This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on December 29, 2022. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Defendant’s appeal was timely filed within 14 days of order from trial court; probation revocation hearing evidence not subject to Fourth and Fourteenth Amendment analysis.
State v. Boyette, 2022-NCCOA-904, ___ N.C. App. ___ (Dec. 29, 2022). In this Caldwell County case, the Court of Appeals denied the state’s motion to dismiss defendant’s appeal as untimely, but found no error with the trial court’s decision to revoke defendant’s probation for violations related to a search of his truck.
In May of 2020, defendant was pulled over after sheriff’s deputies observed him cross the center line while driving 55 mph in a 35 mph zone. During the traffic stop, the deputies determined that defendant was on probation for manufacturing methamphetamine and possessing stolen goods, and was subject to warrantless searches. The deputies searched defendant and his truck, finding a shotgun, smoking pipes and a baggie containing methamphetamine. Defendant’s probation officer filed violation reports with the trial court; the trial court subsequently revoked defendant’s probation and activated his sentences, leading to defendant’s appeal.
The Court of Appeals first reviewed the state’s motion to dismiss defendant’s appeal as untimely, applying State v. Oates, 366 N.C. 264 (2012), as controlling precedent for criminal appeals. Slip Op. at 7-8. The court explained that Rule of Appellate Procedure 4 requires an appeal to be filed either (1) orally at the time of trial, or (2) in writing within 14 days of the entry of the judgment or order. In the present case, the trial court announced its decision to revoke defendant’s probation on April 30, 2021, but did not enter an order until May 24, 2021, a delayed entry similar to the circumstances in Oates. Defendant filed a written notice of appeal on May 25, 2021, easily satisfying the 14-day requirement.
Turning to the substance of defendant’s appeal, the court noted that the Fourth and Fourteenth Amendment protections and formal rules of evidence do not apply in a probation revocation hearing. Id. at 9. As a result, defendant’s arguments that the evidence obtained by searching his truck should have been suppressed were invalid, and the trial court did not err by using this evidence as the basis for revocation of his probation.
Judge Jackson concurred in part A, the denial of state’s motion to dismiss, but concurred only in the result as to part B, the evidence found in defendant’s truck. Id. at 10.
Specific description of lawful duty being performed by officer not necessary for charge of speeding to elude arrest.
State v. McVay, 2022-NCCOA-907, ___ N.C. App. ___ (Dec. 29, 2022). In this Mecklenburg County case, the Court of Appeals found no error by the trial court when denying defendant’s motion to dismiss for insufficient evidence.
In November of 2016, a Charlotte-Mecklenburg police officer received a call from dispatch to look out for a white sedan that had been involved in a shooting. Shortly thereafter, the officer observed defendant speed through a stop sign, and the officer followed. Defendant continued to run stop signs, and after the officer attempted to pull him over, defendant led officers on a high-speed pursuit through residential areas until he was cut off by a stopped train at a railroad crossing. Defendant was indicted and eventually convicted for felonious speeding to elude arrest.
On appeal, defendant argued that the trial court erred by failing to dismiss the charge, because the state did not admit sufficient evidence showing the officer was lawfully performing his duties when attempting to arrest defendant. The crux of defendant’s argument relied on the language of the indictment, specifically that the officer was attempting to arrest defendant for discharging a firearm into an occupied vehicle. Although defendant argued that evidence had to show this was the actual duty being performed by the officer, the court explained that the description of the officer’s duty in the indictment was surplusage. Although the state needed to prove (1) probable cause to arrest defendant, and (2) that the officer was in the lawful discharge of his duties, it did not need to specifically describe the duties as that was not an essential element of the crime, and here the court found ample evidence of (1) and (2) to sustain the conviction. Slip Op. at 9-10. The court also found that defendant failed to preserve his jury instruction request on the officer’s specific duty because the request was not submitted in writing.
Nature of location is an essential element for G.S. 14-277.2 possession of a dangerous weapon at a demonstration charge.
State v. Reavis, 2022-NCCOA-909, ___ N.C. App. ___ (Dec. 29, 2022). In this Chatham County case, the Court of Appeals overturned defendant’s conviction for possession of a firearm at a demonstration, finding that the indictment failed to specify the type of land where the violation took place.
