Case Summaries: N.C. Court of Appeals (Dec. 15, 2020)

This post summarizes published criminal decisions from the North Carolina Court of Appeals released on December 15, 2020. Special thanks to Gabby Supak and Jamie Markham for assisting with this batch.

(1) Despite the State’s repeated use of “moped” to describe the defendant’s vehicle, sufficient evidence existed to establish that the defendant’s vehicle met the statutory definition of “motor vehicle”; (2) New trial required where trial court plainly erred in failing to instruct the jury on the definition of “motor vehicle”

State v. Boykin, ___ N.C. App. ___ (Dec. 15, 2020). In this Sampson County case, the defendant was convicted of felony fleeing to elude, habitual felon, and habitual impaired driving. The focus of the defendant’s arguments on appeal were on the definition of “motor vehicle” as used in G.S. 20-141.5(a) and G.S. 20-4.01(23) at the time of the offenses in 2015. This definition excluded “mopeds” from the definition of “motor vehicles.” Within that statutory framework, a “moped” was defined as “[a] vehicle that has two or three wheels, no external shifting device, and a motor that does not exceed 50 cubic centimeters piston displacement and cannot propel the vehicle at a speed greater than 30 miles per hour on a level surface.” G.S. 105-164.3(22) (2015).

(1) The defendant argued that the State did not prove that the defendant was operating a motor vehicle, an element of felony speeding to elude arrest, based on the State’s repeated references to defendant’s vehicle as a “moped” at trial. The Court of Appeals disagreed, finding that the statutory definition of a “moped” differs from the ordinary, vernacular use of “moped,” and determining that the State presented sufficient evidence that the defendant’s vehicle was a “motor vehicle” within the meaning of the statute. According to the court:

Ultimately, the State’s evidence met the elements of the statutory definition of a ‘motor vehicle,’ despite its repeated use of the term ‘moped,’ and defendant’s motion to dismiss the charge of felony speeding to elude arrest was properly denied. Boykin Slip op. at 11.

(2) The defendant also argued that the trial court erred by failing to instruct the jury on the definition of “motor vehicle.” Reviewing for plain error, the Court of Appeals agreed. Because the evidence, especially the State’s repeated use of the word “moped” rather than “motor vehicle,” could have led the jury to reach a different determination if they had known the statutory definition of “motor vehicle,” the defendant was entitled to a new trial on the felony fleeing to elude offense. Because the defendant was found to be a habitual felon based on the fleeing to elude, that conviction was also vacated.

(1) The trial court did not err by denying the defendant’s motion to dismiss the charges of indecent liberties with a child and first-degree kidnapping; (2) The trial court did not err when instructing the jury on first-degree kidnapping, but erred by entering judgment on sexual offense with a child by an adult after instructing the jury on the lesser offense of first-degree sex offense; (3) The trial court did not err by admitting expert witness testimony or evidence of the defendant’s prior bad acts; (4) The trial court did not err by allowing cross-examination of the defendant’s father on his warnings of the defendant’s dangerousness

State v. Coffey, ___ N.C. App. ___ (Dec. 15, 2020). The defendant was convicted of two counts of sexual offense with a child by an adult, rape of a child, first-degree kidnapping, and two counts of taking indecent liberties with a child in Wake County, stemming from the assault of a six-year-old child at a church.

(1) In regard to one of the indecent liberties convictions, the defendant argued that the State did not present sufficient evidence that the defendant acted inappropriately when touching the victim’s chest and that such evidence was only offered for corroborative purposes. The victim’s testimony discussing the touching of her chest was only presented by way of her videotaped forensic interview and was not raised in the victim’s trial testimony. The Court of Appeals disagreed, finding that the videotaped forensic interview of the victim “was properly admitted under Rule 803(4) as her statements were made for the purposes of medical diagnosis or treatment, and the statements were reasonably pertinent to diagnosis or treatment.” Slip op. at 8. Additionally, the trial court instructed the jury to consider the video as substantive evidence. The Court of Appeals therefore determined that “[t]he evidence was sufficient to support denial of the motion to dismiss the challenged charge of taking indecent liberties with a child.” Id.

