This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on December 3, 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.
Destruction of evidence after defendant’s conviction did not justify vacating defendant’s conviction because defendant could not show State acted in bad faith.
State v. Brown, COA24-197, ___ N.C. App. ___ (Dec. 3, 2024). In this Durham County case, defendant made a post-conviction motion arguing the unlawful destruction of evidence from his case justified dismissing his conviction for robbery with a firearm. The Court of Appeals disagreed, affirming the trial court’s denial of his motion.
After defendant’s conviction for robbery with a firearm in 2014, the North Carolina Center on Actual Innocence investigated his case and requested evidence, including fingerprints from the crime scene, from the Durham Police Department and Durham County Clerk of Superior Court. The clerk’s office responded that the evidence had been destroyed, leading defendant to file a motion for hearing regarding destruction of evidence in violation of G.S. 15A-268. In March of 2022, the trial court determined that the clerk’s office destroyed evidence that should have been preserved during defendant’s incarceration, ordering a hearing on the matter. In June of 2022, the matter came for hearing before a different trial judge than the one who initially ordered the hearing, resulting in an order denying defendant’s motion.
On appeal, defendant argued that the trial court erred by (1) failing to include findings of fact or conclusion of law in the order, and (2) failing to consider his due process argument. Taking up (1), the Court of Appeals disagreed that the lack of findings precluded meaningful review, noting G.S. 15A-268 “does not expressly require that the trial court make specific findings of fact or conclusions of law.” Slip Op. at 4. Because the statute did not require specific findings of fact and conclusions of law, the court declined to require those of the order in this case.
Moving to (2), the court explained that defendant’s argument presumed the trial judge issuing the order was doing so based on the State’s arguments at the hearing, finding that “[G.S.] 15A-268 did not require preservation of the evidence destroyed by the Durham Clerk’s Office.” Id. at 5. The court did not agree with this interpretation, explaining that assumption would mean the trial judge issuing the order was overruling the trial judge who ordered the hearing on the matter. Instead, the court concluded that the trial judge’s order “found that Defendant’s due process rights were not violated by the evidence destruction and, accordingly, that Defendant’s requested remedy was not required.” Id. at 6. The court went on to discuss the burden on a defendant arguing under G.S. 15A-268, applying the reasoning from State v. Lewis, 365 N.C. 488 (2012), to conclude that “the same burden (i.e., showing bad faith by the State) applies for showing a due process violation based on the destruction of evidence after trial or after a defendant’s conviction.” Slip Op. at 7.
[These State v. Brown cases are not related.]
Admission of hour-long child victim interview under Rule 803(4) was proper; defense counsel’s failure to object to photo did not represent ineffective assistance.
State v. Brown, COA24-261, ___ N.C. App. ___ (Dec. 3, 2024). In this Rowan County case, defendant appealed his convictions for statutory rape of a child fifteen years old or younger, statutory sex offense with a child fifteen years old or younger, and indecent liberties with a child, arguing (1) error in admitting an hour-long video interview of the victim as substantive evidence, and (2) ineffective assistance of counsel. The Court of Appeals found no error and no ineffective assistance of counsel.
In the fall of 2017, defendant began having sexual contact with the victim, a fifteen-year-old girl who was friends with his daughter. The victim attended church with defendant’s family and frequently spent the night at his house. Eventually the relationship progressed to intercourse, and defendant told the victim he had received a vasectomy. Law enforcement learned of the relationship, and the victim was taken to a child advocacy center for a recorded interview with a forensic interviewer. At trial, the State introduced the hour-long interview as Exhibit 2, and the trial court overruled defendant’s objection to hearsay, ruling the video was admissible under Rule of Evidence 803(4) (Statements for Purposes of Medical Diagnosis or Treatment). The State also introduced a photo from defendant’s phone of a “home vasectomy test” as Exhibit 3, and referenced this photo during closing argument to support the idea defendant was showing the photo to the victim to alleviate her concerns about intercourse. Defendant did not object to the photo or the closing argument.
Taking up (1), the Court of Appeals examined the relevant precedent for Rule 803(4), including State v. McLaughlin, 246 N.C. App. 306 (2016), a case where “statements made by a child victim during a videotaped interview to a nurse at a child advocacy center were admissible hearsay,” and several other cases that defined the lines of admissibility for child victim interviews. Slip Op. at 11. After establishing the bounds of the hearsay exception, the court explored the interview in question, concluding that the victim knew she was giving statements for medical diagnosis or treatment, the interview occurred along with a medical examination, the interviewer’s questions were primarily for attending to the victim’s health and safety, and “[the victim’s] statements were reasonably pertinent to her diagnosis and treatment.” Id. at 16. These factors supported admitting the recording under Rule 803(4), and the court found no error.
