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Case Summaries – N.C. Court of Appeals (Dec. 1, 2020)

This post summarizes published opinions issued by the North Carolina Court of Appeals on December 1, 2020.

When screenshots of social media comments are used as evidence showing both the fact of the communication and its purported author, the screenshots must be authenticated both as photographs and written statements

State v. Clemmons, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 1, 2020).  In this violation of a DVPO case, screenshots of Facebook posts were authenticated by sufficient circumstantial evidence showing that the screenshots in fact depicted Facebook posts and that the comments in the post were made by the defendant such that the screenshots were properly admitted into evidence.  Shortly before the defendant was scheduled to be released from prison, the victim renewed a DVPO prohibiting him from contacting her.  Soon after his release, the victim began receiving phone calls from a blocked number and Facebook comments from her daughter’s account that the victim believed were written by the defendant rather than her daughter.  These communications were the basis for the DVPO violation at issue.

The court first reviewed precedent to determine that the question of whether evidence has been sufficiently authenticated is subject to de novo review on appeal.  The court then held that when screenshots of social media comments are used as they were here – to show both the fact of the communication and its purported author, the screenshots must be authenticated both as photographs and written statements.  The victim’s testimony that she took the screenshots of her Facebook account was sufficient to authenticate the images as photographs.  The victim’s testimony of receiving letters from the defendant while he was in prison and distinctive phone calls from a blocked number after his release, together with evidence of the defendant’s access to the daughter’s Facebook account was sufficient to authenticate the comments as written statements potentially made by the defendant such that admission of the screenshots into evidence was proper.

Judges Bryant and Berger concurred in result only, without separate opinions.

 

Evidence that the defendant was the perpetrator of a different breaking and entering on the same day as the break-in at issue was properly admitted under Rule 404(b)

State v. Grady, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 1, 2020).  In this felony breaking and entering, larceny, and felon in possession case, evidence that the defendant committed a similar breaking and entering was properly admitted under Rule 404(b).  In addition, certain statements made by the victim of the similar breaking and entering were admissible as a present sense impression, and there was sufficient evidence of the felon in possession offense.  Regarding the 404(b) issue, the court determined that evidence of the other similar breaking and entering being committed by a person wearing a red and black hoody was properly admitted as circumstantially establishing that the defendant, who was wearing a red and black hoody when arrested on the same day as the break-ins, was the perpetrator in both incidents.  An officer’s testimony about the statements made by the victim of the other break-in were admissible under the present sense impression exception to the hearsay rule because the statements were made within minutes of the victim perceiving the break-in and described or explained the event.  Finally, the evidence of the felon in possession offense was sufficient to withstand a motion to dismiss as it showed that three guns were stolen during the break-in and that the defendant was the perpetrator.

 

The immigration status of a child sex abuse victim’s mother, a testifying witness, was irrelevant under Rule 401 and properly excluded

State v. Lopez, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 1, 2020).  In this sex offense with a child case, the trial court did not err by prohibiting the defendant from introducing evidence of the immigration status of the victim’s mother, a testifying witness, on the basis that the evidence was irrelevant under Rule 401.  The mother’s immigration status did not have any tendency to make the existence of a fact of consequence to the determination of the action more probable or less probable.  Further, the trial court did not err by overruling the defendant’s objection to the mother testifying that the defendant had refused to be tested for herpes after it was discovered that the child victim had herpes.  This testimony was not unfairly prejudicial under Rule 403.  Finally, the trial court did not err by denying the defendant’s motion to dismiss a charge of first degree statutory sexual offense for insufficient evidence.  The victim testified that the defendant touched her with his fingers “in the inside” in “the place where [she] go[es] pee,” and this testimony was sufficient evidence of a sexual act for purposes of the offense.

Judge Murphy concurred in the result only, writing a separate opinion to discuss when a witness’s immigration status and knowledge of U-Visas may be relevant for cross-examination, as well as other issues in the case.

 

Failing to appear as a witness when subpoenaed is punishable as criminal contempt

State v. Wendorf, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 1, 2020).  The defendant in this case was found in criminal contempt after failing to appear as a witness at an assault on a female  trial involving her husband where she was the alleged victim.  The court first determined that failing to appear as a witness when subpoenaed is punishable as criminal contempt because it constitutes willful disobedience of, resistance to, or interference with a court’s lawful process.  The court then rejected the defendant’s jurisdictional argument that the show cause order issued by the district court was facially defective for failing to comply with G.S. 15A-924(5), explaining that the statute’s requirements for pleadings in criminal cases in superior court do not apply to proceedings for criminal contempt.  The court concluded by rejecting the following arguments advanced by the defendant: (1) that the district court’s failure to indicate that it used the reasonable doubt standard of proof deprived the superior court of jurisdiction on appeal from the district court’s order; (2) that it was error for the superior court to allow the district court judge to testify in the de novo hearing on appeal from the district court’s order; and (3) that competent evidence did not support the trial court’s findings of fact related to the defendant’s failure to appear.