Defendant attended a protest in Hillsborough over the removal of a confederate monument in 2019. During the protest, an officer observed defendant carrying a concealed firearm. Defendant was indicted for violating G.S. 14-277.2, and at trial moved to dismiss the charges, arguing that the misdemeanor statement of charges was fatally defective for not specifying the type of location for the offense, specifically the required location of a private health care facility or a public place under control of the state or local government. Defendant’s motion was denied and she was convicted of the misdemeanor.
Reviewing defendant’s appeal, the court agreed with defendant’s argument that her indictment was defective. Although the state moved to amend the location in the statement of charges, and the superior court granted that motion, the Court of Appeals explained that this did not remedy the defect. The court explained that “if a criminal pleading is originally defective with respect to an essential element . . . amendment of the pleading to include the missing element is impermissible, as doing so would change the nature of the offense.” Slip Op. at 8-9. The court looked to analogous statutes and determined that the specific type of location for the offense was an essential element of G.S. 14-277.2, and that the state had failed to specify the location in either the statement of charges or the police report provided with the statement. Instead, the statement and police report simply listed the street address and described the location as “[h]ighway/[r]oad/[a]lley/[s]treet/[s]idewalk[,]” failing to specify the essential element related to the type of location. Id. at 16-17.
Judge Inman concurred only in the result.
Probable cause supported search of defendant’s cellphone found in vehicle linked to home invasion.
State v. Byrd, 2022-NCCOA-905, ___ N.C. App. ___ (Dec. 29, 2022). In this Johnson County Case, defendant appealed the denial of his motion to suppress evidence obtained from his cellphone. The Court of Appeals affirmed the trial court’s denial of defendant’s motion.
Defendant was convicted of burglary, robbery, kidnapping, conspiracy, and habitual felony status for a home invasion in September of 2018. The evidence supporting defendant’s conviction came from a search of his cellphone found in a vehicle tied to the home invasion. Defendant argued at trial that the search warrant for his cellphone was not supported by probable cause, but the trial court denied defendant’s motion to suppress.
The Court of Appeals explained that probable cause to support the warrant came from the totality of the circumstances around the cellphone. Here, the cellphone was found in a car identified by an eyewitness as leaving the scene; the car was owned by defendant’s cousin. This same cousin told law enforcement that defendant was the owner of a white LG cellphone, matching the phone found in the car after a search. The car also contained a distinctive Tourister case stolen from the home in question. The court found that “[u]nder the totality of the circumstances, these facts show a nexus between [d]efendant’s white LG cellphone and the home invasion.” Slip Op. at 8.
Admission of police officers’ lay opinion on defendant’s appearance in surveillance footage was not error.
State v. Taylor, 2022-NCCOA-910, ___ N.C. App. ___ (Dec. 29, 2022). In this Nash County case, defendant appealed his convictions for discharging a weapon into occupied property inflicting serious injury and possession of a firearm by a felon, arguing that the trial court erred by (1) allowing lay opinion testimony by police officers, (2) denying defendant’s motion to dismiss the discharging a firearm charges, and (3) admitting testimony that defendant was not cooperative during the investigation. The Court of Appeals found no error.
Defendant was convicted for the 2017 shooting of a home in Rocky Mount that injured the homeowner. The homeowner and victim of the injuries provided police with surveillance video from the home that showed a man matching the appearance of defendant, as well as a vehicle police later found defendant driving. At trial, the state offered testimony from several police officers identifying defendant in the surveillance footage. Defendant objected but the trial court overruled these objections. Defendant did not object to the testimony from one officer that defendant did not answer questions from a detective.
The Court of Appeals reviewed issue (1) in light of Rule 701, using the rubric from State v. Belk, 201 N.C. App. 412 (2009), explaining that the testimony was admissible as the officers had encountered defendant before and the quality of the video was low, so the identifying features highlighted by the officers weighed in favor of admissibility. Slip Op. at 8-9. Turning to issue (2), defendant argued that the state failed to put forward evidence showing a bullet he fired struck the victim; the court disagreed, noting that surveillance footage showed a person identified by witnesses as defendant standing near the home and firing shots in the direction of the house. The only other person visible on the footage did not appear to fire a shot, meaning evidence supported the inference that defendant fired a bullet that hit the victim. Finally, considering (3), the court did not find plain error, as the prosecutor did not ask the witness to comment on defendant’s lack of answers, and did not rely on the testimony to establish any element of the crime or defendant’s ultimate guilt.