Moving to (2), defendant argued that his counsel was ineffective because they failed to object to the admission of Exhibit 3 and the references to it during the State’s closing argument. The court disagreed, explaining that defendant could not demonstrate prejudice because admission of the photo was proper, and an adequate evidentiary basis supported the closing argument (i.e., the admitted photo along with supplementary testimony).
Deputies had reasonable suspicion for traffic stop based on inoperable tag light and suspended license, and K-9 search did not unconstitutionally prolong stop.
State v. Burnett, COA23-944, ___ N.C. App. ___ (Dec. 3, 2024). In this Orange County case, defendant appealed his conviction for possession of a firearm by a felon, arguing error in denying his motion to suppress the search of his vehicle. The Court of Appeals found no error in denying the motion to suppress.
In October of 2020, a sheriff’s deputy noticed a vehicle with an inoperable tag light at a gas station; after running the license plate, the deputy determined the registered owner had a suspended license. It was unclear to the deputy who was operating the vehicle. After the deputy initiated a traffic stop, defendant’s daughter turned out to be driving the vehicle, and she admitted to the sheriff’s deputies that she did not have a license. Defendant was in the front seat and deputies observed that he appeared intoxicated. The deputies prepared a citation for the driver of the vehicle and asked the occupants to step out while a K-9 sniffed the vehicle. The K-9 alerted on the passenger side, and defendant admitted that his friend had brought marijuana into his vehicle two days ago, but that it had been thrown out. After a search of the vehicle no narcotics were found, but a gun was found in the passenger side glovebox. At trial, defendant filed a motion to suppress the search, and the trial court denied this motion after a hearing. Defendant entered an Alford plea and reserved his right to appeal.
The Court of Appeals first examined defendant’s challenged findings of fact, walking through the seven written findings in turn. The court found competent evidence in the record, primarily from the body-worn cameras of the officers during the traffic stop. Noting that “[t]he trial court was in the best position to resolve any evidentiary conflict in its factual findings, even if a different conclusion could have been reached,” the court found each finding was supported by competent evidence and binding on appeal. Slip Op. at 8.
Moving to the challenged conclusions of law, the court noted defendant’s challenges raised three primary issues related to the stop: (i) reasonable suspicion for the original stop, (ii) reasonable suspicion to extend the stop, and (iii) the stop was illegally prolonged. Considering (i), the court found reasonable suspicion to stop the vehicle based on the inoperable tag light and suspended license of the registered owner, as the deputy did not know who was driving. Taking up (ii), the court explained that before the original purpose for the stop was completed, defendant’s daughter admitted she was driving without a license, which “provided the deputies with additional reasonable and articulable suspicion to justify further delay of the traffic stop.” Id. at 13 (cleaned up). Finally in (iii), the court explained that the K-9 was on the scene from the initial traffic stop, and was deployed while one deputy was still addressing the citation for driving without a license. The court concluded “the use of the K-9 did not unconstitutionally prolong the stop.” Id. at 15.
Competent evidence supported the conclusion that detective had reasonable suspicion when pulling over vehicle containing narcotics.
State v. Chambers, COA23-1057, ___ N.C. App. ___ (Dec. 3, 2024). In this Mecklenburg County case, defendant appealed his convictions for trafficking in cocaine, arguing plain error in denying his motion to suppress the results of a traffic stop, or alternatively, ineffective assistance of counsel for failing to object to admission of the evidence. The Court of Appeals found no error and no ineffective assistance of counsel.
In August of 2017, a confidential informant told Charlotte-Mecklenburg Police Department detectives that defendant was selling heroin in Charlotte and gave defendant’s address and vehicles he used to distribute narcotics. After surveilling defendant and obtaining a search warrant for his residence and person, officers observed a vehicle with defendant as the passenger moving what was suspected to be a package of narcotics. A detective initiated a stop, and a K-9 walkaround resulted in an alert for the odor of narcotics. A subsequent search turned up cocaine, forming the basis of the charges. Before trial, defense counsel filed a motion to suppress, but subsequently withdrew arguments “regarding the detention of Defendant and regarding the search of the car,” going forward only with the issue of whether officers had probable cause to stop the vehicle. Slip Op. at 2. The trial court denied the motion to suppress, and defense counsel did not object at trial to the admission of the evidence from the stop.
