This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on April 2, 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.
Affidavits supporting search warrants were not conclusory; sentencing for first-degree kidnapping and underlying sexual offenses represented double jeopardy.
State v. Hernandez, COA23-832, ___ N.C. App. ___ (April 2, 2024). In this Dare County case, defendant appealed his convictions for statutory rape, statutory sex offense, indecent liberties, and kidnapping, arguing (1) plain error in denying his motion to suppress evidence, (2) ineffective assistance of counsel for failing to object to the introduction of that evidence, and (3) double jeopardy for entering judgment on first-degree kidnapping and the underlying sexual offense charges. The Court of Appeals found no merit in (1)-(2), but vacated and remanded for resentencing regarding (3).
In July of 2020, a law enforcement officer obtained a search warrant for defendant’s address after a thirteen-year-old girl reported that defendant took her from her parents’ home and raped her. After searching defendant’s home and seizing several digital storage devices, the officer obtained a second warrant in August of 2020 to access the contents of the devices. When reviewing the contents of the devices, the officer found videos of defendant engaging in sexual acts with two other minor girls. Defendant was subsequently indicted for offenses involving all three minor girls. Before trial, defendant moved to suppress the digital evidence, arguing seizure of the digital devices under the July warrant was overbroad, and the contents reviewed under the August warrant were fruit of the poisonous tree and not related to the crime being investigated. When the matter came to trial, the trial court eventually denied the motion to suppress, and defendant was convicted of all eight counts against him.
Regarding (1), defendant argued that the affidavits supporting the search warrants “failed to allege any nexus between the items sought and the crime being investigated.” Slip Op. at 10. The Court of Appeals explored the applicable precedent on conclusory affidavits, determining that “[d]espite its failure to establish an explicit connection between [the officer’s] training and experience and his belief in the existence of probable cause,” the July affidavit was not conclusory and permitted the magistrate to reasonably find probable cause for the search. Id. at 23. Moving to the August affidavit, the court reached the same conclusion, and noted that the August affidavit contained an additional attestation regarding the officer’s training and experience related to sex crimes.
Dismissing (2), the court explained that it had already established the adequacy of the affidavits and probable cause supporting the search warrants, and “[h]ad Defendant’s trial counsel objected to the introduction of the challenged evidence, the result of the proceeding would have been the same.” Id. at 28.
Arriving at (3), the court explained that “the trial court’s instructions here were such that Defendant could only have been convicted of first-degree kidnapping on the basis of one of the sexual offense charges for which he was also convicted and sentenced.” Id. at 31. Imposing sentences for the underlying sexual offense charges and the first-degree kidnapping charge represented double jeopardy, requiring remand to the trial court for resentencing to second-degree kidnapping or arresting judgment on the underlying sexual offense charges.
(1) Failure to raise constitutional objection to blood draw at trial waived right to appeal; (2) no Confrontation Clause issue where testifying expert assisted in lab analysis and reviewed results; (3) previous DWIs admitted as Rule 404(b) evidence did not fail Rule 403 balancing test.
State v. Taylor, COA23-423, ___ N.C. App. ___ (April 2, 2024). In this Columbus County case, defendant appealed her conviction for second-degree murder based on driving while impaired (DWI) and reckless driving, arguing error in (1) denying her motion to suppress the results of a blood sample, (2) admitting a lab report prepared by an expert who did not testify, and (3) admitting evidence under Rule of Evidence 404(b) of previous DWIs and bad driving. The Court of Appeals found no error.
In February of 2018, defendant caused a tractor-trailer to crash because she was driving very slowly in the right-hand lane of a highway. The driver of the tractor-trailer was killed when the cab caught fire after the accident. Several witnesses noted defendant’s slow responses and movements, and a State Highway Patrol trooper noticed cans of aerosol duster in her purse. The trooper took defendant to a hospital and she consented to a blood draw. Before trial defendant filed a motion to suppress the blood draw based on violations of G.S. 20-16.2, and a motion to limit Rule 404(b) evidence of prior DWIs and bad driving, but the trial court denied both motions. During the trial, the State offered two lab reports based on the blood sample, showing defendant had Difluoroethane (a substance from aerosol dusters), Xanax, and several other prescription drugs in her blood. Defense counsel objected to the lab reports on Sixth Amendment grounds as the testifying expert was not the scientist who authored the reports, but the trial court admitted them into evidence.
Reviewing (1), the Court of Appeals first noted that defendant’s objection to the blood sample at trial was based upon G.S. 20-16.2 (implied consent to chemical analysis), not on Fourth Amendment constitutional grounds. Here, the court pointed to State v. Davis, 364 N.C. 297 (2010), for the proposition that defendant’s failure to raise the constitutional issue by objection at trial resulted in her waiving the argument. Because defendant also did not renew the statutory argument on appeal, the court declined to address either issue.
