This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on August 6, 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) Statement by child describing her sister’s sexual abuse was admissible under Rule 803(4); (2) testimony “corroborating” a statement by a witness who did not testify was improper but defendant waived objection; (3) reference to past behavior predicting future behavior was improper for Rule 404(b) evidence.
State v. Anderson, COA23-821, ___ N.C. App. ___ (Aug. 6, 2024). In this Cleveland County case, defendant appealed his convictions for statutory sexual offense with a child and indecent liberties with a child, arguing error in (1) admitting testimony containing hearsay from a pediatrician, (2) admitting testimony containing hearsay to “corroborate” a minor victim’s account of abuse, and (3) failing to intervene ex mero motu during the prosecutor’s closing argument. The Court of Appeals found no error in (1), and no prejudicial error in (2)-(3).
Defendant came to trial on the charges in January of 2023, after an investigation by the Cleveland County Department of Social Services into allegations that defendant sexually abused his two daughters. During the trial, defendant’s two daughters both testified about defendant’s actions. Additionally, a pediatrician who examined the two girls testified about statements they made during medical examinations. Defendant’s half-brother also testified, and explained that his step-sister had told him about sexual contact between defendant and the half-brother’s daughter. The daughter also testified about those events at trial, and a signed statement from defendant that was given in 2009 was admitted into evidence. During closing argument, the prosecutor attempted to describe “404(b) evidence” to the jury, and included the following statement: “The best predictor of future behavior is past behavior.” Slip Op. at 6.
Taking up (1), the Court of Appeals first noted the basis of the objection, as the pediatrician testified that the patient, one of defendant’s daughters, told her that defendant had touched her sister in a no-no spot. The prosecution responded to defendant’s objection by arguing that the statement could be admitted under Rule of Evidence 803(4), as a statement offered for medical diagnosis or treatment. Even though the statement referenced the patient’s sister, the court held that it was still offered for medical diagnosis or treatment. Here the pediatrician was conducting an exam that included “a patient’s mental health,” and the patient’s statement “concerned an eyewitness account of her sister’s sexual abuse, which undoubtedly affected [the patient’s] mental health.” Id. at 12.
Moving to (2), the court agreed with defendant that the trial court erred by admitting the hearsay statements, but held that defendant waived his objection. The testimony was framed as “corroborating” a witness’s former statement, but this witness did not testify at trial. Despite the error, the court held that defendant waived his objection because he did not object to other evidence that supported the out of court statements. Because the other evidence was “of a similar character,” including the written statement given by defendant himself, the court held that defendant waived his objection. Id. at 16.
Finally, the court considered (3), noting that the prosecutor’s statement was “the exact propensity purpose prohibited by [Rule of Evidence] 404(b).” Id. at 19. Although this statement was improper, the court did not see prejudice to the defendant, as there was ample evidence of guilt, and defendant did not rebut the presumption that the jury followed the trial court’s instructions.
Trial court improperly required SBM for low risk range; probation and post-release supervision must run concurrently.
State v. Barton, COA23-1148, ___ N.C. App. ___ (Aug. 6, 2024). In this Brunswick County case, defendant appealed after entering guilty pleas to four counts of second-degree exploitation of a minor. Defendant argued error in (1) requiring him to register for satellite-based monitoring (SBM) when he was in the low-risk range, and (2) sentencing him to probation after his post-release supervision was completed. The Court of Appeals agreed, vacating the SBM order without remand, and vacating the probation judgment and remanding to the trial court for further proceedings.
Defendant entered his guilty pleas in May 2023. The trial court entered four judgments; in the first, defendant was sentenced to 25 to 90 months of imprisonment, followed by the mandatory five years of post-release supervision for a reportable conviction under G.S. 14-208.6. The trial court suspended the active sentences of the other three judgments and imposed 60 months of probation to run consecutively with the first judgment. The trial court specified that “probation is not going to begin to run until the conclusion of his post-release supervision.” Slip Op. at 2. The trial court then conducted an SBM hearing where evidence of defendant’s STATIC-99R score of “1” was admitted, classifying him as “low risk range” for recidivism. Id. at 3. Despite the low risk score and the lack of additional evidence from the State, the trial court ordered five years of SBM, with no additional findings justifying the order. The Court of Appeals granted defendant’s petitions for writ of certiorari to consider both issues.
