Case Summaries – N.C. Court of Appeals (11/5/2019)

This post summarizes opinions issued by the Court of Appeals of North Carolina on November 5, 2019.

The State gave a sufficient factual basis for the defendant’s guilty plea.

State v. Alston, ___ N.C. App. ___, ___ S.E.2d ___ (Nov. 5, 2019). The defendant pled guilty to felony serious injury by vehicle based on a single vehicle accident. The State presented a factual basis for the plea indicating that the defendant’s girlfriend’s infant child was injured and that an analysis of the defendant’s blood showed the presence of Alprazolam and Benzodiazepine. The court of appeals granted the defendant’s petition for writ of certiorari but rejected his argument that the factual basis for the plea was insufficient under G.S. 15A-1022(c). The court concluded that the information was sufficient despite not including information about the timing of the defendant’s impairment or the seriousness of the infant’s injuries, because those elements could reasonably be inferred from the other information the State provided. A dissenting judge would have denied the defendant’s petition for writ of certiorari and granted the State’s motion to dismiss the appeal.

 

The trial court applied the incorrect legal standard when sentencing a 17-year-old defendant to life without parole to the extent that it focused on the offense and the manner in which it was committed instead of the defendant’s potential for rehabilitation.

State v. Ames, ___ N.C. App. ___, ___ S.E.2d ___ (Nov. 5, 2019). The defendant, 17 years old at the time of his crime, was charged with first-degree murder based on his role in a murder committed by one of his acquaintances during a robbery. Trial testimony indicated that the defendant orchestrated the killing. He was convicted by a jury of first-degree murder. At sentencing, the trial judge reviewed mitigating circumstances as required by G.S. 15A-1340.19B(c) to decide whether to impose a sentence of life without parole or life with the possibility of parole after 25 years. Among other findings, the trial court found no evidence of particular immaturity, no evidence of mental illness, and “no evidence . . . that the defendant would benefit from rehabilitation and confinement other than that of other . . . persons who may be incarcerated for . . . first degree murder.” The trial court concluded that any mitigating factors were “outweighed by other evidence in this case of the offense and the manner in which it was committed” and sentenced the defendant to life without parole. The court of appeals vacated the sentence, concluding that the trial court applied an incorrect legal standard by focusing on the nature of the offense and not whether the defendant was, within the meaning of Miller v. Alabama, 567 U.S. 460 (2012), “the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified.” The trial court also erred by comparing the young defendant to the broader class of all persons who may be incarcerated for first-degree murder, including adults. The court of appeals remanded the case to the trial court for resentencing consistent with its opinion, emphasizing that the mitigation evidence put on by the defendant (including his youth, his violent home environment, his potential for rehabilitation) “seemingly implicated every factor Miller identified as counseling against sentencing a juvenile to life without the possibility of parole.” Slip op. at 24 (emphasis in original). A dissenting judge would have affirmed the sentence of life without parole.

 

(1) The trial court did not err by failing to give a defense of habitation instruction when the defendant neither requested the instruction nor objected to its omission at trial. (2) Plain error review is waived where the defendant invited the error.

State v. Coburn, ___ N.C. App. ___, ___ S.E.2d ___ (Nov. 5, 2019). The defendant was convicted by a jury of assault with a deadly weapon inflicting serious injury based on an altercation involving the owner of the house at which he had been living. On appeal, the defendant argued that the trial court erred by not instructing the jury on defense of habitation. Though that defense had been discussed throughout the trial—from a pretrial motion to the charge conference, and during a lunchtime recess in chambers—the defendant never requested an instruction on defense of habitation under G.S. 14-52.2. (1) On appeal, the defendant argued that the judge erred by failing to instruct the jury on defense of habitation despite his failure to request it, and that the issue was preserved because, in light of the in-chambers discussion on possible jury instructions, the charge conference was not recorded in its entirety as required by G.S. 15A-1231. The court of appeals noted that the better practice is to record the entire charge conference, but it ultimately rejected the defendant’s argument that a failure to do so entitled the defendant to raise any issue related to the instructions on appeal, even those not requested or objected to. Under G.S. 15A-1231(b), failures to comply with the statute do not constitute grounds for appeal unless the defendant is “materially prejudiced.” Here, where the trial court specifically stated its intention to get everything “firmly on the record” after the recess discussion and twice mentioned the possibility of giving the defense of habitation instruction, and where the defendant neither requested the instruction nor objected to the court’s failure to give it, the defendant was not materially prejudiced by the failure to record the entire charge conference. (2) The court of appeals concluded that plain error review was waived because the defendant invited any error through his failure to request the instruction or object to its omission after it had been discussed so extensively.

