This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on February 21, 2023. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Trial court failed to utilize Waller test or make sufficient findings of fact to support closure of courtroom; city ordinance was not properly pleaded where charging documents did not include the caption of the ordinance.
State v. Miller, COA22-561, ___ N.C. App. ___ (Feb. 21, 2023). In this Union County case, defendant appealed his convictions for attempted first degree murder, going armed to the terror of the people, possession of a handgun by a minor, and discharge of a firearm within city limits, arguing error by insufficient findings to justify closure of the courtroom and by denial of his motion to dismiss the discharge of a firearm charge. The Court of Appeals agreed, remanding the case and vacating the discharge of a firearm conviction.
In August of 2018, defendant was armed and riding in a car with other armed occupants near a neighborhood basketball court. Defendant was seated in the front passenger seat, and when the vehicle passed a group of pedestrians walking to the basketball court, defendant leaned out the window and began shooting. One bullet hit a pedestrian but did not kill him. During the trial, the prosecution moved to close the courtroom during the testimony of two witnesses, the victim and another witness who was present during the shooting, arguing this was necessary to prevent intimidation. The trial court granted this motion over defendant’s objection, but allowed direct relatives of defendant and the lead investigator to be present during the testimony.
The Court of Appeals found that the trial court failed to utilize the four-part test from Waller v. Georgia, 467 U.S. 39 (1984), and failed to make findings sufficient for review to support closing the courtroom. The Waller test required the trial court to determine whether “’the party seeking closure has advanced an overriding interest that is likely to be prejudiced, order closure no broader than necessary to protect that interest, consider reasonable alternatives to closing the procedure, and make findings adequate to support the closure.’” Slip Op. at 4, quoting State v. Jenkins, 115 N.C. App. 520, 525 (1994). In the current case, the trial court did not use this test and made no written findings of fact at all. As a result, the Court of Appeals remanded for a hearing on the propriety of the closure using the Waller test.
Turning to defendant’s motion to dismiss, the court found that the arrest warrant and indictment were both defective as they did not contain the caption of the relevant ordinance. Under G.S. 160A-79(a), “a city ordinance . . . must be pleaded by both section number and caption.” Id. at 8. Here, the charging documents only reference the Monroe city ordinance by number, and failed to include the caption “Firearms and other weapons.” The court found the state failed to prove the ordinance at trial, and vacated defendant’s conviction for the discharge of a firearm within city limits charge.
Order of restitution was not abuse of discretion where defendant presented no evidence of her inability to repay; G.S. 15A-1340.36(a) does not specify procedure for hearing from defendant regarding ability to pay restitution.
State v. Black, COA22-426, ___ N.C. App. ___ (Feb. 21, 2023). In this Buncombe County case, defendant argued error by the trial court when ordering that she pay restitution of $11,000. The Court of Appeals found no error and affirmed the judgment.
The current opinion represents the second time this matter came before the Court of Appeals; previously defendant appealed her convictions of possession of a stolen motor vehicle and attempted identify theft after pleading guilty, arguing mistakes in calculating her prior record level and error in ordering a civil judgment for attorney’s fees without permitting defendant to be heard. In State v. Black, 276 N.C. App. 15 (2021), the court found error by the trial court on both issues, and remanded for resentencing while vacating the attorney’s fees. After the trial court’s hearing on remand, defendant brought the current appeal, arguing that the trial court erred because it did not hear from her or consider her ability to pay before ordering the $11,000 restitution.
The Court of Appeals disagreed with defendant, noting that defendant did not present evidence of her inability to pay the restitution, and the burden of proof was on her to demonstrate an inability to pay. The applicable statute, G.S. 15A-1340.36(a), requires the trial court to consider the defendant’s ability to pay restitution, but does not require any specific testimony or disclosures from defendant. Looking at the record, the court found no abuse of discretion by the trial court, explaining that defendant even conceded “she previously stipulated to the $11,000 restitution amount set out in the May 2019 Restitution Worksheet.” Slip Op. at 6.
Vacating judgment without remand was appropriate remedy for failure to find good cause when revoking defendant’s probation after expiration.
State v. Lytle, COA22-675, ___ N.C. App. ___ (Feb. 21, 2023). In this Buncombe County case, defendant appealed an order revoking his probation, arguing the trial court failed to make a finding of good cause to revoke his probation along with other errors. The Court of Appeals agreed with defendant and vacated the trial court’s judgment without remand.