Considering (1), the court explained it was error under State v. Jones, 234 N.C. App. 239 (2014), to impose SBM on a low risk defendant without additional findings. Here the State admitted no evidence and the trial court made no findings justifying the imposition of SBM. The court held this was error, and following the Jones precedent, reversed the imposition of SBM without remand.
Moving to (2), the court noted that the structure of G.S. 15A-1346 could permit two different interpretations, as this section does not specifically address whether probation should run concurrently with post-release supervision. The section provides that probation must run concurrently with “probation, parole, or imprisonment,” but does not reference post-release supervision, and no previous case had determined “imprisonment” included post-release supervision. Id. at 10. This led the court to conclude that “the General Assembly has not clearly stated whether probation can run consecutively with post-release supervision.” Id. at 12. The court applied the rule of lenity and determined that defendant’s “probation must run concurrently with his post-release supervision.” Id. This necessitated vacating and remanding to the trial court for a new plea agreement or a trial on the matter.
Record established probable cause for search warrant unconnected to officer’s possible illegal search of the curtilage.
State v. Corrothers, COA23-865, ___ N.C. App. ___ (Aug. 6, 2024). In this Columbus County case, defendant appealed his convictions for first-degree murder and robbery with a dangerous weapon, arguing (1) plain error in admitting tainted evidence obtained after an improper search, (2) ineffective assistance of counsel when his attorney failed to file motions to suppress the tainted evidence, and (3) error in denying motions to dismiss and set aside the verdict. The Court of Appeals dismissed (1) as unpreserved and found no ineffective assistance of counsel or error in (2)-(3).
In January of 2020, the victim was reported missing after going to defendant’s home for an apparent drug deal. Law enforcement checked cellphone records and determined that defendant’s home was the last active location of the victim’s phone. A detective went to defendant’s residence, but no one answered his knock at the door. The detective walked around the home, and in the rear of the house observed a hole in the ground. After obtaining several search warrants, the victim’s body was found in the hole. When defendant came to trial, defendant did not object to the admission of evidence obtained from the search warrants.
Taking up (1), the Court of Appeals explained that under State v. Miller, 371 N.C. 266 (2018), defendant had waived his arguments against the evidence obtained after the detective walked around his home and observed the hole because he failed to file a motion to suppress. However, defendant also argued in (2) that his counsel’s failure to file a motion to suppress represented ineffective assistance of counsel. Here, defendant argued the detective went beyond the normal area open to the public for a knock-and-talk when he walked onto the curtilage of the house and into the back yard. The court declined to consider whether this was an unlawful search, holding the record established that the observation of the hole/possible unlawful search was not the source of the information supporting the search warrant. The court explained “the cold record establishes that [the detective’s] observation of the hole during his walk about the Property . . . did not prompt the warrant applications when viewed in light of the totality of the circumstances, which supported the trial court’s determinations of probable cause.” Slip Op. at 10. Because the search warrant applications were supported by evidence unconnected to the detective’s visit, defendant could not demonstrate ineffective assistance of counsel.
Moving to (3), the court found ample evidence in the record to support defendant’s guilt and the denial of defendant’s motions, including a long text message exchange setting up a drug deal with the victim, and shell casings matching the projectiles removed from the victim’s body.
Trial court made insufficient findings to support recommendation to parole commission that defendant should not be granted parole under G.S. 15A-1380.5.
State v. Dawson, COA23-801, ___ N.C. App. ___ (Aug. 6, 2024). In this Craven County case, defendant appealed the trial court’s recommendation to the parole commission that he should not be granted parole and his judgment should not be altered or commuted. The Court of Appeals vacated the trial court’s recommendation and remanded for further proceedings.
Defendant’s appeal arose from the former G.S. 15A-1380.5, which was repealed in 1998. That section permitted a defendant sentenced to life without parole to petition for review of their sentence after 25 years served. The Court of Appeals first established that defendant had a right to appeal the trial court’s recommendation to the parole commission under the language of the former statute, concluding it was a “final judgment” and defendant had a right to review for “abuse of discretion.” Slip Op. at 6. The court then moved to the findings, and lack thereof, in the trial court’s order, holding “the findings in the Order are insufficient for us to conduct a meaningful review of the trial court’s reasoning.” Id. at 8. The court vacated the order, remanding so the trial court could either make additional findings or reconsider its recommendation.