The defendant also argued that there was insufficient evidence to support a finding that the defendant forcibly removed the victim to facilitate the offense, an essential element of the crime of kidnapping. Specifically, the defendant argues the evidence does not show that he used actual force, fraud, or trickery to remove the victim. The Court of Appeals rejected this argument as well, finding that the defendant’s act of taking the victim to a secluded place to continue the sexual assault was sufficient to support removal for purposes of kidnapping.

(2) Concerning the defendant’s convictions of first-degree kidnapping and sexual offense with a child, the defendant argued “that the trial court erred by instructing on first-degree kidnapping and by failing to instruct on sexual offense with a child by an adult.” Id. at 10. The Court of Appeals found no prejudicial error in the instruction given on first-degree kidnapping because “[t]he evidence at trial was consistent with the allegations in the indictment,” even though the language of the jury instruction varied from the indictment. Id. at 11. The kidnapping indictment stated that “[D]efendant also sexually assaulted [Maya]” while the jury was instructed “that the person was not released by the defendant in a safe place.” Id. at 11-12. The Court of Appeals noted that such variance is usually prejudicial error but determined that the evidence here supported both the theory of the indictment and that of the jury instructions. On plain error review, the court rejected the defendant’s argument and concluded “it is not probable that the jury would have reached a different result if given the correct instruction.” Id. at 12.

The defendant also argued that the trial court erred by entering judgment on sexual offense with a child by an adult after instructing the jury on first-degree sex offense, a lesser offense. The Court of Appeals agreed. Because “[t]he jury instruction clearly outlined the lesser included offense of first-degree sexual offense . . . it was improper for the trial court to enter judgment for two counts of sexual offense with a child.” Id. at 17. The trial court did not instruct on the essential element of age as to the sexual offense with a child by an adult charge. The defendant was therefore impermissibly sentenced beyond the presumptive range for the lesser included offense of conviction. The Court of Appeals determined this was prejudicial error and vacated the defendant’s conviction of sexual offense with a child by an adult, remanding for resentencing on the first-degree sexual offense charge.

(3) The defendant argued that the trial court erred in certain evidentiary rulings. First, the defendant alleged that expert testimony regarding the DNA profile from the victim’s underwear (matching to the defendant) should not have been admitted because there was an insufficient foundation to satisfy the requirements of Rule 702(a)(3) of the North Carolina Rules of Evidence. The Court of Appeals disagreed, finding that the witness was “a qualified expert in the field of forensics and an employee at the North Carolina State Crime Lab, [who] testified to her qualifications in the area of DNA analysis as well as her training and experience in gathering evidence for DNA profiles.” Slip op. at 19. Further, the Court explained:

[The witness] thoroughly explained the methods and procedures of performing autosomal testing and analyzed defendant’s DNA sample following those procedures. That particular method of testing has been accepted as valid within the scientific community and is a standard practice within the state crime lab. Thus, her testimony was sufficient to satisfy Rule 702(a)(3). Id. at 21.

The defendant also argued that it was plain error to allow prior bad acts evidence under Rule 404(b) of the North Carolina Rules of Evidence, claiming that the prior incident was unrelated to the current offense. The Court of Appeals determined that the trial court did not err because the facts in both cases were similar enough to be admitted for 404(b) purposes. The trial court’s findings that “both females were strangers to defendant; they were separated from a group and taken to a more secluded location; they were touched improperly beginning with the buttocks; and they were told to be quiet during the assault,” supported the admission of this evidence under Rule 404(b). Id. at 23.

(4) Finally, the defendant argued that the trial court erred by allowing cross-examination of his father and contended the State elicited irrelevant testimony from his father. Specifically, the defendant objected to the admission of questions and testimony about whether the defendant’s father warned members of the church about the defendant’s potential dangerousness. The Court of Appeals rejected this argument and determined “the questions on cross-examination elicited relevant testimony and were well within the scope of defendant’s father’s direct testimony that defendant needed frequent supervision for basic activities.” Id. at 27-28.