Defense counsel’s statements during closing argument represented admissions of guilt requiring consent from defendant.
State v. Hester, 2022-NCCOA-906, ___ N.C. App. ___ (Dec. 29, 2022). In this Duplin County case, the Court of Appeals remanded the case to the trial court for an evidentiary hearing on whether defendant consented to defense counsel’s admissions of guilt.
Defendant was charged with breaking or entering, larceny, and possession of stolen goods after a series of break-ins in 2017 at a power plant that was not operational. At trial, defense counsel exhibited issues with hearing loss. Defendant also noted the issue of hearing loss before testifying in his own defense, although the trial court did not take any action on the information. During closing arguments, defense counsel said “Let me level with you. I agree it’s not good to be caught in the act while being in somebody else’s building without consent,” and mentioned “caught” and “in the act” several times, referring to defendant being on the power plant property. Slip Op. at 5.
Reviewing defendant’s arguments on appeal, the court agreed that defense counsel’s statements that defendant possessed stolen keys from the plant and entered the plant’s warehouse without permission amounted to admissions of guilt for lesser included misdemeanors of breaking or entering and possession of stolen goods. The court noted that under State v. Harbison, 315 N.C. 175 (1985), and subsequent precedent, a violation of the defendant’s constitutional right to counsel occurs whenever defense counsel expressly or impliedly admits guilt without the defendant’s consent, and this violation does not require a showing a prejudice to justify a new trial. Id. at 8-9. Here, defense counsel made admissions of guilt, but the record did not reflect any consent from defendant. As a result, the Court of Appeals remanded to the trial court for an evidentiary hearing on whether defendant consented in advance to these concessions of guilt.
Defendant’s act of solicitation for first-degree murder did not require full disclosure of plans for killing victims; defendant’s argument of a fatal variance in jury instruction was actually instructional error; references in closing argument insinuating defendant might commit a mass murder represented error but not prejudicial error.
State v. Norris, 2022-NCCOA-908, ___ N.C. App. ___ (Dec. 29, 2022). In this Randolph County case, the Court of Appeals upheld defendant’s conviction for solicitation to commit first-degree murder, finding no prejudicial error by the trial court.
In 2018, defendant, a high school student, confessed to his girlfriend that he had homicidal thoughts towards several of his fellow students, and attempted to recruit his girlfriend to help him act on them. His girlfriend showed the messages they exchanged to her mother and the school resource officer, leading to further investigation that found defendant had a cache of guns and knives, as well as a detailed list of persons he wished to kill and methods he would use. When the matter came to trial, the state offered testimony from 11 of the 13 persons on the kill list, and during closing arguments made reference to the “current events” that were presumably mass shootings at high schools. Defendant was subsequently convicted in 2020.
Reviewing the appeal, the court first considered (a) defendant’s motion to dismiss for insufficient evidence, reviewing whether defendant solicited his girlfriend for the crime. The court found sufficient evidence of solicitation, explaining that solicitation is an “attempt to conspire,” and the offense does not require fully communicating the details of the plan. Instead, once defendant proposed the killings he had planned to his girlfriend, and attempted to recruit her to assist, the offense was complete, despite the fact that he did not fully share his detailed plans. Slip Op. at 12-13.
The court next considered (b), dismissing defendant’s argument that the indictment fatally varied from the jury instruction; the court found that this was actually an attempt to present an instructional error “within the Trojan horse of a fatal variance.” Id. at 15. Considering (c), the court disagreed with defendant’s allegation that Rules of Evidence 401 and 402 barred admission of defendant’s drawings and notes of the Joker and weapons, and testimony from 11 of the potential victims. The drawings were relevant to show defendant’s state of mind and evaluate the nature of the potential crime, and the testimony was relevant to show the potential victims were real people and that defendant had the specific intent to commit the crime. Id. at 17-18. The court also considered (d) whether Rule of Evidence 403 barred admission of this evidence as prejudicial, finding no abuse of discretion as “the evidence served a probative function arguably above and beyond inflaming [the jury’s passions].” Id. at 20.