 

The trial court’s findings supported its conclusion that the defendant was a danger to the community and should thus be required to register as a sex offender for secret peeping.

State v. Fuller, ___ N.C. App. ___, ___ S.E.2d ___ (Nov. 5, 2019). Using a hidden camera built into a phone charger, the defendant made secret recordings of the woman in whose house he lived. He pled guilty to secret peeping under G.S. 14-202, but challenged the trial court’s finding that he was a “danger to the community” and had to register as a sex offender under G.S. 14-202(l). The trial court made its determination based on findings that the defendant: (1) made recordings over a long period of time (more than two months); (2) used sophisticated technology; (3) invaded the victim’s private space (her bathroom and bedroom) on multiple occasions to move the camera between them; (4) stored his recordings; and (5) could easily repeat the crime because the recording devices were cheap and easily obtainable. A divided court of appeals affirmed, concluding that the trial court’s findings supported its determination that the defendant was a person who “posed a risk of engaging in sex offenses following release from incarceration or commitment”—the standard for “danger to the community” articulated in State v. Pell, 211 N.C. App. 376 (2011). The court of appeals distinguished this case from Pell, noting that the crime here was more sophisticated and took advantage of a position of trust, and that unlike in Pell there was no indication here that the underlying cause of the defendant’s behavior was in remission or that he was moving in the right direction. A concurring judge would have affirmed the trial court under a less demanding abuse-of-discretion standard. A dissenting judge would have reversed based on the trial court’s focus on defendant’s past offenses and the lack of evidence of the likelihood of recidivism.

 

(1) The defendant could not directly appeal the trial court’s denial of a motion to suppress when he failed to give notice of his intent to do so before plea negotiations were finalized. (2) Binding precedent from earlier panels compelled the court to deny the defendant’s petition for writ of certiorari.

State v. Killette, ___ N.C. App. ___, ___ S.E.2d ___ (Nov. 5, 2019). The defendant pled guilty to two counts of manufacturing methamphetamine after the trial court denied his motion to suppress items seized during a search. The case came back before the court of appeals on remand from the supreme court for reconsideration in light of State v. Ledbetter, ___ N.C. ___, 814 S.E.2 39 (2018), and State v. Stubbs, 368 N.C. 40 (2015). (1) The court of appeals dismissed the defendant’s direct appeal because the defendant failed to provide notice to the State of his intent to do so before plea negotiations were finalized as required under State v. Tew, 326 N.C. 732 (1990). (2) The court of appeals denied the defendant’s petition for writ of certiorari, rejecting his contention that it should be granted under State v. Davis, 237 N.C. App. 22 (2014). Davis, the court of appeals concluded, failed to address prior binding court of appeals authority. As a result, the court deemed itself obliged to follow the supreme court’s guidance in State v. Jones, 358 N.C. 473 (2004), that when faced with inconsistent opinions from separate panels, a subsequent panel of the court of appeals must follow the earlier opinion. Following that rule, the court concluded that earlier decisions (including State v. Pimental, 153 N.C. App. 69 (2002) (holding that the court of appeals cannot grant a writ of certiorari when a defendant pleads guilty without first notifying the State of his or her intent to appeal a suppression, because that is not a “failure to take timely action” within the meaning of Appellate Rule 21) compelled it to deny the writ. The court viewed Ledbetter and Stubbs as clarifying the court of appeals’ jurisdiction to hear petitions for writ of certiorari, but not as relieving the court of its obligation to follow binding substantive precedent. A concurring judge would have denied the defendant’s petition for certiorari, but as a matter of discretion, and not pursuant to prior court of appeals cases that the judge did not view as binding after Ledbetter and Stubbs.