Judge Murphy authored a separate opinion concurring in part, concurring in result only in part, and dissenting in part. Concerning the sexual offense jury instruction, Judge Murphy believed “the trial court erred in instructing the jury, however, since the jury found beyond a reasonable doubt Defendant was at least 18 years old in another portion of its verdict and all the charges against Defendant occurred on the same date, there was no plain error.” Slip op. at 5 (Murphy, J., dissenting). Judge Murphy also pointed out that “[h]ad the jury been correctly instructed on the first-degree kidnapping indictment language and found Defendant guilty of first-degree kidnapping based on sexual assault the trial court could not have sentenced Defendant for all the sexual offenses and the first-degree kidnapping offense without violating double jeopardy.” Id. at 13. Following the guidance of State v. Stinson, 127 N.C. App. 252 (1997), Judge Murphy believed that the court should have arrested judgment on the first-degree kidnapping conviction and remanded for resentencing on second-degree kidnapping to avoid double jeopardy issues. Lastly, Judge Murphy did not believe the defendant preserved the issue of his father’s testimony for review and would have refused to consider that argument.

The trial court erred by accepting the defendant’s admission to an aggravating factor without confirming that the State either provide written notice or that the defendant waived the right to notice

State v. Dingess, ___ N.C. App. ___ (Dec. 15, 2020). In this Iredell County case, the defendant pled guilty to assault inflicting serious bodily injury for a crime in which the victim suffered a fractured skull and other injuries, leaving him partially paralyzed and suffering from dementia. At sentencing, the defendant admitted to an aggravating factor based on a prior violation of his federal probation and the trial court sentenced the defendant in the aggravated range. On appeal, the defendant argued that the court erred by accepting his admission to the aggravating factor without first confirming that the State either provided him with written notice at least 30 days before trial of its intent to prove the factor, or that the defendant waived his right to notice. Reviewing the trial transcript, the Court of Appeals concluded that the State did not provide notice and that the defendant did not clearly waive his right to notice. The trial court therefore erred. As to the remedy, because the defendant’s plea agreement was based on the possibility of a sentence in the aggravated range, and because that agreement was unfulfillable without the improperly found aggravating factor, the Court of Appeals set aside the entire plea agreement. The case was therefore remanded the case to superior court for disposition on the original charge.

Law enforcement officers exceeded the scope of the implied license to conduct a knock and talk in violation of the Fourth Amendment and the defendant’s motion to suppress should have been granted

State v. Fall, ___ N.C. App. ___ (Dec. 15, 2020). The trial court erred in denying the defendant’s motion to suppress because the officers did not lawfully have a right of access to the contraband seized. The Court of Appeals considered the following factors to distinguish a knock and talk from a search: “how law enforcement approach[ed] the home, the hour at which they did so, and whether there were any indications that the occupant of the home welcomed uninvited guests on his or her property.” Slip op. at 13. In short, the Court asks whether the behavior of law enforcement is in line with something a “reasonably respectful citizen” (or a Girl Scout) would do. Id. at 12, 16.

After receiving an anonymous drug complaint and obtaining information that the defendant was a felon in possession of a firearm, Gastonia police decided to conduct a knock and talk at the defendant’s residence to investigate. After considering the factors mentioned above, the Court held that the officers did not act like reasonable, respectful citizens. The officers here carried out the knock and talk at night, a time when members of society do not expect to be called upon at their homes unexpectedly and a practice not customary for the officers. Additionally, the officers parked their vehicles in an adjacent lot, approached the defendant’s home in the dark, dressed in dark clothing, and cut through trees, rather than parking in the driveway or street and proceeding towards the home along the paved path. The officers also passed directly by a “plainly visible no trespassing sign” which indicated the defendant’s yard was not open to public visitors. Id. at 20. Based on these factors, the Court of Appeals determined that the conduct of the officers implicated the Fourth Amendment because they “strayed beyond the bounds of a knock and talk; therefore, the seizure of evidence based on their trespassory invasion cannot be justified under the plain view doctrine.”  Id. at 23. The motion to suppress therefore should have been granted.

Justice Berger dissented and would have affirmed the trial court’s ruling on the basis that the officers acted within the scope of their implied license to approach the defendant’s home.

