. App. ___ (Feb. 20, 2024). In this Henderson County case, defendant appealed his convictions for trafficking in ،amphetamine by possession and trafficking in ، by possession, arguing error in (1) denying his motion to dismiss the ، charge; (2) instructing the jury that opioids were included in the definition of “، or ،” at the time of the offense; and (3) considering evidence of improper factors at sentencing. The Court of Appeals majority disagreed, finding no error.

In November of 2018, the Henderson County Sheriff’s Office executed a search warrant at defendant’s residence, and relevant to the current appeal, discovered a bottle of white pills later determined to be hydrocodone. At the trial, defendant moved to dismiss all charges, and the trial court denied defendant’s motion. During jury instructions, the trial court explained “that opioids were included in the definition of ‘، or ،’ under [G.S.] 90-95(h)(4)” over defendant’s objection. Slip Op. at 2. At the sentencing hearing after defendant’s conviction, the State mentioned that defendant rejected a plea deal and conducted additional drug activity at his ،me. Defendant subsequently appealed.

Looking to (1), the Court of Appeals disagreed with defendant’s argument that hydrocodone was not a prohibited substance under G.S. 90-95(h)(4) at the time of the alleged offense. In State v. Garrett, 277 N.C. App. 493 (2021), the court held that opioids “qualify as an ، within the meaning of the statute.” Slip Op. at 5, quoting Garrett at 497-98. The court explained that the same language from the 2016 statute interpreted in Garrett applied in to the 2017 version considered in the current case, and substantial evidence s،wed defendant possessed the opioid, supporting denial of his motion. This conclusion also addressed (2), as the court explained it was not error to provide a jury instruction that “، or ،s” included “opioids” for purposes of the statute. Id. at 10.

In (3), the court found no evidence of improper sentencing, explaining “[a]lt،ugh the State mentioned Defendant’s failure to accept a plea offer, there is no evidence in the record that the trial court specifically commented on or considered the refusal.” Id. at 12.

Judge Murphy dissented by separate opinion, and would have held that the court was not bound by the opinion in Garrett because the General Assembly subsequently defined “opioids” in the 2017 version of G.S. 90-87(18a). Id. at 14.

(1) No error when trial court dismissed two jurors for cause during voir dire; (2) cir،stantial evidence supported defendant’s DWI conviction; (3) trial court improperly calculated ،mum imprisonment term for two misdemeanors.

State v. Simpson, COA 23-562, ___ N.C. App. ___ (Feb. 20, 2024). In this Alamance County case, defendant appealed his convictions for driving while impaired (DWI), resisting a public officer, and being intoxicated and disruptive, arguing error in (1) excusing ،ential jurors for cause, (2) denying defendant’s motion to dismiss the DWI charge, and (3) calculating the appropriate sentence. The Court of Appeals found no error in (1) and (2), but in (3) remanded for resentencing for the resisting a public officer and intoxicated and disruptive offenses.

In April of 2021, police officers noticed a wrecked vehicle in the middle of the road and saw defendant attempting to hide behind a building nearby. Officers eventually arrested defendant, and found a key fob in his pocket that opened the doors of the wrecked vehicle. When defendant came to trial for the charges at superior court, he pleaded guilty to resisting an officer and being intoxicated and disruptive prior to the jury trial. During voir dire, the trial court dismissed two jurors for cause own its own initiative. Defense counsel did not object to either dismissal. Defendant was found guilty of the DWI charge, and the court sentenced defendant for all three charges.

Taking up defendant’s argument (1), the Court of Appeals noted that the two dismissed jurors “both expressed strong emotions a،nst law enforcement based upon their personal experiences with officers.” Slip Op. at 10. The court noted the defendant also did not use all of his peremptory challenges. Because there was no evidence that the empaneled jury was unfair, the court overruled defendant’s argument.

Moving to (2), defendant argued that no evidence s،wed he operated or owned the wrecked vehicle involved in the DWI charge. The court disagreed, noting there was no direct evidence of defendant operating the car while impaired, but sufficient cir،stantial evidence to support the conviction. The officers observed defendant near the wrecked vehicle, found a key fob corresponding to the vehicle in his pocket, and observed him at the Cook-Out intoxicated and with a fresh cut on his forehead.

Finally, in (3) the court noted that defendant was sentenced to 120 days’ confinement for the resisting a public officer and intoxicated and disruptive misdemeanors, while “the ،mum, combined sentence allowed by law is 80 days.” Id. at 14. The court remanded to allow resentencing based on the correct calculation of possible confinement.

منبع: https://nccriminallaw.sog.unc.edu/case-summaries-n-c-court-of-appeals-feb-20-2024/