 

(1) An expert witness did not offer a conclusive diagnosis of sexual abuse based on the victim’s statement alone, and therefore did not impermissibly vouch for the victim’s credibility. (2) The trial court did not err by excluding testimony that was speculative and not within the witnesses’ personal knowledge. (3) The trial court did not commit plain error by failing to give a limiting instruction as to a witness’s statistical testimony.

State v. Peralta, ___ N.C. App. ___, ___ S.E.2d ___ (Nov. 5, 2019). The defendant was convicted by a jury of seven sex crimes against a five-year-old victim, including statutory rape of a child by an adult, statutory sexual offense with a child by an adult, and indecent liberties with a child. At trial, the State presented a nurse practitioner who testified about the medical evaluation given to the victim. The nurse practitioner testified without objection that the victim gave “clear and concise statement[s] regarding child sexual abuse,” and that her own testimony was “based off a complete medical evaluation, not only [the victim’s] statements.” (1) On appeal, the defendant argued that the trial court committed plain error by impermissibly allowing the nurse practitioner to testify to the truth of the victim’s statements to the extent that she offered a conclusive diagnosis without physical evidence. The court rejected the argument, noting first that the witness never actually offered a conclusive diagnosis. To the contrary, she gave testimony relevant to helping the jury understand that a lack of physical evidence in a medical exam did not preclude sexual abuse. Moreover, any error related to the nurse practitioner’s detailed testimony about sexual abuse, including penetration, was deliberately elicited by the defendant on cross-examination. Regardless, the defendant did not demonstrate that the jury would have reached a different result in light of all the other unchallenged evidence. (2) The defendant also argued that the trial judge erred by excluding the testimony from two defense witnesses who allegedly asked the victim’s mother to stop talking about sex in front of children. The court of appeals disagreed, concluding that the proffered testimony—that the victim may have learned explicit language about sexual abuse from her mother and not from her personal experience with abuse—was too speculative and not within the witnesses’ personal knowledge. (3) Finally, the trial court did not err by failing to give a limiting instruction indicating that the nurse practitioner’s statistical testimony could be considered only for corroborative purposes. Reviewing the argument for plain error, the court concluded that the nurse practitioner’s testimony was proper, and that any error would not be prejudicial in any event in light of the collective evidence of guilt.

 

(1) Any hearsay error related to the admission of the defendant’s jail phone conversation was harmless due to the overwhelming evidence of the defendant’s guilt. (2) Statements by the woman the defendant spoke to on the jail phone were not testimonial despite automated warnings that they were being recorded. (3) Any evidentiary error related to the admission of video of the defendant’s interview with the police was harmless due to the overwhelming evidence of the defendant’s guilt. (4) The defendant’s second-degree murder conviction was properly sentenced as a Class B1 felony when there was no evidence or instruction related to depraved-heart malice. (5) The defendant properly stipulated to the offense classification of his prior public disturbance conviction for prior record level purposes.

