This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on April 18, 2023. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Trial court improperly considered an element of child abuse offense as an aggravating factor for the offense; jury did not make specific finding regarding the date of abuse, so conviction was ambiguous due to change in classification; court could not consider ineffective assistance of counsel claim without evidentiary hearing on strategic decisions.
State v. Demick, COA22-415, ___ N.C. App. ___ (April 18, 2023). In this Haywood County case, defendant appealed his convictions for multiple felony and misdemeanor child abuse offenses, arguing a range of issues related to sentencing and errors by the trial court, as well as possible ineffective assistance of counsel. The Court of Appeals agreed with defendant’s sentencing arguments and remanded for resentencing, but found no prejudicial or plain error. The court dismissed defendant’s ineffective assistance of counsel claim without prejudice to allow him to file a motion for appropriate relief with the trial court.
Defendant came to trial in October of 2017 for abusing the children of his wife over the course of several years. Abuse included paddling one child victim so hard she suffered permanent injuries and required medical treatment. At trial, the jury found defendant guilty of all charges against him except for rape, and also found an aggravating factor that defendant took advantage of a position of trust or confidence. The trial court sentenced defendant to higher classifications of intentional child abuse inflicting serious bodily injury (“ICAISBI”) and intentional child abuse inflicting serious physical injury (“ICAISPI”) due to the aggravating factor.
The Court of Appeals first identified defendant’s meritorious issues, explaining that under applicable law, the evidence necessary to prove an element of the offense cannot be used as an aggravating factor. Here, “both misdemeanor and felony child abuse require showing the defendant is a ‘parent . . . or . . . other person providing care to or supervision of [a] child,’” meaning the aggravating factor could not be applied to defendant. Slip Op. at 10, quoting GS §§ 14-318.2 & -318.4. The state conceded this error, and the court remanded all convictions for resentencing.
The court next considered defendant’s argument that his ICAISPI and ICAISBI convictions were ambiguous due to a change in the felony classifications on December 1, 2013. Because the abuse in question occurred between January 2009 and March 2014, and the jury did not perform a specific finding of the date of the offenses, the court found that the verdict was ambiguous. Noting that this seemed to be a matter of first impression, the court explained:
[W]e have not found, and the parties have not provided, a published case resolving whether a general verdict is rendered ambiguous by evidence showing the completed offense may have been committed on either temporal side of a statutory reclassification of the crime. . . . [W]e hold that the general verdict is ambiguous under these circumstances and a defendant, absent a determination by the jury by special verdict form as to the specific date of or date range of offense sufficient to determine which sentencing regime is applicable, must be sentenced under whichever statutory classification is lower.
Id. at 12. The court remanded for resentencing the ICAISPI and ICAISBI offenses at their lower pre-elevation levels because the court could not engage in speculation about which dates supported the jury’s decision to convict defendant.
The court did not find merit in defendant’s argument that the scarring one victim suffered from paddling could not support a finding of serious bodily injury. Instead, the court drew a distinction between cases with “superficial” or “aesthetic” injuries with the more serious, permanent injuries suffered by the victim in this matter. Likewise, the court rejected defendant’s argument that the jury verdict sheet for ICAISBI represented error, as it asked the jury to determine if defendant was guilty of “inflicting permanent scarring to the buttocks and/or legs” of the victim. Id. at 23. The court explained that the indictment and jury instructions given by the trial court adequately explained all elements of the offense.
The court also rejected defendant’s arguments regarding lesser included offenses. The court considered and rejected defendant’s argument regarding lawful corporal punishment, explaining that overwhelming evidence showed the acts were not within the bounds of lawful punishment. Finally, the court rejected defendant’s argument the trial court erred by preventing the disclosure of juvenile records.
For defendant’s ineffective assistance of counsel claim, the court explained that the record was insufficient to determine whether defense counsel made certain strategic decisions, and “[w]hen the record is silent on that question of fact—as in this case—the appropriate action is to allow an evidentiary hearing by MAR.” Id. at 35.
Motion to suppress was improperly granted where (1) police had reasonable suspicion for Terry frisk, (2) subsequent “plain view” doctrine seizure was lawful, (3) protective sweep of house was justified by circumstances, and (4) smell of marijuana was not only basis for probable cause to support search warrant for house.
State v. Johnson, COA22-363, ___ N.C. App. ___ (April 18, 2023). In this Vance County case, the state appealed from an order granting defendant’s motion to suppress evidence seized from his person and inside a house. The Court of Appeals reversed and remanded the matter to the trial court.
