This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on August 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.
(1) State failed to admit sufficient evidence of premeditation and deliberation for first-degree murder conviction; (2) defendant was not entitled to stand-your-ground instruction because he was on neighbor’s property without explicit authorization to be there; (3) evidence of victim’s felony convictions were admissible for nonpropensity purposes.
State v. Hague, COA 23-734, ___ N.C. App. ___ (Aug. 20, 2024). In this Iredell County case, defendant appealed his conviction for first-degree murder, arguing error in (1) denying his motion to dismiss for insufficient evidence of premeditation and deliberation, (2) omitting stand-your-ground from the instruction on self-defense, and (3) excluding evidence of the victim’s previous felony convictions. The Court of Appeals majority found error in (1) and (3), vacating defendant’s conviction and remanding for a new trial.
In September of 2020, the victim and several other men were dove hunting in a field next to defendant’s land. The victim had permission from the landowner to hunt in the field, and had hunted here for several years, but as a convicted felon he could not legally possess a firearm. Defendant kept a horse rescue farm next to the field, and in 2017 a man hunting with the victim had shot one of defendant’s horses. After that incident, defendant asked the victim to be more cautious while hunting, and to avoid hunting near the fence line. On the morning of the incident, defendant heard shooting and went to confront the victim; defendant was carrying a pistol in his back pocket. After an argument, the victim shoved defendant to the ground. After that, testimony differed as to whether the victim charged defendant and defendant shot him in self-defense, or defendant shot the victim immediately. At trial, the State moved to exclude discussion of the victim’s prior felony convictions, and the trial court granted the motion. Defendant moved to dismiss, arguing lack of evidence showing premeditation or deliberation for the murder, but the motion was denied. Defendant also objected to the proposed jury instruction on self-defense, arguing it did not include an instruction on stand-your-ground law, but the trial court declined to change the instruction.
Taking up (1), the Court of Appeals first outlined the eight factors “which assist in the determination of whether premeditation and deliberation were present.” Slip Op. at 12. Here, defendant argued he “did not have a history of arguments, ill will, or serious animosity” towards the victim, and instead “was in fear for his life” as he thought the victim was reaching for a gun. Id. at 14. The court’s majority agreed with defendant that there was no evidence of arguments or ill will, and after reviewing the eight factors, concluded this case did not show premeditation and deliberation. The majority highlighted the age difference, as defendant was 72 years old and the victim was 46, and the conduct of defendant after the shooting, as he went home, unloaded his firearm, and called law enforcement to report the shooting.
Moving to (2), the court disagreed that a stand-your-ground instruction was justified, as defendant was not in a place where he had a lawful right to be, the field adjacent to his property. Defendant argued that “absent evidence that he was a trespasser, he had a lawful right to be in the field and there is no reason to assume he was there unlawfully.” Id. at 21. However, the court looked to G.S. 14-51.3 and caselaw interpreting it, determining that since defendant was on privately owned property, and he did not admit evidence that he had permission to be there, he had not established a lawful right to be there for stand-your-ground purposes. The court also noted that, even assuming the instruction was error, defendant could not demonstrate prejudice as the self-defense instruction required the jury to consider the “the proportionality between the degree of force and the surrounding circumstances” before convicting him of first-degree murder. Id. at 23.
Reaching (3), the court noted that the trial court excluded evidence of the victim’s convictions under Rule of Evidence 404(b) because defendant did not know the nature of the victim’s prior convictions. The majority opinion explained this was error, as the evidence was not being admitted to show the victim’s propensity for violence, but instead to show defendant’s state of mind and fear of being harmed. Applying State v. Jacobs, 363 N.C. 815 (2010), the majority held that “the evidence presented serves a nonpropensity purpose and such evidence should generally be admissible.” Id. at 27. After establishing the evidence was admissible, the majority determined that the error was prejudicial, as “[t]he excluded evidence would most certainly have provided the jury with insight into Defendant’s state of mind, which [was] essential to his claim of self-defense, and whether Defendant’s fear and degree of force was reasonable.” Id. at 28. The exclusion also required redaction of the 911 call and removed the context from testimony about the victim hunting illegally, which would have been relevant to the jury’s deliberation.
Judge Stading concurred in (2), but dissented from the majority’s opinion in (1) and (3), and would have held that sufficient evidence supported premeditation and deliberation and that it was not error to exclude the victim’s felony status. Id. at 32.
Not invited error when defense counsel participated in crafting jury instruction but did not affirmatively consent to exclusion of contested provision; limiting instruction for Rule 404(b) evidence not required when no party requests it; defendant’s course of conduct and actions towards victim supported stalking conviction.
State v. Plotz, COA 23-749, ___ N.C. App. ___ (Aug. 20, 2024). In this Forsyth County case, defendant appealed his conviction for misdemeanor stalking, arguing a host of issues related to the charging document and jury instructions, as well as ineffective assistance of counsel. The Court of Appeals found no error.