State v. Roberts, ___ N.C. App. ___, ___ S.E.2d ___ (Nov. 5, 2019). The defendant fired a gun from his car toward a park where over a dozen people were playing basketball and hanging out. He was later found asleep in his car in a ditch by a Highway Patrol officer, who arrested him for driving while impaired. He was convicted by a jury of second-degree murder and assault with a deadly weapon. The defendant argued that the trial court erred by admitting three phone calls the defendant made from the jail because they contained hearsay and violated the defendant’s confrontation rights. (1) As to the hearsay argument, the court of appeals concluded that any error was harmless in light of the overwhelming evidence of the defendant’s guilt. (2) As to the alleged violation of the Confrontation Clause, the court adopted the reasoning of a case from the Fourth Circuit, United States v. Jones, 716 F.3d 851 (4th Cir. 2013), and concluded that, despite automated warnings indicating that the calls were being recorded and monitored, the statements made by the woman the defendant was talking to on the jail phone were not intended to bear witness against him, and were therefore not testimonial. Because the statements were not testimonial, their admission did not violate the Confrontation Clause. (3) Next, the court declined to consider whether the trial court committed plain error by admitting, without objection, video interviews in which the defendant discussed prior assault and rape charges with the police. Again, in light of the overwhelming evidence of the defendant’s guilt, the defendant failed to show how the admission of the evidence resulted in a miscarriage of justice or an unfair trial. (4) At sentencing, the trial court did not err by sentencing the defendant as a Class B1 felon upon jury’s general verdict of guilty of second-degree murder when no evidence or jury instruction supported the depraved-heart malice that makes the crime a Class B2 felony. As in State v. Lail, 251 N.C. App. 463 (2017), it was readily apparent from the evidence here that the jury found the defendant guilty of a Class B1 second-degree murder. (5) Finally, the court of appeals rejected the defendant’s argument that his stipulation to a prior conviction identified as “M-PUBLIC DISTURBANCE” as a Class 1 misdemeanor was ambiguous in light of the multiple potential classifications of disorderly conduct. To the contrary, under State v. Arrington, 371 N.C. 518 (2018), when a defendant stipulates to a prior conviction of a particular offense classification, he or she also stipulates to the facts underlying that conviction. The trial court has no duty to enquire further in the absence of clear record evidence suggesting the defendant stipulated to an incorrect classification, and there was no such evidence here.

 

(1) An indictment charging assault inflicting serious bodily injury was not defective for alleging specific injuries that would not, on their own, qualify as serious bodily injury. (2) The victim’s injuries resulted in a protracted loss or impairment and therefore sufficed as a serious bodily injury. (3) The defendant waived appellate review of the trial court’s failure to instruct the jury on a lesser-included assault.

State v. Rushing, ___ N.C. App. ___, ___ S.E.2d ___ (Nov. 5, 2019). The defendant was convicted by a jury of assault inflicting serious bodily injury and assault on a female based on an argument and fight with the mother of his child. He pushed her down, threw her head into the concrete, punched her, dragged her, and flung her onto the hood of a car. Among other injuries she had two concussions and a fractured eye socket that rendered her temporarily blind in one eye for two weeks. (1) The defendant argued on appeal that the indictment failed to allege the crime of assault inflicting serious bodily injury in that it alleged injuries that would be no more than misdemeanor assault inflicting serious injury, namely, “several lacerations to the face resulting in stitches and a hematoma to the back of the head.” The court of appeals disagreed, holding that the additional description of the victim’s injuries in the indictment was irrelevant as to its validity, and may be regarded as incidental to the salient statutory language, which was present. (2) The injury to the victim’s eye met the statutory definition of “serious bodily injury” in G.S. 14-32.4(a) in that the defendant was completely blind in her left eye for one week and her vision was not fully restored for two full weeks after the assault. She could not drive for one week and was not able to return to work until her vision was completely restored. A reasonable juror thus could have concluded that the injury resulted in a “protracted loss or impairment of the function of a bodily member or organ,” and that it therefore qualified as a serious bodily injury. (3) Finally, the court declined to consider the defendant’s argument on appeal that the trial court should have instructed the jury on misdemeanor assault inflicting serious injury. The defendant never objected to the instructions at trial and failed to argue plain error on appeal. Therefore, he waived the issue on appeal. A judge dissenting in part would have found the evidence here insufficient to qualify as a “protracted loss or impairment” when the victim fully recovered in in two weeks.