Considering the final issue (e), whether the trial court should have intervened ex mero moto during the state’s closing argument, the court found error but not prejudicial error. The court found error in the state’s closing argument when the prosecutor “appealed to the jury’s sympathies by describing the nature of the Joker and insinuating that [d]efendant was planning a mass shooting.” Id. at 25. The court presumed that these statements were intended to suggest that defendant’s conviction would assist in preventing another mass shooting, but noted that they did not rise to the level of prejudicial error due to the other factual details in the argument, and the “multiple items of physical evidence and segments of testimony evidencing [d]efendant’s intent.” Id. at 28.
Defendant did not assert a constitutional right to competency hearing; defendant waived statutory right to competency hearing by failing to assert right at trial.
State v. Wilkins, 2022-NCCOA-911, ___ N.C. App. ___ (Dec. 29, 2022). In this Caswell County case, Defendant appealed his conviction for drug possession charges, arguing error by the trial court for the lack of a competency evaluation and admission of testimony regarding his silence at a traffic stop. The Court of Appeals found no error.
Defendant was in the front seat of an SUV stopped in 2018 under suspicion of throwing contraband into a prison yard. A search of the vehicle found two footballs cut open and filled with drugs; defendant was silent during the stop and search of the vehicle. While awaiting trial, defense counsel moved for a competency hearing; the trial court entered an order finding defendant’s competency in question, and ordering an evaluation of defendant. However the defendant was never evaluated and no finding was ever entered as to his competency, as he was instead released on bail. By the time defendant reached trial in 2021, he had new counsel, who did not assert the right to a competency evaluation, and defendant was convicted of drug possession.
Reviewing defendant’s appeal, the court noted that defendant never objected to the lack of a hearing or evaluation on his competency at trial, and this represented waiver of the statutory right to a competency evaluation and hearing. Defendant failed to assert a due process clause claim for the competency hearing, preventing consideration of the constitutional issue. The court explained that the statutory right to a competency hearing comes from G.S. 15A-1002, and under State v. Young, 291 N.C. 562 (1977), “our Supreme Court repeatedly has held that ‘the statutory right to a competency hearing is waived by the failure to assert that right at trial.’” Slip Op. at 4, quoting State v. Badgett, 361 N.C. 234 (2007). Reviewing defendant’s objection to the admission of testimony about his silence, the court found no plain error, and noted it was unclear if the issue was even reviewable on appeal. Id. at 9-10.
Judge Inman dissented by separate opinion, and would have granted defendant’s right to competency hearing. Id. at 11.
Despite the lack of canine alert, officers had probable cause to search vehicle based on totality of the circumstances.
State v. Aguilar, 2022-NCCOA-903, ___ N.C. App. ___ (Dec. 29, 2022). In this Union County case, defendant appealed his conviction for trafficking by possession and transportation of heroin, arguing error in the denial of his motion to suppress the results of a warrantless search of his vehicle. The Court of Appeals found no error.
In January of 2020, the Union County Sheriff’s Office was observing several individuals involved in drug trafficking based on information from two confidential informants. Based on the observations and information received, officers ended up detaining defendant and searching his vehicle, finding heroin after searching the vehicle. Although a canine unit was present, the dog did not alert on a search around the perimeter of the car. Despite the lack of alert, the officers believed they had probable cause based on “the tips provided by two unrelated confidential informants and officers’ observations that confirmed these specific tips.” Slip Op. at 4. Defendant subsequently pleaded guilty to charges of trafficking heroin but reserved his right to appeal the dismissal of his motion to suppress.
The court walked through each challenged finding of fact and conclusion of law, determining that none of the issues highlighted by defendant represented error. In particular, the court explained that the lack of an alert from the canine unit did not prevent the officers from having probable cause, and noted “[d]efendant has cited no case, either before the trial court or on appeal, holding that officers cannot have probable cause to search a vehicle if a canine search is conducted and the canine fails to alert . . . [n]or did we find such a case.” Id. at 29. Because the totality of the circumstances supported probable cause, the court found no error in the trial court’s conclusion.