Over the course of 2020, defendant engaged in a series of harassing and intimidating behaviors towards his duplex neighbor, who was a 65-year-old black man. After an argument about yard waste, defendant placed a letter in the victim’s mailbox referencing Section 74-19 of the Winston-Salem ordinances, which requires residents to keep the streets and sidewalks free of vegetation. Defendant began putting milk jugs filled with water in his driveway, with letters written on them that spelled out racial and homophobic slurs. Late at night, defendant would rev up his truck’s engine with the taillights aimed at the victim’s bedroom window, and bang on the wall of the duplex which served as the victim’s bedroom wall. The victim eventually filed charges against defendant, leading to his conviction.
On appeal, defendant first argued error in failing to instruct the jury to the specific course of conduct, which allowed the jury to convict him of stalking under a theory of conduct not alleged in the charging instrument. This led the court to consider whether it was invited error, as defense counsel participated in the discussion of the jury instructions based on the pattern instruction for stalking. After reviewing the relevant caselaw, the court could not establish invited error here. Defense counsel participated in discussion around the jury instructions, but “the specific issue of instructing the jury that its conviction could only be based on the course of conduct alleged in the charging instrument did not arise during the charge conference.” Slip Op. at 14. The court explained that “when a provision is excluded from the instruction and the appealing party did not affirmatively consent to its exclusion but only consented to the instructions as given[,]” the party’s actions do not rise to invited error. Id. at 16. The court then moved to plain error review, finding defendant could not show prejudice as the evidence supported conviction based on the course of conduct alleged in the charging document, and different instructions would not have produced a different result.
Defendant also argued that admitting evidence of conduct not described in the charging document represented the admission of evidence under Rule of Evidence 404(b), and he argued this required a limiting instruction from the trial court. The court disagreed, explaining that defendant did not request a limiting instruction and “the trial court is not required to provide a limiting instruction when no party has requested one.” Id. at 21. Defendant then argued error in instructing the jury on theories of guilt under G.S. 14-277.3A that were not in the charging document, and here, in contrast to the issue above, the court found invited error because defendant “specifically and affirmatively consented to this construction of the charge.” Id. at 23. The court also pointed out that defendant could not demonstrate prejudice, as it was unlikely that the jury would find the defendant put the victim at fear of death or serious injury, but not of further harassment.
Defendant also argued ineffective assistance of counsel, pointing to the alleged errors discussed above. The court dispensed with this part of defendant’s argument by noting he could not establish the prejudice necessary to prevail on an ineffective assistance claim. Assuming counsel had objected to the various issues above, the court determined that the same guilty outcome was likely for defendant. Finally, the court considered defendant’s argument that the evidence was insufficient to support a conviction, determining that evidence of defendant’s “course of conduct . . . combined with evidence of his other actions towards [the victim]” supported the jury’s verdict.
Indictment contained essential elements of G.S. 14-120 and was facially valid; out-of-court photographic identification did not violate EIRA because it was not intended to identify defendant as the perpetrator.
State v. Simpson, COA23-618, ___ N.C. App. ___ (Aug. 20, 2024). In this New Hanover County case, defendant appealed her convictions for felony forgery of endorsement and felony uttering a forged endorsement, arguing error in (1) denying her motion to dismiss the uttering a forged instrument charge due to a flawed indictment, and (2) admitting an out-of-court identification based on a photograph in violation of the Eyewitness Identification Reform Act (EIRA), or in the alternative, (3) ineffective assistance of counsel. The Court of Appeals found no error and no ineffective assistance of counsel, but remanded to correct the judgment’s clerical error of a guilty verdict as opposed to a guilty plea.
On February 7, 2019, defendant was assigned as a home care assistant for the victim’s husband, who had dementia. On that day, the victim went out to run errands while defendant was at home with her husband. The following day, the victim noted two checks were missing, and reported this to defendant’s employer, as well as to her bank. In August of 2019, the victim received a notice regarding one of the checks she had reported stolen; Wilmington police later determined the check was made out to one of defendant’s aliases.
Beginning with (1), the Court explained that defendant’s argument was “that the indictment fails to allege the facts and elements of the crime of felony uttering a forged endorsement with sufficient precision, leaving her without notice of the offense being charged and unable to prepare a defense.” Slip Op. at 6. This was a nonjurisdictional defect under recent North Carolina Supreme Court precedent, so defendant had to show a statutory or constitutional defect that prejudiced her defense to prevail. The court did not see any such statutory or constitutional issue after examining the elements of the offense and the indictment, concluding “Count III of the indictment is facially valid, having sufficiently alleged each essential element of [G.S.] 14-120.” Id. at 8.
Moving to (2), the court first explained that “the EIRA bans photographic show-ups; however, not all out-of-court identifications are show-ups as defined in and subject to the EIRA.” Id. at 9 (cleaned up). Here, the victim identified defendant in an out-of-court photograph, but this identification was after the victim had already identified defendant as a possible perpetrator to the police. Since the identification was not intended to identify defendant as the perpetrator, “the EIRA [was] inapplicable here.” Id. at 13. The court also determined that the identification did not violate defendant’s due process rights, declining to invoke Rule of Appellate Procedure 2 to consider her argument.
Because the court did not establish any error in (2), the court likewise found no ineffective assistance of counsel for (3). Even though defense counsel failed to move to suppress the out-of-court identification on EIRA and due process grounds (although counsel did object to testimony on EIRA grounds), based on the analysis above, these arguments lacked merit.