Trial court properly denied request for lesser included offense of misdemeanor child abuse and instruction on parent’s right to administer corporal punishment.
State v. Freeman, COA24-120, ___ N.C. App. ___ (Aug. 6, 2024). In this Montgomery County case, defendant appealed her conviction for felony child abuse resulting in serious physical injury, arguing error in (1) failing to instruct on the lesser included offense of misdemeanor child abuse, (2) denying her motion to dismiss, and (3) failing to instruct on a parent’s right to administer corporal punishment. The Court of Appeals found no error.
The charge against defendant arose from abuse inflicted on the five-year old son of defendant’s fiancée. After the boy got in a scuffle at his bus stop, defendant made him run in place for at least 45 minutes. A social worker at the school observed bruises and swelling on his feet, and other bruises on his body. During an interview, defendant admitted to making the boy run in place for at least 45 minutes “three to four times” during the previous week. Slip Op. at 5. At trial, defendant moved to dismiss the charges for insufficient evidence, and the trial court denied the motion. Defendant did not object to the jury instructions or request an instruction on the lesser-included offense.
Beginning with (1), the Court of Appeals explained that because the evidence was clear as to each element of felony child abuse, defendant was not entitled to an instruction on the lesser included offense. The court focused on the “serious physical injury” standard to differentiate between the charges, and noted “[i]n totality, the evidence here demonstrated [the boy] experienced ‘great pain and suffering’ and that his injuries were such that a reasonable mind could not differ on the serious nature of [his] condition.” Id. at 14.
Moving to (2), defendant argued insufficient evidence of “serious physical injury” and “reckless disregard for human life.” Id. at 15. The court disagreed, pointing to the analysis in (1) above, and to the standard from State v. Oakman, 191 N.C. App. 796 (2008), that culpable or criminal negligence could constitute “reckless disregard for human life.” Here defendant’s actions represented sufficient evidence of both elements to justify denying the motion to dismiss.
Finally, in (3) the court acknowledged the general rule that a parent, including a person acting in loco parentis, is not criminally liable for corporal punishment, but the general rule does not apply when the parent acts with malice. First, the court concluded that defendant’s position as a fiancée of the biological mother did not represent her acting in loco parentis. The court then explained that even if defendant was acting in loco parentis, “a jury could reasonably infer that Defendant acted with malice; therefore, the absence of a jury instruction on corporal punishment did not prejudice Defendant.” Id. at 21.
Judge Murphy concurred in (2) and concurred in the result only for (1) and (3).
Letters from SunTrust Bank and Amazon given under penalty of perjury but not sworn before notary satisfied authentication requirement of Rule 803(6).
State v. Hollis, COA 23-838, ___ N.C. App. ___ (Aug. 6, 2024). In this New Hanover case, defendant appealed her conviction for embezzlement of property received by virtue of office or employment, arguing error in admitting business records without an affidavit sworn before a notary public. The Court of Appeals disagreed, finding no error.
Defendant performed purchasing and billing for her employer and had access to the corporate credit card. Another employee discovered two first class tickets to the Bahamas reserved in defendant’s name and purchased with the company card. This led to the discovery of additional fraudulent purchases and expenses, totaling more than $360,000. Defendant came to trial in October of 2022, where the State offered business records from SunTrust Bank and Amazon showing purchases by defendant. The records contained authentication certificates that indicated they were signed under penalty of perjury, but they were not notarized or otherwise confirmed by oath or affirmation. Defendant objected, but the trial court admitted the records.
Reviewing the appeal, the Court of Appeals noted that the version of Rule of Evidence 803(6) in place prior to March 1, 2024, allowed business records to be admitted with an affidavit, but neither document was sworn before a notary as traditionally expected of an affidavit. The court then parsed whether the certificates with the documents could qualify as an “affidavit” for purposes of the rule, explaining that “[t]he purpose of an oath before a notary is to impart to the affiant the importance of stating the truth, and explicit acknowledgement of the penalty of perjury evinces a similar level of credibility.” Slip Op. at 12-13. Considering this, the court concluded that “[t]he letters from SunTrust and Amazon employees, made under penalty of perjury and communicating that the records were made in the course of a regularly conducted business activity . . . fulfill the purpose of authentication.” Id. at 15. The court found no reversible error in admitting the documents.
