This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on February 6, 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.
Failure to differentiate between the specific incidents supporting the two first-degree forcible sexual offense charges called into question the unanimity of the jury, and represented plain error justifying new trial.
State v. Bowman, COA23-82, ___ N.C. App. ___ (Feb. 6, 2024). In this Durham County case, defendant appealed his convictions for two first-degree forcible sexual offense charges and five other charges related to the rape and assault of a female, arguing (1) plain error by instructing the jury on only one count of first-degree forcible sexual offense, and (2) clerical errors in the judgment requiring remand. The Court of Appeals majority agreed with defendant, remanding for a new trial on the two forcible sexual offense charges and correction of the clerical errors.
In September of 2019, defendant appeared at the victim’s home heavily intoxicated and armed with a gun. After yelling for the victim to let him inside, defendant accused the victim of sleeping with someone else while brandishing his gun, and proceeded to forcibly rape and sexually assault her. Defendant was indicted on seven charges, including first-degree forcible rape, two counts of first-degree forcible sexual offense, and four other associated charges. When instructing the jury, the trial court read the elements for forcible sexual offense, but did not read separate instructions for each count charged, or notify the jury that defendant was charged with two separate counts of the offense. While the verdict sheets listed two counts, “the two counts were not separated by specific instances of sexual act[,]” and were instead listed as count two and count three. Slip Op. at 3. Defendant did not object to the jury instructions, and he was ultimately convicted of all seven charges against him.
Taking up (1), the Court of Appeals noted that the applicable standard of review was plain error, and looked to State v. Bates, 179 N.C. App. 628 (2006), for relevant considerations. Unlike the circumstances in Bates, the jury instructions and verdict sheets in the current case did not differentiate the charges by specific sexual act associated with each charge. This called into question the unanimity of the jury, as there was no way to determine if each juror agreed on the same sexual acts supporting the two charges in question. The court concluded “because it was not ‘possible to match the jury’s verdict of guilty with specific incidents presented in evidence’ without a special verdict sheet[,]” the single instruction on forcible sexual offense was plain error, justifying a new trial. Id. at 10, quoting Bates at 634.
Moving to (2) the court noted that the State had no objection to remand for correcting the clerical errors. The court identified three errors, (i) defendant’s prior record level being identified as V instead of IV, (ii) the marking of box 12 of the sentencing sheet for committing an offense while on pretrial release, and (iii) not marking the box on the aggravating factors sheet noting that defendant entered a plea to the aggravating factor. The court remanded for correction of these errors.
Judge Thompson dissented in part by separate opinion, and would have found no error by the trial court when failing to provide a second instruction on forcible sexual offense. Id. at 14.
(1) Circumstantial evidence supported a finding of defendant’s intent to commit felony child abuse; (2) defendant was not entitled to jury instruction on defense of accident; (3) no conflicting evidence to support giving jury instructions on lesser-included offenses.
State v. Buchanan, COA23-517, ___ N.C. App. ___ (Feb. 6, 2024). In this Mitchell County case, defendant appealed his conviction for felony child abuse inflicting serious bodily injury, arguing (1) error in denying his motion to dismiss, (2) plain error in failing to instruct the jury on the defense of accident, and (3) error in denying his requested jury instructions on lesser-included offenses. The Court of Appeals found no error or plain error.
In October of 2019, defendant brought his daughter to the emergency room with a head injury. During an interview with DSS at the hospital, defendant said the injury occurred when he tripped carrying his daughter and her head hit the bar on a Pack’n Play. Expert testimony disputed defendant’s version of the events, as the child “had significantly more and significantly more severe injuries than would be expected from a short fall, from falling from the father’s arms into a Pack ’N Play, or even onto the floor.” Slip Op. at 6. The child suffered permanent brain damage and loss of mobility on the left side of her body.
The Court of Appeals considered (1), defendant’s argument that the State presented insufficient evidence of his intent to inflict the child’s injuries. The court pointed out that intent is normally proven by circumstantial evidence. Here, the medical reports reflected significant injuries to the child’s brain, and expert testimony found those injuries “were consistent with physical abuse.” Id. at 10. These represented substantial evidence that defendant “intentionally inflicted serious bodily injury to [the child,]” justifying the denial of defendant’s motion. Id.
Moving to (2), the court noted that defendant did not object to the jury instructions, meaning the review was for plain error. Assuming arguendo that it was error that the jury was not instructed on the defense of accident, the court could not find prejudice, as the elements of felony child abuse inflicting serious bodily injury required the jury to find defendant intentionally injured the child. The court explained that the jury heard testimony from defendant that the events were an accident, and from the State’s expert that the injuries were indicative of child abuse. After hearing the two competing explanations, “[t]he jury thus found beyond a reasonable doubt that Defendant’s testimony was not credible by finding him guilty of felony child abuse inflicting serious bodily injury.” Id. at 14. Providing an instruction on the defense of accident would not have impacted the outcome.