While attempting to arrest defendant for an outstanding warrant, officers of the Henderson Police Department noticed the odor of marijuana coming from inside the house where defendant and others were located. All of the individuals were known to be members of a criminal gang. After frisking defendant, an officer noticed baggies of heroin in his open coat pocket. The officers also performed a protective sweep of the residence, observing digital scales and other drug paraphernalia inside. After a search of defendant due to the baggies observed in plain view during the frisk, officers found heroin and marijuana on his person, along with almost $2,000 in fives, tens and twenties. After receiving a search warrant for the house, the officers found heroin, marijuana, drug paraphernalia, and firearms inside. Defendant was indicted on drug possession, criminal enterprise, and possession of firearm by a felon charges. Before trial, the trial court granted defendant’s motion to suppress, finding that there was no probable cause to detain defendant or to enter the residence.
The Court of Appeals first established the basis for detaining and frisking defendant, explaining that officers had a “reasonable suspicion” for frisking defendant under Terry v. Ohio, 392 U.S. 1 (1968), as they had a valid arrest warrant for defendant for a crime involving a weapon, knew he was a member of a gang, and saw another individual leave the house wearing a ballistic vest. Slip Op. at 14. Applying the “plain view” doctrine as articulated in State v. Tripp, 381 N.C. 617 (2022), and State v. Grice, 367 N.C. 753 (2015), the court found that the search was constitutional and the arresting officer’s eventual seizure of the “plastic baggies he inadvertently and ‘plainly viewed’” was lawful. Slip Op. at 16.
The court then turned to the trial court’s ruling that the warrantless entry of officers into the house to conduct a protective sweep was unlawful. Noting applicable precedent, the court explained “[t]he Supreme Court of the United States, the Supreme Court of North Carolina, and this Court have all recognized and affirmed a law enforcement officer’s ability to conduct a protective sweep both as an exigent circumstance and for officer’s safety when incident to arrest.” Id. at 16-17. The court found that the officers had both justifications here, as defendant was a member of a gang and known for violence involving weapons, and the officers were unsure whether any other people remained inside the house.
Finally, the court examined the probable cause supporting the search warrant for the house. Defendant argued that the smell of marijuana could not support probable cause due to it being indistinguishable from industrial hemp. Looking to applicable precedent such as State v. Teague, 2022-NCCOA-600, ¶ 58 (2022), the court noted that the Industrial Hemp Act did not modify the state’s burden of proof, but also noted that like in Teague, the smell of marijuana was not the only basis for probable cause in this case. Slip Op. at 25. Here the court found the drugs in defendant’s pocket and the drug paraphernalia observed during the protective sweep also supported probable cause.
Delay in releasing defendant and subsequent concussion while in custody did not represent flagrant violation of defendant’s constitutional rights; aggravating factors were improperly found by trial court instead of jury for driving while impaired sentence; trial court improperly sentenced defendant without making specific findings justifying community punishment term.
State v. King, COA22-469, ___ N.C. App. ___ (April 18, 2023). In this Buncombe County case, defendant appealed his convictions for driving while impaired and reckless driving, arguing error in (1) denying his motion to dismiss, (2) improperly applying aggravating factors to his impaired driving conviction, and (3) imposing a reckless driving sentence without making specific findings justifying the length of community punishment. The Court of Appeals vacated and remanded for new sentencing hearings on the convictions, but otherwise affirmed.
Defendant’s driving offenses came for trial at district court in August of 2021. After being found guilty at district court, defendant timely appealed to superior court. However, due to a court system error, defendant’s appeal was not properly entered, and defendant was held in detention for six additional days. While he was in detention, he was not provided with necessary medication, and he suffered a seizure resulting in a concussion. At superior court, defendant filed a motion to dismiss arguing irreparable prejudice to his ability to prepare a defense due to the concussion, a motion denied by the trial court. Defendant was found guilty and during sentencing, the trial court found three aggravating factors: “(1) defendant’s driving was especially reckless; (2) defendant’s driving was especially dangerous; and (3) defendant was convicted of death by motor vehicle in August 2015.” Slip Op. at 3. This led to defendant receiving a sentence at Level III for the impaired driving conviction.