Judge Berger concurred in a separate opinion, expressing his view that the majority should not have considered the defendant’s argument under Evidence Rule 605 regarding the competency of the district court judge as a witness, as well as his view that the majority should not have engaged in plain error review of the witness competency issue as it was a matter within the trial court’s sound discretion.

 

(1) The evidence at trial sufficiently supported a jury instruction on acting in concert; and (2) it was error to allow a lay witness’s opinion testimony where the witness was in no better position than the jury to know what a video showed

State v. Dove, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 1, 2020).

(1) In this murder case, the trial court did not err by instructing the jury on the doctrine of acting in concert where there was evidence that the defendant and another man met together at a store, discussed with the defendant’s brother that the victim owed the brother money, received instructions from the brother to collect the money, traveled together to the scene of the murder, and fled together from the scene after the defendant shot the victim.

(2) The trial court erred in allowing the co-defendant’s aunt, who was present at the scene of the murder but did not witness it directly, to testify that she believed the defendant was holding a gun in surveillance video footage published to the jury.  This lay opinion testimony, which was not based on any personal knowledge, invaded the role of the jury in violation of Rule 602 because the aunt was in no better position to know what the video showed than the jurors.  The error did not prejudice the defendant.

 

(1) The evidence in a second-degree kidnapping case was sufficient that the Defendant unlawfully removed the victim without the victim’s consent by means of fraud and trickery for the purpose of committing armed robbery; and (2) the record was insufficient to review the merits of a claim of ineffective assistance of counsel

State v. Parker, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 1, 2020).

(1) Evidence at trial tended to show that after the victim requested a ride to Walmart and the community college because his car was in the shop for repair, the defendant, who was the victim’s cousin, and the defendant’s girlfriend drove the victim to a secluded area where the defendant robbed him at gunpoint.  Viewed in the light most favorable to the State, the victim’s testimony of the defendant’s claim of having to “make a quick stop somewhere” on the way to the community college from Walmart, where the victim had cashed a check for a significant amount of money, was sufficient evidence that the defendant unlawfully removed the victim by means of fraud and trickery, without the victim’s consent, for the purpose of committing armed robbery such that the trial court did not err by denying the defendant’s motion to dismiss for insufficient evidence.  As the court explained, the “[d]efendant’s misrepresentations regarding the parties’ ultimate destination enabled him to remove [the victim] to the secluded location, where [the] [d]efendant robbed him at gunpoint.” Slip op. at 19.

(2) The record was insufficient to enable review of the merits of the defendant’s ineffective assistance of counsel claim regarding his trial attorney’s failure to stipulate to a prior conviction and the court dismissed the claim without prejudice so that the defendant could reassert it in a MAR.

 

The trial court did not err by applying the “great monetary value” aggravating factor when sentencing the defendant following her conviction of embezzlement where the defendant embezzled $102,242.62 in excess of the $100,000 threshold required for a conviction of Class C felony embezzlement under G.S. 14-90(c)

State v. Gamble, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 1, 2020).  In July 2016, the defendant was the executive director of a nonprofit when she informed the board of directors that the nonprofit was out of money. Between 2012 and 2016, the balance of the nonprofit’s account had gone from $400,000 to $400. The SBI discovered $410,203.41 in unauthorized expenditures in the form of checks and credit card charges, all of which benefited the defendant.

The defendant was charged with eight counts of embezzlement of property received by virtue of office or employment (G.S. 14-90); two of the counts alleged that the defendant embezzled property over $100,000 in value. A jury found the defendant guilty of all charges and at sentencing the defendant plead guilty to two aggravating factors: “one of the offenses involving unauthorized credit card transactions and all three offenses involving unauthorized checks ‘involved an . . . actual taking of property of great monetary value.’” Slip op. at 3. The trial court applied these aggravating factors to the defendant’s conviction of embezzling $202,242.62 in the year 2015 and sentenced the defendant within the aggravated range of 92-123 months.

On appeal, the defendant argued that the trial court erred by imposing a sentence in the aggravated range because the “great monetary value” aggravating factor could not be applied because the value embezzled, $202,242.62, was not far greater than the $100,000 amount required to support a conviction of Class C felony embezzlement under G.S. 14-90(c). See slip op. at 4. The Court of Appeals rejected the defendant’s argument saying that it would not make determinations based on a rigid ratio. The Court of Appeals noted that the amount embezzled was more than twice the $100,000 threshold and stated that “$202,242.64 is, from the standpoint of an ordinary person, a great value of money.” Therefore, “the trial court did not err by applying the aggravating factor of ‘taking of property of great monetary value’ when sentencing [the] [d]efendant.” Slip op. at 6-7.

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