 

There is no statutory appeal from district court to superior court of a revocation of probation imposed pursuant to a deferred prosecution.

State v. Summers, ___ N.C. App. ___, ___ S.E.2d ___ (Nov. 5, 2019). The defendant was placed on probation in district court pursuant to a formal deferred prosecution agreement under G.S. 15A-1341(a1). A district court judge found him in violation and revoked his deferred prosecution probation. The defendant appealed to superior court for a de novo violation hearing, but a superior court judge dismissed the appeal for lack of jurisdiction. The court of appeals affirmed the dismissal, concluding that there is no statutory right to appeal a revocation of probation in the deferred prosecution context, as that revocation does not “activate[] a sentence” within the meaning of G.S. 15A-1347(a). The court noted that the superior court could, in some cases, review district court revocations of deferred prosecution probation through its authority to issue writs of certiorari under Rule 19 of the General Rules of Practice for the Superior and District Courts.

 

(1) The court of appeals lacked jurisdiction to hear an appeal of a satellite-based monitoring order in the absence of a written notice of appeal, and it declined to grant review through writ of certiorari. (2) An expert pediatrician’s comment about the consistency of the victim’s story was not impermissible vouching. (3) Witnesses’ use of the words “disclose” and “disclosure” to describe what the victim told them was not impermissible vouching. (4) The trial court did not commit plain error by admitting a therapist’s testimony that she believed the victim. (5) The defendant did not receive ineffective assistance of counsel where he was not prejudiced by his lawyer’s failure to object to improper testimony.

State v. Worley, ___ N.C. App. ___, ___ S.E.2d ___ (Nov. 5, 2019). The defendant was convicted by a jury of two counts of statutory sexual offense with a child by an adult and one count of first-degree kidnapping based on his repeated sexual assaults of his seven-year-old niece. The trial court sentenced the defendant to prison and ordered him to enroll in satellite-based monitoring (SBM) for life. (1) Based on the defendant’s failure to file a written notice of appeal as required by Rule 3 of the Rules of Appellate Procedure, the court of appeals concluded that it lacked jurisdiction to hear his SBM appeal. The defendant also failed to argue in the trial court that SBM was an unconstitutional search under the Fourth Amendment. The court of appeals declined grant his petition for writ of certiorari and, in the absence of evidence of a manifest injustice, to invoke Appellate Rule 2 to address his unpreserved constitutional argument. (2) A pediatrician that the State tendered as an expert testified without objection that children don’t tend to make up stories about sexual abuse, and that the victim “gave excellent detail” and that her story was “very consistent.” The court of appeals found no error, noting that while it would be improper for an expert witness to opine based on an interview with a victim as to whether the child had been sexually abused, statements regarding the child’s consistency in recounting the alleged abuse are nevertheless admissible. (3) The court rejected the defendant’s argument that witnesses’ repeated use of the words “disclose” and “disclosure” to describe what the victim told them in private amounted to impermissible vouching. Citing State v. Betts, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019), and declining to follow unpublished State v. Jamison, ___ N.C. App. ___, 821 S.E.2d 665 (2018) (unpublished), the court agreed that nothing about the term “disclose” conveys believability or credibility. (4) Some statements admitted by a marriage and family therapist who treated the victim were improper vouching. Her general statement about “this incident that happened” was not improper, but her statement that the victim would need therapy “because of the sexual abuse that she experienced” and “I believe [the victim]” were improper as an opinion of the victim’s veracity. However, in the absence of an objection at trial and in light of the substantial evidence against the defendant (medical evidence and testimony from corroborating witnesses), the court concluded that the admission of the improper evidence did not rise to the level of plain error warranting a new trial. (5) Finally, defense counsel’s failure to object to the improper vouching evidence was not ineffective assistance of counsel where there was no reasonable probability that the errors prejudiced the defendant.