Finally, in (3), the court explained that instruction on lesser-included offenses is not required “’when the State’s evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the charged crime.’” Id. at 15, quoting State v. Millsaps, 356 N.C. 556, 562 (2002). Here, the distinguishing element between the charge and lesser offenses was “the level of harm inflicted upon the child.” Id. The court concluded that “[h]ere, there was no evidence presented at trial from which the jury could have rationally found that Defendant committed the lesser offense[s] . . . because the State’s evidence is positive as to the element of serious bodily injury and there is no conflicting evidence.” Id. at 16.
No abuse of discretion when sentencing defendant to life without the possibility of parole after weighing mitigating factors from G.S. 15A-1340.19B and State v. Kelliher.
State v. Golphin, COA22-713, ___ N.C. App. ___ (Feb. 6, 2024). In this Cumberland County case, defendant appealed the superior court order sentencing him to life in prison without the possibility of parole (LWOPP) for two counts of first-degree murder committed while he was a juvenile. The Court of Appeals affirmed the lower court’s order.
In 1998, defendant was convicted of murdering two law enforcement officers and was sentenced to death. Defendant was 17 years old at the time of the murders. Defendant’s convictions were upheld on direct appeal in State v. Golphin, 352 N.C. 364 (2000). After defendant was convicted, the U.S. Supreme Court issued Roper v. Simmons, 543 U.S. 551 (2005), holding death sentences for juveniles violated the Eighth Amendment; Miller v. Alabama, 567 U.S. 460 (2012), holding that a mandatory sentence of LWOPP was unconstitutional for a juvenile; and Montgomery v. Louisiana, 577 U.S. 190 (2016), holding that Miller’s prohibition on mandatory LWOPP must be applied retroactively to those already sentenced to mandatory LWOPP. Defendant was initially resentenced to mandatory LWOPP in December of 2005, after filing a motion for appropriate relief (MAR) under Roper. In the current case, defendant filed a MAR in July of 2018, alleging his sentence was unconstitutional under Miller and Montgomery. A sentencing hearing was held in 2022, where the MAR court reviewed the nine mitigating factors from G.S. 15A-1340.19B and sentenced defendant to consecutive sentences of LWOPP.
The Court of Appeals first explained the scope of its review was abuse of discretion, and that the relevant considerations were the mitigating factors from G.S. 15A-1340.19B(c), along with the additional factor from State v. Kelliher, 381 N.C. 558 (2022), that the sentencing court must make an express finding of “a juvenile’s permanent incorrigibility” before imposing LWOPP. Slip Op. at 12. The court then grouped defendant’s arguments in two categories, (1) that defendant’s sentence of LWOPP should be reversed based on Kelliher because he was capable of reform, and (2) the MAR court incorrectly weighed the mitigating factors of G.S. 15A-1340.19B. Taking up (1), the court quickly dispensed with defendant’s arguments, as defendant did not challenge the findings of fact as unsupported by the evidence and they were binding on his appeal.
Because defendant did not challenge the findings of fact, the court moved to (2), and specifically the weight the MAR court gave to each of the nine mitigating factors and the express finding of incorrigibility under Kelliher. A significant portion of the opinion (pages 15 to 30) were spent examining the factors and the weight given by the MAR court to each. The court ultimately concluded that “the Sentencing Order properly addressed each factor as required by [G.S.] 15A-1340.19A and Kelliher.” Id. at 31. After noting the possible differing views on the mitigating impact of the factors, the court found no abuse of discretion and affirmed the order.
Drug dog’s alert represented probable cause for search, despite legalization of hemp in North Carolina; convictions for trafficking by possession and trafficking by transportation were both valid.
State v. Guerrero, COA23-377, ___ N.C. App. ___ (Feb. 6, 2024). In this Union County case, defendant appealed his convictions for trafficking in heroin by possession and by transportation, arguing error by (1) denying his motion to suppress based on insufficient probable cause, and (2) sentencing him for both convictions as possession is a lesser-included offense of trafficking. The Court of Appeals found no error.
In November of 2020, a lieutenant with the Union County Sheriff’s Office received a call from a confidential informant regarding a man driving a Honda Accord who had recently left a known heroin trafficker’s house. Another officer received the report and initiated a traffic stop of defendant after observing him run a red light. A canine officer responded to the stop and conducted a search around the vehicle; the dog alerted at the passenger side door. A search of the vehicle found a plastic bag with brownish residue. Defendant moved to suppress the results of this search before trial, but the trial court denied the motion, finding the dog’s alert and the confidential informant’s tip supported probable cause.
Taking up (1), the Court of Appeals outlined defendant’s arguments challenging both the reliability of the dog’s alert and the reliability of the confidential informant. Concerning the dog’s alert, defendant argued due to the legalization of hemp, the alert did not necessarily indicate illegal drugs, and thus could not represent probable cause. The court rejected this argument, explaining that caselaw supported a drug dog’s alert as probable cause to search the area where the dog alerted, and “[t]he legalization of hemp does not alter this well-established general principle.” Slip Op. at 7. The court noted that this argument also did not fit the facts of the case, as no officer noticed the smell of marijuana, and the confidential informant referenced heroin, which was also the substance found in the car. Because the dog’s alert alone formed sufficient probable cause, the court did not reach the confidential information argument.