Defendant’s probation was revoked at a hearing held 700 days after the expiration of his probation term. The court noted that “the trial court failed to find good cause to revoke probation after the expiration of the probation period as required by [G.S.] 15A-1344(f)(3).” Slip Op. at 2. Subsection (f)(3) requires a finding of good cause to support the trial court’s jurisdiction to revoke probation; here, the record did not show any findings supporting good cause. Considering the appropriate remedy, the court applied State v. Sasek, 271 N.C. App. 568 (2020), holding that where no evidence in the record supports a finding of “reasonable efforts” by the state to hold a revocation hearing sooner, the appropriate remedy for failure to make findings of good cause under G.S. 15A-1344(f)(3) is vacating the judgment without remand. Slip Op. at 4.
Missing page from transcript did not justify new trial; a niece-in-law is not a niece for purposes of criminal incest under North Carolina law; clerical error in judgment including dismissed conviction justified remand for correction.
State v. Palacio, COA22-231, ___ N.C. App. ___ (Feb. 21, 2023). In this Onslow County case, defendant appealed his convictions for statutory rape, incest, and indecent liberties with a child. Defendant argued (1) a missing page of the transcript justified a new trial; (2) error in denying his motion to dismiss the incest charge; (3) error in denying his motion to suppress; and (4) a clerical error in the judgment required remand. The Court of Appeals did not find justification for a new trial or error with denial of the motion to suppress, but did vacate defendant’s incest conviction and remanded the case for correction of the clerical error on the judgment and resentencing.
In 2018, the 15-year-old victim of defendant’s sexual advances moved in with defendant and his wife in Jacksonville. The victim is the daughter of defendant’s wife’s sister, making her defendant’s niece by affinity, not consanguinity. During several encounters, defendant made sexual advances and eventually engaged in sexual contact with the victim, and she reported this conduct to her father, who called the police. Prior to his trial, defendant moved to suppress statements made to after his arrest by the Onslow County Sheriff’s Office, but the trial court denied the motion.
Reviewing (1), the Court of Appeals explained that a missing page from a trial transcript does not automatically justify a new trial. Instead, the applicable consideration is whether the lack of a verbatim transcript deprives the defendant of a meaningful right to appeal, and the court looked to the three-part test articulated in State v. Yates, 262 N.C. App. 139 (2018). Because defendant and his counsel “made sufficient reconstruction efforts that produced an adequate alternative to a verbatim transcript, he was not deprived of meaningful appellate review.” Slip Op. at 9.
Turning to (2), the incest charge, the court agreed with defendant that “the term ‘niece’ in [G.S.] 14-178 does not include a niece-in-law for the purposes of incest.” Id. The opinion explored the history of the incest statute and common law in North Carolina in extensive detail, coming to the conclusion that a niece-in-law does not represent a niece for purposes of criminal incest. As an illustration of the “absurd results” under North Carolina law if a niece by affinity were included, “an individual could marry their niece-in-law . . . [but] that individual would be guilty of incest if the marriage were consummated.” Id. at 20. As a result, the court vacated defendant’s incest conviction.
Considering (3), inculpatory statements made by defendant after his arrest, the court considered defendant’s arguments that the findings of fact were incomplete, and that the evidence did not support that he made the statements voluntarily. The court disagreed on both points, explaining that findings of fact “need not summarize all the evidence presented at voir dire,” as long as “the findings are supported by substantial and uncontradicted evidence, as they are here.” Id. at 26. As for the voluntariness of the statements, the court detailed several different points where defendant received Miranda warnings, signed an advisement of rights form, and even made a joke about being familiar with the rights through his work as an active duty marine with a law enforcement role.
For defendant’s final issue (4), the clerical error, the court agreed with defendant that the trial court had orally dismissed the sexual activity by a substitute parent charge prior to sentencing. Although the jury did convict defendant of this charge, the transcript clearly indicated the trial court dismissed the charge before consolidating the other charges for sentencing. Looking to the rule articulated in State v. Smith, 188 N.C. App. 842 (2008), the court found that remand for correction was the appropriate remedy for the clerical error in the judgment to ensure the record reflected the truth of the proceeding.