The Court of Appeals took up defendant’s arguments, noting that to succeed on either alternative defendant had to show error. Here the court found no error, as the trial court’s findings of fact were supported by competent evidence, and “specific and articulable facts” supported the detective’s reasonable suspicion when initiating a stop of the car. Id. at 13.
Substitute analyst’s opinion testimony based on “testimonial hearsay” in lab report implicated defendant’s Confrontation Clause rights under Smith v. Arizona.
[An in-depth discussion of this case by Prof. Phil Dixon is available here.]
State v. Clark, COA23-1133, ___ N.C. App. ___ (Dec. 3, 2024). In this Avery County case, defendant appealed his conviction for possession with intent to sell and deliver methamphetamine, arguing his Confrontation Clause rights were implicated because a testifying expert relied on another analyst’s statements in a lab report when stating his opinions. The Court of Appeals concluded it was error to allow the opinion testimony, and vacated defendant’s judgment, remanding for a new trial.
In August of 2020, defendant was searched as a condition of his probation, and officers seized a crystalline substance. The substance was tested by a forensic analyst who determined it was methamphetamine, and the analyst created a lab report for the State. When defendant came for trial, the original analyst was not available to testify, so the State offered a substitute analyst who based his opinions on the lab report. The substitute analyst did not perform any testing on the crystalline substance himself.
On appeal, defendant argued that his Confrontation Clause rights were violated because he was unable to cross-examine the original analyst whose lab report formed the foundation of the case against him. The Court of Appeals referenced the recent decision Smith v. Arizona, 602 U.S. 779 (2024), where the Supreme Court held that “opinion testimony of a surrogate expert who relies upon the ‘testimonial hearsay’ statements contained in a lab report or notes prepared by another analyst who tested the substance in question implicates a defendant’s right under the Confrontation Clause.” Slip Op. at 4. The court noted the applicability to the current case, as the substitute analyst relied on lab reports created solely for the trial that were testimonial in nature under State v. Craven, 367 N.C. 51 (2013). Slip Op. at 8. Because the substitute analyst did not independently test the substance and relied upon the lab report’s statements that were “hearsay and testimonial in nature,” defendant’s rights under the Confrontation Clause were implicated. Id. at 9.
Evidence found in car supported defendant “kept” the vehicle for keeping or selling controlled substances; MAR granted because indictment date of habitual felon charge predated principal felony charge.
State v. Garmon, COA 23-544, ___ N.C. App. ___ (Dec. 3, 2024). In this Union County case, defendant appealed his conviction for maintaining a vehicle for keeping or selling controlled substances, arguing error in denying his motion to dismiss, and filed a motion for appropriate relief (MAR) challenging the indictment for habitual felon status. The Court of Appeals found no error, but granted defendant’s MAR, vacating and remanding for resentencing.
In October of 2020, the Union County Sheriff’s Office received a tip from a confidential informant that a silver Hyundai car with body damage was involved in drug trafficking. The vehicle, with defendant as the driver, was subsequently pulled over and defendant admitted during the stop he did not have a driver’s license. A K-9 walkaround was conducted, and the K-9 alerted for narcotics, leading to the discovery of various controlled substances. Defendant was convicted of drug trafficking, possession of drug paraphernalia, and maintaining a vehicle for keeping or selling controlled substances, and defendant pleaded guilty to habitual felon status.
Defendant argued that insufficient evidence showed he (1) kept or maintained the silver Hyundai, and (2) did so for keeping or selling controlled substances. Exploring (1), the Court of Appeals looked to the meaning of “kept or maintained” in the applicable caselaw, determining that no evidence supported defendant “maintained” the vehicle. Slip Op. at 6-7. Noting that “there is no specific period of possession that indicates a car was or was not ‘kept,’” the court looked to the circumstances, as officers found “a hotel receipt from the day before, as well as mail and a social security card with Defendant’s name on them,” indicating sufficient possession to represent keeping the vehicle. Id. at 7-8. Reaching (2), the court noted the drug paraphernalia found “scattered about the car” and the drug reside inside supported a conclusion that defendant was using the vehicle for keeping or selling drugs. Id. at 12.
The court then took up defendant’s MAR, where defendant contended “the habitual felon indictment predate[d] the offense date of the felonies for which he was being tried [and] the trial court thus lacked subject matter jurisdiction.” Id. at 13. The court explained that defendant’s indictment for being a habitual felon was dated January 14, 2020. The principal felony in this case was committed on October 12, 2020, and defendant was not indicted for the felony until January 14, 2021. The court looked to State v. Ross, 221 N.C. App. 185 (2012), for the conclusion that there was no pending prosecution for the habitual felon indictment to attach to, and “the trial court lacked jurisdiction over the habitual felon charge and erred by accepting Defendant’s habitual felon guilty plea.” Slip Op. at 15.