Arriving at (2), the court explained that “[d]efendant was sentenced for trafficking in heroin by transportation and possession, not trafficking and possession.” Id. at 11. The court pointed to State v. Perry, 316 N.C. 87 (1986), for the principle that a defendant could be convicted for trafficking in heroin by possession and by transporting “even when the contraband material in each separate offense is the same.” Id., quoting Perry at 103-04. Based on this precedent, the court rejected defendant’s arguments, and also rejected his “challenge” to create “a hypothetical where a defendant transports drugs without possessing drugs.” Id.
Reclassification of Colorado offense from felony to misdemeanor did not remove factual basis for defendant’s plea to habitual felon status.
State v. Mincey, COA23-447, ___ N.C. App. ___ (Feb. 6, 2024). In this Craven County case, defendant appealed her guilty plea to habitual felon status, arguing the reclassification of the offense she was convicted of in Colorado from a felony to a misdemeanor removed the factual basis for her plea. The Court of Appeals majority disagreed, finding no error.
Defendant was convicted by a jury of nine counts of embezzlement and one count of obtaining property by false pretenses in August of 2022. After her conviction, she pleaded guilty to attaining habitual felon status, based in part on a Colorado conviction for second-degree forgery in 1991. In 1993, Colorado reclassified second-degree forgery as a misdemeanor. During the colloquy required by G.S. 15A-1022(c), the trial court examined evidence showing the felony conviction from 1991, and defense counsel did not object to the factual basis of the conviction, even incorrectly stating that second-degree forgery was still a felony in Colorado.
Taking up defendant’s argument, the Court of Appeals first established that it had jurisdiction to review her guilty plea under G.S. 15A-1444(a2), even though habitual felon status is not a crime. Because defendant was challenging “whether her term of imprisonment was authorized by statute[,]” the court concluded that G.S. 15A-1444(a2)(3) granted it jurisdiction to consider the appeal. The court then moved to the substance of defendant’s argument and reviewed the text of the habitual felon statute under G.S. 14-7.1. Rejecting defendant’s argument that the reclassification removed the factual basis for her plea, the court concluded “there was sufficient evidence for the trial court to properly determine a factual basis existed showing Defendant had committed three prior felonies, including the second-degree forgery felony.” Slip Op. at 8.
Judge Arrowood dissented by separate opinion, and would have held that defendant had no right of appeal under G.S. 15A-1444(a2), but would have granted a petition for certiorari and concluded that the reclassification of the felony offense justified remand for resentencing. Id. at 11.
Defendant failed to properly argue plain-error standard or his objections to admission of text messages, abandoning arguments on appeal; defendant’s fair-cross-section objection to jury pool did not satisfy factors from Duren v. Missouri.
State v. Robinson, COA23-365, ___ N.C. App. ___ (Feb. 6, 2024). In this Wake County case, defendant appealed his convictions for two counts of first-degree murder and four counts of discharging a weapon into an occupied vehicle, arguing error in (1) allowing certain text messages into evidence, and (2) denying his challenge to the jury pool. The Court of Appeals found no error.
In May of 2022, trial began on defendant’s charges; during jury selection, defendant challenged the makeup of the jury pool, arguing members of defendant’s race (Black) were underrepresented. Defendant offered statistical evidence to support his argument, but the trial court denied defendant’s challenge. During the trial, the State offered text messages between an accomplice of defendant and a third party, attempting to show motivation for the robbery that eventually led to the murders. Defendant objected to the messages, and the trial court only allowed admission of the accomplice’s text messages, not those from the third party. Defendant was subsequently convicted and appealed.
Before reaching the merits of defendant’s arguments in (1), the Court of Appeals considered the basis for its review. At trial, defendant objected to the text messages “because they were hearsay, were not illustrative, and lacked a proper foundation.” Slip Op. at 6. However, on appeal, defendant did not raise these three issues, but instead argued the text messages were irrelevant, unfairly prejudicial, and violated the Confrontation Clause and defendant’s right to a fair trial. Because defendant attempted to change his arguments on appeal, he was limited to the plain-error standard; however, the court noted that defendant “failed to ‘specifically and distinctly . . . argue plain error.’” Id., quoting State v. Frye, 341 N.C. 470, 496 (1995). As a result, defendant was limited to the grounds under which he originally objected to the evidence at trial. But as noted above, defendant did not argue the three issues from trial on appeal. This meant that defendant had no valid arguments on appeal, and the court dismissed issue (1).
Moving to (2), the court explained that under applicable precedent on the fair-cross-section requirement, statistical evidence about the composition of the jury pool alone is not enough to prove systematic exclusion of that group. Here defendant acknowledged that he did not admit sufficient evidence of all three factors under Duren v. Missouri, 439 U.S. 357 (1979), but attempted to reference other cases and the pervasive problem of disparity in jury pools across North Carolina. The court was not swayed by this argument, concluding defendant “only offers statistical evidence as proof of systematic exclusion, and without more, he fails to establish a fair-cross-section claim under Duren.” Slip Op. at 8-9.