(1) Sufficiency and variance challenges to offense of acting as unlicensed bail runner were not preserved where defendants failed to move to dismiss that offense; (2) Evidentiary challenge to improper lay opinion not raised at trial was waived on appeal; (3) When in conflict, the definition of “surety” in Chapter 15A controls over the definition in Chapter 58, and defendants did not qualify as sureties or accommodation bondsmen under that definition

State v. Gettleman, ___ N.C. App. ___ (Dec. 15, 2020). This Harnett County case involved a husband and wife who indemnified a bond on behalf of an employee. The employee was roommates with the couple’s son. When the employee disappeared, the family members forcibly apprehended him, causing a traffic accident and apparently discharging a gun. The three defendants were charged with various offenses, including acting as unlicensed bail bondsmen or runners. (1) Two of the defendants failed to preserve their argument that the evidence was insufficient to support conviction for acting as an unlicensed bail bondsman or runner. Trial counsel for the defendants moved to dismiss some of the offenses but failed to make any motion as to all charges generally, or as to the charge of acting as an unlicensed bondsman specifically. While a motion to dismiss a charge preserves all sufficiency issues pursuant to State v. Golder, 374 N.C. 238 (2020) (discussed here), where there is no motion to dismiss as to a specific charge, appellate review of the sufficiency of evidence for that offense is waived under Rule 10(a)(3) of the North Carolina Rules of Appellate Procedure. For the same reason, one of the defendant’s arguments regarding an alleged fatal variance between the indictment and the jury instructions was waived on appeal.

[A]ny fatal variance argument is, essentially, an argument regarding the sufficiency of the State’s evidence. . .[A]s [the defendant’s] argument fundamentally presents an issue ‘related to the sufficiency of the evidence’ that he did not ‘mov[e] to dismiss at the proper time’, he has waived appellate review of this issue. Slip op. at 17.

The court declined to suspend the Rules of Appellate Procedure under Rule 2 to consider the merits of the arguments.

(2) The trial court admitted into evidence a recording of a 911 call where the caller stated that a defendant hit the victim’s truck with his vehicle “on purpose.” On appeal, the defendant argued this evidence amounted to improper lay opinion testimony. Trial counsel objected to this evidence at the time on hearsay and confrontation grounds but did not argue improper lay opinion. This argument was therefore waived on appeal. This defendant also failed to “specifically and distinctly” raise this argument for plain error review on appeal, and the court declined to review it. The court observed that purported violations of Rule 701 are reviewed for abuse of discretion and that plain error has not previously been applied to discretionary decisions of the trial court.

(3) Several other issues turned on whether the defendants could be considered sureties or accommodation bondsmen. Two of the defendants claimed error in the trial court’s refusal to instruct on a defense of lawful action by a surety; one defendant claimed a fatal defect in the indictment for failure to charge a crime; and one defendant claimed that a motion to dismiss for insufficiency as to a kidnapping conviction should have been granted based on the lawful authority of a surety to confine or restrain the subject of the bond. Article 71 of Chapter 58 of the General Statutes of North Carolina regulates the bail bond industry. The husband and wife argued that they met the definition of a surety in G.S. 58-71-1(10) as ones liable on the bail bond in the event of bail forfeiture. As a result, they argued that the common law right of sureties to arrest a principal on the bond who fail to appear justified their actions. The court rejected this argument, finding that the definition of surety in Chapter 15A of the General Statutes controls when the two definitions conflict, pursuant to G.S. 58-71-195 (so stating). Under that definition, the professional bondsman who posted the bond was the surety, but the defendants were not. While the husband-and-wife-defendants were liable to the professional bondsman if the bond were to be forfeited as indemnitors, they would not be liable to the State. “Simply put, agreeing to indemnify a bond does not a surety make.” Gettleman Slip op. at 26. The court also rejected the alternative argument by one of the defendants that she qualified as an accommodation bondman for the same reason—the defendant did not qualify as a surety on the bond. “We conclude that Defendants did not act lawfully, either as sureties or as accommodation bondsmen. Accordingly, we overrule Defendants’ issues brought on this basis.” Id. at 27. The unanimous court therefore affirmed all of the convictions.