Judge Hampson dissented and would have held that the State’s evidence did not establish defendant “kept or maintained” a vehicle for keeping or selling controlled substances.
No prejudicial error when trial court instructed jury that victim’s injuries were serious as a matter of law and a glass bottle was a deadly weapon as a matter of law.
State v. Pettis, COA24-358, ___ N.C. App. ___ (Dec. 3, 2024). In this New Hanover County case, defendant appealed his conviction for assault with a deadly weapon inflicting serious injury, arguing error in peremptorily instructing the jury that, as matters of law, a glass bottle is a deadly weapon and the victim’s injury was a serious injury. The Court of Appeals found no reversible error.
The charge against defendant resulted from a bar fight in Wilmington where defendant struck the victim with a glass beer bottle, causing a cut that required 35 stitches. At the charge conference, “the trial court informed counsel that it planned on instructing the jury that the victim’s injury was serious as a matter of law and that a glass beer bottle is a deadly weapon as a matter of law.” Slip Op. at 2. Defense counsel only objected to the instruction on the glass bottle as a deadly weapon.
Taking up defendant’s arguments, the Court of Appeals first considered whether it was plain error to consider the cut a serious injury as a matter of law. The court dispensed with this argument by determining defendant “failed to meet his burden of showing that the jury probably would have found that the victim’s facial laceration requiring thirty-five stitches was not a serious injury.” Id. at 4. Moving to the glass bottle, the court looked to State v. Morgan, 156 N.C. App. 523 (2003), and concluded that in the circumstances of this case, the bottle represented a deadly weapon and it was not error to instruct the jury as such.
Admitting components of exhibit a second time outside the presence of the jury did not represent error where original exhibit was admitted properly and parties treated exhibit as admitted.
State v. Plaza, COA 24-311, ___ N.C. App. ___ (Dec. 3, 2024). In this Wake County case, defendant appealed his convictions for first-degree murder and possession of a firearm by a felon, arguing error in admitting evidence outside the presence of the jury and by allowing the jury to view the improperly admitted evidence. The Court of Appeals found no error.
In January of 2021, the victim was shot with a nine-millimeter handgun outside her home. Police later found defendant with a nine-millimeter handgun and wearing clothing that matched the description of the shooter. A forensic firearms analyst linked defendant’s handgun to the bullets recovered at the scene. During defendant’s trial, the State offered Exhibit 12, a box containing a pistol, a magazine, and bullets, and the items were identified by a detective testifying about the case; defense counsel did not object. A few minutes after the trial court accepted Exhibit 12, the prosecutor requested to publish by reference the contents of the box as Exhibits 12-A (the pistol), 12-B (the magazine), and 12-C (the bullets). Defense counsel did not object to the publication of the components to the jury. Later, during a recess, the prosecutor asked the trial court to move Exhibits 12-A, 12-B, and 12-C into evidence, and defense counsel did not object. Defendant was subsequently convicted and appealed.
Taking up defendant’s arguments, the Court of Appeals first specified that the review was for plain error, as defendant did not object to the admission of Exhibit 12 or the identification of the components as 12-A to 12-C. The court then proceeded to explain the situation, noting that after Exhibit 12 and the component parts were properly admitted, “[f]or reasons unknown, in an apparent overabundance of caution, the prosecutor unnecessarily moved to have the previously admitted components: 12-A, 12-B, 12-C, ‘readmitted.’” Slip Op. at 7. The court noted that both parties treated the exhibit and component parts as properly admitted during the proceedings, and defendant could not prove any prejudicial error from the facts of the case. The court also dispensed with defendant’s arguments as to due process and structural error.
Failure to lay proper foundation for breath test by establishing two results that differed by 0.02 or less entitled defendant to new trial on DWI.
State v. Vaughn, COA23-297, ___ N.C. App. ___ (Dec. 3, 2024). In this Pitt County case, defendant appealed his convictions for driving while impaired and speeding, arguing several errors including (1) admitting evidence of the speed results of the radar, (2) admitting video evidence of the advisement of his Miranda rights, (3) denying his motion to suppress, and (4) admitting evidence of the Intoxilyzer EC/IR II breath test result. The Court of Appeals found no error in (1)-(3), but because the State did not lay the proper foundation in (4), defendant was granted a new trial.