Moving to (2), the court explained “this case is not one in which the expert witness testifying in court did not personally participate in the testing.” Slip Op. at 14. Instead, the expert witness called by the State had participated in the lab analysis even though she was not listed as the author of the report, and she had reviewed the results as if she had conducted the tests herself. The court held that defendant’s Confrontation Clause rights were not violated because “[a]s an expert with personal knowledge of the processes involved and personal participation in the testing, [the State’s expert] was the witness whom Defendant had a right to cross-examine, and she was indeed subject to cross-examination at trial.” Id. at 15.
Reaching (3), the court explained defendant’s argument rested upon the Rule 404(b) evidence failing the Rule of Evidence 403 balancing test, arguing the probative value did not outweigh the prejudicial nature of the evidence. The court noted each of the incidents were probative of malice and knowledge of the danger of defendant’s actions. When considering prejudice, the court explained that “[n]one of the prior incidents related to any particularly shocking or emotional facts that would have inflamed the jurors” and held the trial court properly denied defendant’s motion. Id. at 18.
(1) Defendant acted in concert with others for purpose of producing material showing sexual activity; (2) second-degree sexual exploitation of a minor is not a lesser included offense of first-degree sexual exploitation of a minor; (3) testimony from an officer mistakenly identifying elements of offense did not improperly instruct the jury; (4) trial court’s inadvertent misidentification of the charge did not confuse the jury.
State v. Walker, COA23-319, ___ N.C. App. ___ (April 2, 2024). In this New Hanover county case, defendant appealed his convictions for two counts of first-degree sexual exploitation of a minor, arguing error in (1) denying his motion to dismiss for insufficient evidence, (2) failing to instruct the jury on second-degree exploitation of a minor as a lesser-included offense, (3) allowing a detective to provide testimony regarding the elements of the charged offense, and (4) mistakenly identifying the charge as “sexual assault” one time during the jury instruction. The Court of Appeals found no error.
In 2018, defendant and a group of friends attended a Halloween party with the plan to find a girl and have sex with her while filming it. Several members of the group made recordings of defendant and others having sex with a minor girl from the party, and these videos were discovered by law enforcement during an unrelated traffic stop. Defendant filed a motion to dismiss the charges, but the trial court denied the motion, and defendant was subsequently convicted of both counts.
For (1), defendant argued that there was insufficient evidence that he engaged in the sex with a minor for the purpose of producing material showing their sexual activity, an essential element of the charges. The Court of Appeals explained that defendant was guilty of the offense because he acted in concert with others. Even if defendant was not the principal offender, the court concluded that “substantial evidence demonstrates [defendant] acted in concert with his friends by engaging in the sexual activity which they recorded with the knowledge they were recording it.” Slip Op. at 9.
Moving to (2), the court looked to the statutes creating the relevant offenses, noting that under G.S. 14-190.16(a)(1) “[t]he focus of first-degree sexual exploitation is the direct mistreatment of the minor or the production of material for sale or profit.” Id. at 13. This contrasted with G.S. 14-190.17(a)(1), where second-degree sexual exploitation criminalized the actions of those “involved in the production or after-the-fact distribution of such material,” without the requirement of producing material for sale or gain. Id. The court also pointed to State v. Fletcher, 370 N.C. 313 (2017), where the Supreme Court highlighted that the second-degree sexual exploitation did not involve directly facilitating the involvement of a minor victim. This led the court to conclude that second-degree exploitation of a minor was not a lesser-included offense.
In (3), defendant argued that the officer’s testimony instructed the jury that merely being filmed having sex constituted a violation of G.S. 14-190.16(a)(1), and this testimony confused the jury as to the statute’s requirement that defendant must have intent to produce material. The court disagreed, pointing out that the testimony was during cross-examination related to the questioning of one of the friends who attended the party, and the officer “simply answered why he did not feel compelled to question [one of the friends] regarding the filming of the sexual activity, and he gave a logical, albeit legally incorrect, response.” Id. at 16. The court determined this response made sense in context, and was not improperly instructing the jury as to the elements of the offense.
Arriving at (4), the court explained that the trial court’s mistaken statement that the offense was “sexual assault” only occurred once, during the instruction related to acting in concert. This was inadvertent, and the trial court provided the correct instruction on the elements of first-degree exploitation of a minor, as well as the correct charge when providing a second instruction on acting in concert where the trial court did not make the mistake. As a result, the court found no danger that the jury was confused as to the charge.