(1) Trial court’s findings were insufficient to resolve ineffective assistance of counsel claim for failure to advise of immigration consequences and required remand for further hearing; (2) Where the trial court failed to analyze voluntariness of plea as instructed in earlier remand, the matter was again remanded for consideration of that issue

State v. Jeminez, ___ N.C. App. ___ (Dec. 15, 2020). In this Stokes County case, the defendant was an undocumented Mexican citizen living in North Carolina. In 2010, he was charged with felony drug offenses and pled guilty. Defense counsel advised the defendant that there “may” be immigration consequences as a result. In 2017, he was arrested by immigration authorities and filed a motion for appropriate relief (“MAR”), alleging ineffective assistance of plea counsel under Padilla v. Kentucky, 559 U.S. 356 (2010) (holding that when immigration consequences stemming from a criminal conviction are clear, defense counsel must correctly advise the defendant of those consequences as a matter of effective assistance of counsel). The defendant argued that his drug conviction clearly made him ineligible for cancellation of removal proceedings, subject to mandatory detention, and permanently inadmissible to the United States under federal law. He asserted that he would have not pled guilty but for the erroneous advice of counsel.

The trial court initially denied the MAR without hearing. The Court of Appeals granted certiorari and unanimously reversed, directing the trial court to conduct a hearing and determine whether the defendant’s plea was knowing and voluntary and whether the defendant received ineffective assistance of counsel. On remand, the trial court again denied the MAR following an evidentiary hearing. It determined that while trial counsel’s advice was objectively unreasonable, the defendant (as a person eligible for deportation with or without a criminal conviction) could not demonstrate prejudice. The trial court did not address whether the plea was knowing and voluntary. The defendant again sought appellate review, and the Court of Appeals again reversed.

Regarding deportability based on the drug conviction, the relevant federal statute (8 U.S.C. § 1227(a)(2)(B)(i)) did not apply to the defendant. That statute covers people lawfully admitted into the county who are convicted of a drug crime, and the defendant was never lawfully admitted. As such, there could be no deficient performance by trial counsel in failing to advise on the impact of this statute, and the trial court correctly determined that the defendant could not show prejudice.

The defendant also pointed to the federal statute imposing mandatory detention for aliens convicted of a drug offense (8 U.S.C. § 1226(c)(1)(A)) as basis for the ineffective assistance claim. That argument was not raised on appeal and was deemed abandoned.

However, the federal statute rendering one convicted of a drug offense ineligible for cancellation of removal (8 U.S.C. § 1229b(b)(1)) may have applied to the defendant. The matter was remanded to the trial court for it to consider the potential availability of cancellation of removal for the defendant. If the defendant can demonstrate that he would have qualified for cancellation of removal absent the conviction, then the application of that statute was “truly clear,” and trial counsel would have had a duty to correctly advise on its operation. If the trial court finds that such deficient performance occurred, it would then need to determine prejudice by analyzing whether the defendant would have refused to plead guilty and gone to trial but for the erroneous advice.

The drug conviction also clearly made the defendant permanently inadmissible to the county under 8 U.S.C. § 1182(a)(2)(A)(i)(II), and trial counsel’s failure to advise on this point was deficient. On remand, the trial court was instructed to consider prejudice by examining the impact of this erroneous advice on the defendant’s decision to plead guilty.

(2) The earlier remand by the Court of Appeals had directed the trial court to consider both whether the defendant’s plea was knowing and voluntary, and whether the defendant received ineffective assistance of counsel. The trial court failed to consider the voluntariness of the plea and was again directed to make findings and resolve that claim on remand.

Trial court erred in failing to adequately investigate potential conflict of interest; remand for hearing to determine whether actual conflict existed

State v. Lynch, ___ N.C. App. ___ (Dec. 15, 2020). In this Lincoln County case, the defendant’s trial counsel also represented the City of Lincolnton. Lincolnton police officers investigated and charged the defendant and testified at his trial. After the charge conference, the defendant expressed concerns about his attorney’s potential conflict of interest. Trial counsel responded that he had not communicated with the police department about the case and that he believed no conflict of interest existed. The defendant acknowledged he had been aware of this issue for at least one year. When asked by the trial court if he wished to question his attorney on the issue, the defendant declined. The trial court made no factual findings or legal conclusions on the matter. The jury returned guilty verdicts and the defendant appealed, alleging ineffective assistance of counsel based on his trial counsel’s conflict of interest.

The defendant’s right to counsel includes the right to conflict-free representation. Looking to the Rules of Professional Conduct for guidance, the court observed:

[A] conflict of interest that cannot be waived arises where law enforcement officers testify against a defendant and the defendant’s appointed counsel also advises the officers’ department or its members and, in effect, represents the officers who are prosecuting witnesses against the defendant. Slip op. at 8.