In June of 2019, defendant was pulled over late at night for speeding. The officer smelled the odor of alcohol on defendant, and defendant admitted he had consumed an alcoholic drink before driving. The officer asked defendant to get out of the vehicle and conducted HGN and VGN tests, as well as a portable breath test. Based on his admission of drinking and the officer’s observations, defendant was arrested, read his Miranda rights, and taken to the detention center for an Intoxilyzer EC/IR II breath test. When defendant reached trial, video of the stop and evidence of the breath test results were admitted over defendant’s objections.
Beginning with (1), defendant argued error because “the State failed to elicit the exact name of the agency that approved the radar model, issued the operator’s certificate, and inspected the device.” Slip Op at 5. The Court of Appeals first noted that the North Carolina Criminal Justice Education and Training Standards Commission certified and approved the use of radar and other speed-measuring instruments, and then rejected defendant’s argument that the officer was required to specifically identify the commission’s training and approval when testifying. The court explained that “there is no essential talismanic phrase” and “when the witness provides sufficiently specific testimony permitting the trial court to logically conclude compliance” there is no error in admitting the testimony. Id. at 10.
Moving to (2), defendant argued that admitting video of the advisement of his Miranda rights violated his Fifth Amendment rights. The court noted that the video was admitted to show professionalism and proper procedures after defense counsel questioned portions of the field sobriety test, and that the video was cut off immediately after advisement of the rights. Establishing that “nothing in our precedents indicates that the admission of the reading of Miranda rights, standing alone, constitutes error,” the court concluded that the State did not use the video to use defendant’s silence against him and that admission of the video was not error. Id. at 12.
Reaching (3), the court first explored the HGN test administration. Defendant argued the test was inadmissible because the officer did not follow the NHTSA Manual’s administration instructions. The court found no error, looking to the questioning by the State and the actual requirements of the manual and finding no issues. The court then considered whether the totality of the circumstances supported probable cause for arrest, concluding “the trial court’s order detailed sufficient findings to support the trooper’s reasonable belief that Defendant consumed alcohol, drove in a faulty manner, and displayed other indicia of impairment.” Id. at 17. The court also found no error in allowing video of a portable breath test even though the results were excluded from evidence, as the trial court instructed the jury to only consider the video for defendant’s “demeanor and behavior.” Id. at 18.
Finally in (4), the court concluded it was error to allow the State to introduce evidence of defendant’s Intoxilyzer breath test without showing the two consecutively collected breath samples complied with the applicable rules for administering the test. While the State elicited testimony from the officer about the breath test procedures, the record did not show compliance with the applicable North Carolina DHHS rules found in the N.C. Administrative Code. The court explained that “noticeably absent from the record is any evidence from which the trial court could have gleaned the foundational requirement that the two consecutively collected breath samples do not differ from each other by an alcohol concentration greater than 0.02.” Id. at 20-21. The court observed that “[t]estimony simply noting the test is performed in accordance with the rules of DHHS could have met this requirement; yet the record is completely devoid of such evidence.” Id. at 21. Because the record lacked this evidence, the breath test lacked proper foundation and admitting it was error. The State argued that whiting out the second test result was done at defendant’s request and that this represented invited error. The court disagreed, explaining that nothing in the record showed the trial court’s knowledge of the second test or that it complied with DHHS requirements, meaning “the State simply did not meet the minimal requirements of [G.S.] 20-139.1(b).” Id. at 22.
Single-taking rule justified reversal of three larceny counts against defendant.
State v. Wilson, COA24-27, ___ N.C. App. ___ (Dec. 3, 2024). In this Rutherford County case, defendant appealed her convictions for three counts of larceny of a firearm and one count of larceny after breaking or entering, arguing error in denying her motion to dismiss the larceny of a firearm charges under the single-taking rule. The Court of Appeals agreed, reversing the three counts of larceny of a firearm, vacating and remanding for resentencing.
Defendant and two acquaintances stole several items, including three firearms, from a nearby property in 2019. While being interviewed by detectives, defendant said that the three made two trips to the property to take items; the detectives found many of the stolen goods on defendant’s porch, but the firearms were never recovered. Defendant moved to dismiss the charges at trial but the trial court denied the motion.
The Court of Appeals first explained “[i]t is the State’s burden to present evidence that the stolen items were taken as part of multiple acts or transactions in order to support multiple convictions.” Slip Op. at 8. Absent this evidence, the single-taking rule “prevents a defendant from being . . . convicted multiple times for a single continuous act or transaction.” Id. (quoting State v. White, 289 N.C. App. 93 (2023)). Here the State’s evidence did not show multiple acts or transactions, meaning defendant “could only properly be convicted of and sentenced for one larceny offense.” Id. at 9.