Case Summaries – N.C. Court of Appeals (August 18, 2020)

This post summarizes opinions issued by the North Carolina Court of Appeals on August 18, 2020.

The trial court’s inquiry of the defendant regarding her waiver of counsel satisfied the requirements of G.S. 15A-1242 and the pro se defendant’s failure to comply with Rule 4 of the Rules of Appellate Procedure did not warrant dismissal of her appeal

State v. Jenkins, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 18, 2020).  In this case involving a waiver of counsel at a probation revocation hearing and the defendant’s appeal of the trial court’s revocation of her probation, the court declined to dismiss the appeal due to the defendant’s failure to comply with Rule 4 of the Rules of Appellate Procedure and held that the defendant’s waiver of counsel was knowing, intelligent, and voluntary.  The defendant timely filed a handwritten notice of appeal that failed to comply with Rule 4 in that it did not indicate that it had been served on the State.  Noting that the State was informed of the appeal and was able to timely respond, and that the violation had not frustrated the adversarial process, the court held that the nonjurisdicitional Rule 4 defect was neither substantial nor gross and proceeded to the merits.  As to the merits, the court found that the trial court’s inquiry of the defendant regarding her waiver of counsel, a waiver which the defendant also executed in writing, was similar to that in State v. Whitfield, 170 N.C. App 618 (2005) and satisfied the requirements of G.S. 15A-1242.

 

A pretrial detainee subject to an ICE detainer who was held in custody until he was picked up by federal authorities and deported was not “released” from custody within the meaning of the bail statutes and the trial court therefore had no authority to enter a bail bond forfeiture based on the defendant’s failure to appear at trial

State v. Lemus, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 18, 2020).  The trial court had no statutory authority to enter a bail bond forfeiture where the defendant was not “released” from custody within the meaning of Article 26 of G.S. Chapter 15A because he was subject to an ICE detainer, was picked up by federal agents, and was deported to Mexico.  In 2018, the defendant was charged with a felony and a $100,000 secured bond was set as a condition of his pretrial release.  The defendant and his surety posted the bond, but the defendant was not released.  Instead, he was held for about 24 hours until ICE agents took him into custody directly from deputies from the Granville County Sheriff’s Office and eventually deported him.  Because he had been deported, the defendant failed to appear at trial and, consequently, the trial court entered a bond forfeiture order.  The surety filed a petition for remission of forfeiture under the “extraordinary circumstances” provision of G.S. 15A-544.8(b)(2).  The trial court denied the petition and the court of appeals reversed.  Saying that the case was one of first impression, the court conducted plain-language statutory interpretation and summarized that analysis as follows:

The bond forfeiture statutes apply only to “a defendant who was released” under those statutes. Lemus was never released. Therefore, the trial court had no authority to conduct a forfeiture proceeding and should have granted the petition to set aside the forfeiture for that reason.

The court went on to reject various procedural and policy arguments advanced by the school board as to why the forfeiture was properly ordered.

 

There was uncertainty in the record as to which of two studies the trial court relied upon when ordering SBM and the Court of Appeals remanded for clarification of that issue

State v. Lindquist, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 18, 2020).  In this case involving rape and other sex crimes where the defendant was ordered to enroll in lifetime SBM, the Court of Appeals vacated the order imposing SBM because of uncertainty surrounding the evidentiary basis of the trial court’s decision.  As to the issue of efficacy of SBM, at the SBM hearing a DPS employee testified regarding a 2015 California study of GPS monitoring of sex offenders and that study was introduced into evidence.  However, the trial court’s order imposing SBM referred to a 2012 California study of GPS monitoring of sex offenders.  The Court of Appeals vacated the order and remanded for clarification as to which California study the trial court relied upon.