The trial court erred in failing to investigate the potential conflict of interest claim more thoroughly. While trial counsel represented to the court that he had no contact with the police department about this case, “the trial court failed to determine the extent to which [the defense attorney’s] role as city attorney required him to advise or represent the Lincolnton Police Department or its individual officers.” Id. This information was necessary to determine whether a conflict existed. The trial court also erred in placing the burden on the defendant to ask questions about the potential conflict:

[W]hen a trial court is made aware of a possible conflict of interest prior to the conclusion of a trial, ‘the trial court must ‘take control of the situation.’’ Where the trial court ‘knows or reasonably should know’ of ‘a particular conflict,’ that court must inquire ‘into the propriety of multiple representation.’ Id. at 5 (citations omitted).

The matter was therefore remanded for the trial court to conduct a proper inquiry into the potential conflict of interest. If the trial court determines that defense counsel actually represented or advised the police department or its officers “at any relevant time,” the defendant would be entitled to a new trial based on the non-waivable conflict of interest. If no conflict of interest is found to have existed, the defendant’s convictions will remain intact.

Search warrant affidavit was misleading and remaining portions of affidavit failed to establish probable cause; denial of motion to suppress reversed

State v. Moore, ___ N.C. App. ___ (Dec. 15, 2020). A Jones County deputy applied for a search warrant of defendant’s residence. In his affidavit in support, the deputy represented that he had observed drug transactions at the defendant’s residence. In fact, all the drug transactions had taken place away from the defendant’s home. The defendant was charged with marijuana offenses following execution of the search warrant and moved to suppress. He alleged the warrant lacked probable cause and sought a Franks hearing to establish false and misleading statements in the affidavit. The trial court first held a hearing on probable cause and determined it existed based on the allegations in the affidavit that a drug transaction had been observed on the defendant’s property. It then turned to the Franks issue and granted the defendant a hearing on the matter. The deputy-affiant testified that none of the buys occurred on the defendant’s property and that he was aware of this at the time he wrote the affidavit. The trial court denied the Franks motion as well, finding that the deputy’s statements were not false or misleading. The defendant pled guilty and appealed.

Where the defendant shows by a preponderance of evidence that false or misleading statements were intentionally made, or that such statements were made in reckless disregard of the truth, those portions of the affidavit must be excised from the affidavit. The affidavit will then be examined to determine whether the remaining portions establish probable cause. Franks v. Delaware, 438 U.S. 154 (1978). Here, the trial court’s findings at the Franks hearing were not supported by the evidence. In its initial ruling on the probable cause issue, “the trial court itself was misled by the statements in the affidavit.” Moore Slip op. at 16. In the words of the court:

Contrary to the trial court’s conclusion, [the officer’s] statements in his affidavit indicating that the alleged controlled drug buys and meetings between ‘Matt’ and the informant took place at 133 Harriet Ln. were false and his material omissions regarding the actual locations of the drug buys and meetings were misleading. Id. at 17.

Striking the false statements from the affidavit, the remainder of the allegations were insufficient to establish a nexus to the defendant’s residence supporting a finding of probable cause. They failed to establish that drugs were sold on or from the defendant’s residence and failed to allege any basis to believe the informant was reliable, among other deficiencies. The trial court’s order denying the motion to suppress was therefore reversed, the defendant’s plea vacated, and the matter remanded for further proceedings.

Judge Tyson dissented and would have affirmed the trial court.

(1) Drug overdose immunity provisions of G.S. 90-96.2 are not jurisdictional and are waived where not raised at trial; (2) Admission of lay opinion and field tests identifying substance as heroin was not plain error

State v. Osborne, ___ N.C. App. ___ (Dec. 15, 2020). In this case from Randolph County, the Court of Appeals initially vacated the defendant’s conviction for possession of heroin (discussed here). The North Carolina Supreme Court reversed, finding the evidence sufficient to support the drug conviction. State v. Osborne, 372 N.C. 619 (2019) (discussed here). On remand, the Court of Appeals was instructed to consider the applicability of G.S. 90-96.2 to the case. That statute provides “limited immunity” from prosecution for certain drug offenses when the evidence is discovered as a result of a call for assistance relating to a drug overdose. The Court of Appeals was also directed to consider plain error challenges to the admission of certain evidence that it previously left undecided.