Considering (1) defendant’s motion to dismiss, the Court of Appeals explained that G.S. 15A-954(a)(4) governed motions to dismiss for flagrant violations of a defendant’s constitutional rights. The court looked for “structural errors” in the framework of the trial process as explained in State v. Hamer, 377 N.C. 502 (2021). Slip Op. at 6. Defendant did not testify at the district court level, and it appeared unlikely he would have testified regardless of his injury at superior court, leading the court to conclude that he could not meet the burden of irreparable prejudice required for dismissal. The court also noted defendant was acquitted of two of the charges against him at superior court, suggesting that he mounted a solid defense.
Considering (2) the aggravating factors for driving while impaired, the court explained that on December 1, 2006, changes in the applicable law moved the responsibility for consideration of aggravating factors from the trial judge to the jury. The current law in G.S. 20-179(a1) places the responsibility on the state to prove these factors beyond a reasonable doubt to the jury. The court examined the caselaw arising from Blakely v. Washington, 542 U.S. 296 (2004), and the concept of harmless error review when a judge fails to submit aggravating factors to the jury. Slip Op. at 9. After exploring applicable federal and state precedent on the failure to submit an aggravating factor to the jury and harmless error, the court concluded:
Since the relevant federal cases provide the bare minimum, and all relevant state cases are distinguishable because they were decided prior to the modification of the statute where it is clear from the timing and language of the statute that the legislature intended to change the standards adopted by our courts, we hold aggravating factors must be decided by the jury or the case must be remanded for a new sentencing hearing.
Id. at 12. As a result, the court vacated the trial court’s judgement and remanded for resentencing.
Considering the final issue, (3) defendant’s reckless driving sentence, the court explained that G.S. 15A-1343.2(d)(1) requires a trial court to make specific findings if they sentence a defendant to a community punishment longer than 18 months for a misdemeanor like reckless driving, and here defendant received a 36-month community punishment without specific findings. The state conceded this was error, and the matter was also vacated and remanded for resentencing.
Judge Gore dissented by separate opinion, and would have found the trial court’s error as harmless under the harmless error standard. Id. at 14.
Under third step of Batson analysis, defendant failed to establish racially discriminatory intent for peremptory challenges where prosecution dismissed two black jurors.
State v. Cuthbertson, COA22-92, ___ N.C. App. ___ (April 18, 2023). In this Rowan County case, defendant argued error in overruling his objection under Batson v. Kentucky, 476 U.S. 79 (1986) to the prosecution peremptorily striking two black jurors. The Court of Appeals found no error.
Defendant, a black man, reached trial in June of 2021 for charges of misdemeanor assault on a government official/employee. Relevant for the consideration of the objection, the victim of the assault was a white police officer. During jury selection, only four black potential jurors were a part of the jury pool; one black juror was struck for cause, and then the prosecutor used two peremptory challenges on two remaining black potential jurors. At this point, defense counsel objected and the trial court proceeded with the inquiry required by Batson.
The Court of Appeals reviewed defendant’s arguments, initially noting that under both the U.S. and North Carolina constitutions, the use of peremptory challenges for racially discriminatory reasons is prohibited, and courts in North Carolina apply the Batson analysis to determine if a violation occurred. Here, defendant only challenged the third step of the Batson inquiry, where the trial court determined that the prosecutor’s peremptory strikes were not motivated by discriminatory intent. Defendant also argued in the alternative that the trial court failed to sufficiently explain the basis of its ruling.
The court found no issue with the trial court’s description of the basis for its ruling, and denied remand. Using the analogy of a scale, the court found that “[h]ere, unlike in [related Batson precedent], the trial court placed all the factors presented to it by the parties on the scale, and thus we do not need to remand.” Slip Op. at 17. The court walked through the considerations made by the trial court, including the consideration of issues not raised by either party, and satisfied itself that the trial court “adequately accounted for all the factors presented to it at Batson’s third step.” Id. at 21.
The court then looked directly at the conclusion of no discriminatory purpose in the third step, reviewing the relevant factors to determine if the trial court committed clear error. After conducting a lengthy review spanning pages 22 to 41 of the opinion, the court concluded that “[t]he statistics of strike rates and susceptibility of the case to racial discrimination both weigh on the side of discriminatory intent,” but the lack of disparate questioning and investigation, and the race-neutral reasons given by the prosecutor for striking the jurors both weighed on the side of no discrimination. Id. at 40-41. Based on this review, the court could not find clear error to support defendant’s Batson challenge.