 

In possession of a controlled substance on jail premises cases, the State is not required to prove unlawful possession as an element of the offense

State v. Palmer, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 18, 2020).  In this possession of a controlled substance on jail premises case involving Oxycodone, the trial court did not err by refusing to instruct the jury that an element of the offense is that the controlled substance be possessed unlawfully.  The court explained that a plain reading of the relevant statutes does not require the State to prove unlawful possession of a controlled substance as an element of the offense.  Instead, lawful possession is a defense that the defendant carries the burden of proving.

 

The trial court erred by denying the defendant’s motion to dismiss a charge of willfully violating a DVPO and instructing the jury on felonious breaking and entering in violation of a valid DVPO where there was no direct or circumstantial evidence that the defendant knew of the DVPO

State v. Tucker, ___ N.C. App. __, ___ S.E.2d ___ (Aug. 18, 2020).  Because there was insufficient evidence that the defendant knew of the terms of a domestic violence protective order, the trial court erred by denying the defendant’s motion to dismiss a charge of violating a civil DVPO while in possession of a deadly weapon and the trial court erred by instructing the jury on breaking and entering in violation of a protective order.   After being arrested for assaulting the victim, the defendant was served with an ex parte DVPO and notice of a hearing regarding whether another DVPO would be entered.  The defendant did not attend that hearing and, at the time of the incident giving rise to the charges at issue, had not been served with a year-long DVPO that was entered at the hearing in his absence.  As there was no direct evidence that the defendant had actual or constructive knowledge of the DVPO that was entered at the hearing he did not attend, the trial court erred by denying his motion to dismiss the charge of willfully violating the order.  Further, because the defendant did not have knowledge of the DVPO, it was plain error for the trial court to instruct the jury on felony breaking and entering in violation of a valid DVPO.

Judge Murphy concurred in part and in the judgment but dissented from the majority’s discussion of two unpublished cases and also would have sanctioned the State for certain misleading comments included in its brief.

 

In a felonious larceny and possession of stolen property case, there was sufficient evidence of the value of the stolen goods, the trial court did not err in its jury instructions on larceny, and the trial court did err by sentencing the defendant on both larceny and possession of the goods stolen during the larceny

State v. Wright, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 18, 2020).  In this larceny and possession of stolen property case, (1) the trial court did not err by denying the defendant’s motion to dismiss where there was sufficient evidence of the value of the stolen goods; (2) the trial court did not err in jury instructions on felonious larceny; and (3) the trial court erred by sentencing the defendant on both felonious larceny and felonious possession of the goods stolen during the larceny.

(1) At trial, a witness testified that the value of a stolen propane tank, which was the basis for both the charges of felonious larceny and felonious possession of stolen goods, was “roughly $1,330.”  In moving to dismiss, the defendant argued that removing the cost of two regulators and the amount of propane necessary to fill the tank, items which there was some testimony about, dropped the value of the tank below the $1,000 threshold for the felony versions of the offenses.  The court rejected this argument, largely because of precedent establishing that the State is merely required to present some competent evidence of the fair market value of stolen property, which the jury may then consider.  The witness’s testimony of the roughly $1,330 value of the tank was sufficient on this issue and the trial court did not err by denying the defendant’s motion to dismiss.

(2) The court rejected the defendant’s argument that the trial court committed plain error by instructing the jury with respect to larceny that the defendant carried away “another person’s property” instead of “a propane tank,” an instruction taken verbatim from the relevant pattern jury instruction and which the defendant characterized as permitting the jury to find him guilty of felonious larceny based on the value of additional items not included in the indictment.  Noting that “the better practice may have been to designate the specific property taken,” the court found no reason to assume that the jury based its verdict on any consideration other than the value of the tank alone and concluded that the trial court did not err.

(3) The State conceded and the court agreed that the trial court erred in sentencing the defendant for both larceny and possession of the property stolen during the larceny.

Judge Collins concurred, writing separately to add additional analysis on the jury instruction issue.  Judge Murphy concurred in part and dissented in part, expressing the view that the State’s evidence of the value of the propane tank was insufficient because the testimony concerning valuation was in reference to the combined value of the propane tank, the unknown quantity of propane it contained, and associated regulators.