(1) The defendant did not raise the issue of potential immunity at trial or on appeal. While subject matter jurisdictional defects cannot be waived and may be asserted at any time, the court determined that the immunity provisions of G.S. 90-96.2 are not jurisdictional and are therefore waivable:

 In sum, we hold that N.C. Gen. Stat. § 90-96.2(c) does not contain a clear indication that it is a jurisdictional requirement, and we therefore treat the provision as one granting traditional immunity from prosecution. This type of immunity must be asserted as a defense by the defendant in the trial court proceeding. The failure to raise the issue waives it and precludes further review on appeal. Slip op. at 9 (citations omitted).

The issue of immunity here was thus waived and the merits of the issue were not decided. The defendant could, however, assert ineffective assistance of counsel in post-conviction proceedings based on trial counsel’s failure to raise the issue. [Jamie Markham blogged about the immunity provisions of G.S. 90-96.2 here].

(2) The defendant also claimed the admission of field tests and lay opinions from police officers that the substance discovered in her room was heroin amounted to plain error. The Supreme Court’s opinion in the case acknowledged the “ample evidence” that the substance was heroin even without the challenged evidence, and the Court of Appeals agreed. Accordingly, the erroneous admission of field tests and lay opinion “is simply not the sort of fundamental error that calls into question the ‘fairness, integrity or public reputation of judicial proceedings,’” making a finding of plain error inappropriate. Id. at 11.

The defendant could be sentenced for only one assault when the factual basis for his plea gave no indication of a distinct interruption between incidents

State v. Robinson, ___ N.C. App. ___ (Dec. 15, 2020). In this Buncombe County case, the defendant pled guilty to assault on a female, violation of a domestic violence protective order, assault inflicting serious bodily injury, and assault by strangulation after an incident in which he held the victim captive and broke her jaw. The Court of Appeals granted the defendant’s petition for writ of certiorari to review the sufficiency of the factual basis for his plea to the three assault charges. The appellate court concluded that the State’s factual summary gave no indication of a distinct interruption between incidents that would support multiple assault convictions. To the contrary, the prosecutor’s summary referred to “the assault” and “the altercation” in the singular. Moreover, in light of the prefatory language in the relevant assault statutes indicating that they apply “[u]nless the conduct is covered under some other provision of law providing greater punishment,” the Court of Appeals concluded that the trial court was only authorized to enter judgment and sentence the defendant for the most serious assault—in this case the Class F assault inflicting serious bodily injury. The court remanded the matter to superior court with instructions to arrest judgment on the lesser assaults and to resentence the defendant on the remaining charges.

Judge Berger dissented, finding that under an analysis of the facts guided by State v. Rembert, 341 N.C. 173 (1995), the defendant’s conduct consisted of at least three separate and distinct assaults.

(1) Despite failing to make an offer of proof, defendant’s evidentiary challenge was preserved based on admission of the witness’s plea transcript and the context of defendant’s questions; (2) The trial court did not abuse its discretion by excluding evidence of witness’s Alford plea as confusing to the jury; (3) Defendant’s unpreserved SBM challenge did not warrant grant of certiorari and invocation of Rule 2

State v. Tysinger, ___ N.C. App. ___ (Dec. 15, 2020). This Davidson County case involved the sexual abuse of a girl at ages 10 and 13. The defendant was the child’s grandfather. In addition to assaulting the child, the defendant also abused the child’s mother, his daughter. The child’s mother reportedly traded sex with her daughter for drugs from the defendant. The child’s mother cooperated with the investigation. She pled guilty pursuant to Alford to attempted felony child abuse on the condition that she truthfully testify against the defendant at his trial. Defense counsel thoroughly questioned the child’s mother regarding her plea arrangement, but the trial court sustained an objection to questions relating to the Alford aspect of the plea. It ruled that the evidence that the child’s mother took an Alford plea was not relevant and, if it was relevant, that it “did not survive the [Rule 403] balancing test.” Slip op. at 4. The defendant was convicted of all counts at trial and sentenced to a minimum term of 1200 months. The trial court also ordered lifetime sex offender registration and satellite-based monitoring without objection from the defendant. He appealed, challenging the trial court’s decision to exclude evidence of the Alford nature of the plea. He also sought certiorari review of the SBM order, as he failed to preserve his direct appeal of that issue.