Cross-examination of witness regarding defendant’s plea to felony possession of firearm served to impeach witness’s credibility; evidence supported constructive possession of methamphetamine.
State v. Jones, COA23-1062, ___ N.C. App. ___ (Aug. 6, 2024). In this Cleveland County case, defendant appealed his conviction for possession of a firearm by a felon, possession of a weapon of mass destruction, and possession of methamphetamine, arguing error in (1) allowing cross-examination on his previously-conceded felony conviction and (2) denying defendant’s motion to dismiss for insufficient evidence. The Court of Appeals found no error.
Defendant’s girlfriend reported to law enforcement in January of 2022 that defendant had guns in his house. After obtaining a search warrant, law enforcement found guns and methamphetamine in defendant’s bedroom. At trial, defendant objected to the cross-examination of one of his witnesses, his mother, about defendant’s prior conviction for possession of a firearm by a felon. Defendant had previously conceded that he was a felony, hoping to avoid having the jury hear he had a previous conviction for possession of a firearm by a felon. The trial court allowed the cross-examination and the State questioned defendant’s mother about his prior guilty plea to possession of a firearm by a felon, which she was in the courtroom to witness.
Taking up (1), the Court of Appeals explained that the evidence that defendant had previously pleaded guilty to possessing a firearm was relevant to impeach his mother’s credibility, as she had testified that she had never known him to possess a gun. Even though the evidence may have had some prejudicial effect, the court could not find abuse of discretion by the trial court in admitting the evidence here.
Moving to (2), defendant’s argued lack of evidence that he constructively possessed the meth found in his bedroom, as others visited the trailer where he lived. The court disagreed, noting that he owned the trailer, that scales and other paraphernalia were found with the meth, and that a jailhouse phone call referenced “that the officers probably ‘found something on that mirror.’” Slip Op.at 7.
Rule 404(b) testimony about uncharged sexual assault offenses showed common plan or scheme and were not unduly prejudicial under Rule 403; possible variance in dates of offenses did not prejudice defendant.
State v. Lopez, COA23-726, ___ N.C. App. ___ (Aug. 6, 2024). In this Rowan County case, defendant appealed his convictions for rape of a child and additional sexual offenses with two children, arguing error in (1) admitting evidence of prior sexual abuse that was not charged, and (2) denying his motion to dismiss because the State did not produce substantial evidence of the dates of his alleged offenses against one victim. The Court of Appeals found no error.
Defendant sporadically dated, and occasionally lived with, the mother of the two victims between 2007 and 2017. In September of 2019, one victim reported sexual abuse to her pediatrician. Subsequently, the other victim reported similar allegations of sexual abuse against defendant. During trial, the State elicited testimony from one victim about abuse that occurred in Cabarrus County in an earlier time period. The victim testified that she had blocked out the specific details of the individual acts, and they were not part of the charged offenses. The trial court found this evidence was admissible to show defendant’s plan, intent, or scheme and allowed the testimony before the jury.
Taking up (1), the Court of Appeals explained that defendant challenged the admission of the testimony as erroneous under Rule of Evidence 404(b) and highly prejudicial under Rule of Evidence 403. The court first concluded that “[b]ased on the similarity of the allegations and the temporal proximity” the testimony showed a common plan or scheme by defendant. Slip Op. at 10. Looking next to the Rule 403 analysis, the court did not see abuse of discretion, noting that the trial court weighed the evidence and limited the amount of testimony in front of the jury.
Reaching (2), the court explained that “[i]n cases involving sexual assaults of children, our Supreme Court has explicitly relaxed the temporal specificity requirements that the State must allege.” Id. at 13. Here, defendant did not prove prejudice by the possible variance in the dates, and beyond asserting “that his relationship with the girls’ mother was volatile and that he frequently left the home” defendant did not present an alibi that would have been affected by the dates. Id. at 14.