(1) The defendant’s objection to the evidentiary ruling was preserved. While the defendant failed to make an offer of proof by conducting voir dire of the witness, the plea transcript with the agreement between the State and the child’s mother was made a part of the record. Trial counsel’s extensive questioning about the plea deal also made the objection obvious from context, thus preserving the issue for appellate review.

(2) The defendant claimed that the Alford plea was relevant to the credibility of the witness and that the trial court erred in sustaining the objection to that line of questioning, causing prejudicial error. The court assumed that the Alford nature of the plea was relevant evidence, but found no abuse of discretion in the trial court’s exclusion of the evidence under Rule 403 of the North Carolina Rules of Evidence as potentially confusing to the jury:

Under the circumstances of this case, we agree with the trial court that evidence [the] mother entered an Alford plea would serve to confuse the jury regarding the legal details of her plea. In particular, someone would have to explain the meaning of an Alford plea, and [the] mother’s own understanding of the exact meaning of an Alford plea may have been different that the technical legal meaning or the intent Defendant assumes she had. Slip. op. at 14.

(3) The defendant failed to object on any basis to the order imposing SBM at the time of its entry and failed to give written notice of appeal of the order (as required for civil matters such as SBM orders). He sought review via petition for writ of certiorari and asked the court to invoke Rule 2 of the North Carolina Rules of Appellate Procedure to reach the merits of his unpreserved argument. The court declined both requests and dismissed the argument, finding the circumstances did not warrant the “extraordinary steps” of both granting certiorari and invoking Rule 2.

Judge Murphy wrote separately to concur. According to him, the trial court erred in finding the Alford plea evidence irrelevant. The trial court further erred in conducting a Rule 403 balancing test after it found the evidence irrelevant and excluding the evidence on the basis of Rule 403 was an abuse of discretion. However, these errors were not prejudicial under the circumstances of the case.

(1) The defendant had access to controlled substances by virtue of her employment such that she could be convicted of embezzlement of a controlled substance under G.S. 90-108(a)(14); (2) There was sufficient evidence that CVS was a “registrant” within the meaning of G.S. 90-87(25); (3) The trial court did not commit plain error by failing to instruct the jury on the statutory definition of “registrant”

State v. Woods, ___ N.C. App. ___ (Dec. 15, 2020). In this Mecklenburg County case, a jury found the defendant guilty of embezzlement of a controlled substance by an employee of a registrant or practitioner under G.S. 90-108(a)(14). While employed as a pharmacy technician at CVS, the defendant accepted $100 in exchange for processing a fraudulent prescription for Oxycodone. (1) The defendant argued on appeal that the evidence did not show embezzlement because she never lawfully possessed the prescriptions, which were obtained by fraud. The Court of Appeals disagreed, concluding that under the statute under which the defendant was convicted, G.S. 90-108(a)(14), the defendant had the requisite “access to controlled substances by virtue of [her] employment” in that she was allowed to take prescriptions filled by the pharmacist from the pharmacy’s waiting bins to the customers. (2) The court also rejected the defendant’s argument that the trial court erred in denying her motion to dismiss based on the State’s failure to establish that CVS was a “registrant” within the meaning of G.S. 90-87(25). Though the trial testimony did not clearly and specifically identify CVS as a registrant of the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services, it did indicate that CVS was “a registrant that is authorized by law to dispense medications,” and therefore permitted a reasonable inference that the defendant committed the crime. (3) Finally, the Court of Appeals concluded that the trial court did not commit plain error by not instructing the jury on the statutory definition of “registrant.” The defendant did not request the instruction at trial, the trial court’s instruction mirrored the language of G.S. 90-108(a)(14), and the defendant failed to demonstrate any prejudice stemming from the alleged error. A dissenting judge would have concluded that the defendant did not embezzle the controlled substance as charged because she obtained it through fraudulent means, and therefore did not possess it lawfully as required by our courts’ traditional understanding of embezzlement.

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