Failure to appear for hearing on motion to set aside bond forfeiture did not justify denial of motion when statutory reason was provided in the motion.
State v. Maye, COA24-77, ___ N.C. App. ___ (Aug. 6, 2024). In this Lenoir County case, defendant’s bond surety appealed the trial court’s order denying its motion to set aside bond forfeiture. The Court of Appeals reversed the trial court’s order and remanded.
In January of 2023, defendant did not appear for court, leading to the bond forfeiture notice. The surety filed a motion to set aside the forfeiture, including copies of orders for defendant’s arrest. The school board objected and sent a notice of hearing with an erroneous hearing date of August 2, 2023, when the hearing was actually August 30, 2023. The school board argued that it subsequently sent a corrected notice. Regardless, on the hearing date the bond surety did not appear, and the trial court denied the motion.
Taking up the appeal, the Court of Appeals first established jurisdiction after the parties raised issues concerning service of the proposed record and the record’s necessary materials. Having established jurisdiction, the court noted that “[w]hen the bondsman files a motion to set aside, the ‘forfeiture shall be set aside for any’ of the reasons enumerated in [G.S.] 15A-544.5(b).” Slip Op. at 7. Here, even though the bond surety did not appear at the hearing on the motion, the motion contained a valid statutory reason to set aside the forfeiture. The court noted that failure to appear did not grant the trial court “absolute discretion to deny the absent party’s motion,” and concluded that the trial court erred. Id. at 8.
Evidence that prisoner struck corrections officer in the face represented “physical injury” for assault inflicting physical injury on an employee of a state detention facility.
State v. McLean, COA23-1100, ___ N.C. App. ___ (Aug. 6, 2024). In this Rowan County case, defendant appealed his conviction for assault inflicting physical injury on an employee of a state detention facility, arguing the jury should have been instructed on the lesser included offense of assault on an officer or employee of the State. The Court of Appeals disagreed, finding no error.
In March of 2021, defendant was confined at Piedmont Correctional Center. He became agitated because he did not receive the personal hygiene items he needed and began discussing the matter with correctional officers. Eventually, a sergeant asked him to leave his cell and walk to a private area to discuss. During the walk, defendant turned around and struck the sergeant in the face with his fist, leading to a tussle before defendant was subdued. At trial, a video recording of the incident was played for the jury, and the sergeant testified that he was struck “multiple times in the face, around six to ten times.” Slip Op. at 3. During the charge conference, defense counsel requested the lesser included offense, but the trial court denied the request.
Before taking up the substance of defendant’s appeal, the Court of Appeals discussed the appellate jurisdiction for the case. Defendant gave notice of appeal in open court but gave this notice the day after the trial court sentenced him for the offense. The court considered what “at the time of trial” meant for purposes of the appeal. Id. at 5. After reviewing relevant precedent and appellate rules, the court concluded that defendant’s appeal was timely because he “provided notice of appeal in open court while the judgment was in fieri and the trial court possessed the authority to modify, amend, or set aside judgments entered during that session.” Id. at 8.
Moving to the jury instruction, the court noted the distinction between the two offenses was the “physical injury” element not present in the lesser offense. The court found the physical injury element was sufficiently satisfied by the evidence showing defendant struck the sergeant in the face. Because the State supplied sufficient evidence of each element of the offense, there was no error in omitting the instruction on the lesser included offense.
Search of defendant’s vehicle was supported by probable cause based on officer’s observation from outside vehicle; trial court improperly revoked defendant’s probation without finding of good cause.
State v. Siler, COA23-474, ___ N.C. App. ___ (Aug. 6, 2024). In this Chatham County case, defendant appealed after pleading guilty to trafficking in opium or heroin by possession with a plea agreement to preserve his right to appeal the denial of his motion to suppress. The Court of Appeals affirmed the judgment on the guilty plea, but vacated the judgment that revoked defendant’s probation, and remanded to the trial court for reconsideration.
In July of 2021, defendant was sitting in the passenger seat of a car parked at a gas station when a law enforcement officer pulled up next to him. The officer was in uniform and in a marked car; while the officer pumped gas into his vehicle, he observed defendant move an orange pill bottle from the center console to under his seat. Defendant then exited the vehicle, and the officer questioned him about the pill bottle. Defendant denied having any pills, but after further questioning, produced a different pill bottle, and told the officer the pills were Vicodin he received from a friend. The officer then searched the vehicle, finding the orange pill bottle, and lab testing later confirmed the pills were opioids. Unbeknownst to the officer, defendant was on probation during the encounter. The trial court revoked this probation after defendant’s guilty plea, even though defendant’s probationary period had expired, but the trial court did not make any findings of good cause.
Taking up the motion to suppress, the Court of Appeals first noted that the case presented an issue of first impression: “Is a search based on a standard less than probable cause (as authorized by the terms and conditions of probation) valid, where the officer performing the search is not aware that the target of his search is on probation?” Slip Op. at 3. However, the court declined to answer this question. Instead, the court concluded that “the evidence of the encounter up to just prior to the search of the vehicle was sufficient to give the officer probable cause to search the vehicle.” Id. at 8. Because defendant only pleaded guilty to the charge related to the orange pill bottle in the vehicle, the court avoided exploring the issues related to the Vicodin inside the other pill bottle that defendant offered after questioning.
The court then considered the revocation of defendant’s probation, noting that the State conceded the trial court’s error in not making a “good cause” finding. The court noted that “there was sufficient evidence before the trial court from which that court could make the required finding” and remanded for reconsideration. Id. at 10.
Circumstantial evidence supported “lack of consent” for breaking and entering and larceny charges; G.S. 15A-1335 did not prevent imposing a more severe sentence when the prior record level increase was statutorily required.
State v. Thomas, COA23-774, ___ N.C. App. ___ (Aug. 6, 2024). In this Guilford County case, defendant appealed his convictions for possession of a stolen motor vehicle and associated charges related to several vehicle break-ins, arguing error in (1) denying his motion to dismiss, (2) admitting lay opinion testimony, and (3) sentencing defendant to a more severe sentence than his prior vacated sentence in violation of G.S. 15A-1335. The Court of Appeals found no error.
The Court of Appeals previously considered defendant’s case and granted him a new trial in State v. Thomas, 281 N.C. App. 722 (2022) (unpublished). In 2019, the High Point Police Department investigated several vehicle break-ins and thefts, including the use of stolen credit cards from vehicles at retailers in the area. After spotting a stolen vehicle, officers pursued, but lost the vehicle and later found it abandoned. Inside were items related to several of the break-ins. The police were able to use surveillance footage and other evidence to tie the stolen vehicle and thefts to defendant.
In (1), defendant argued that the State failed to present evidence of “lack of consent” from the owner of one of the vehicles, a van, that he broke into, because the owner did not testify. The Court of Appeals disagreed, noting that while lack of consent is an essential element of breaking and entering and larceny, circumstantial evidence can support a finding of lack of consent. Here, defendant was caught on surveillance video walking around the van, then trying the door handles to determine if the door was unlocked. After finding the door unlocked, he quickly went through the van’s contents while “rarely go[ing] more than a second without looking up at the storefront or around the parking lot.” Slip Op. at 11. Defendant then kept his headlights off until he drove away from the parking area. This circumstantial evidence supported the inference that defendant did not have consent to enter the vehicle.
Moving to (2), defendant argued that testimony from one of the police officers identifying defendant as the person shown on surveillance video represented improper lay opinion testimony. The court noted that here the standard of review was plain error, as defendant did not object at trial, and defendant did not show that he was prejudiced by the possible error, as overwhelming evidence of his guilt was already in the record.
Reaching (3), the court explained that G.S. 15A-1335 prohibits a more severe sentence than the prior sentence, unless the increased sentence is statutorily required. Here, the trial court added a point to defendant’s prior record level “which raised his prior record level from III to IV.” Id. at 17. The court looked to the language of the companion statute G.S. 15A-1340.14, noting that subsection (b)(6) specifies how points are assigned and does not provide for a discretionary allocation by the trial court. The court disagreed with defendant’s interpretations of applicable caselaw and the language of the relevant statutes, explaining that “[i]n the absence of any mitigating factors, the trial court was not statutorily authorized to impose any lesser sentence than the sentence entered.” Id. at 18.