This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on January 15, 2025. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Facebook messages were properly authenticated by witness testimony; CAD report of 911 call was properly admitted and excluding content of call was not inconsistent.
State v. Davenport, COA24-330, ___ N.C. App. ___ (Jan. 15, 2025). In this Scotland County case, defendant appealed his conviction for first-degree murder, arguing error in admitting (1) photos of Facebook messages allegedly sent by defendant, and (2) a CAD report of a 911 call. The Court of Appeals found no error.
In December of 2020, defendant and several family and friends were gathered at home, when a dispute broke out between defendant and his older brother. The dispute culminated with defendant pulling a gun and shooting his older brother on the porch. Family members called 911 and the sheriff’s office responded, finding the victim dead on the ground. At trial, the victim’s daughter testified that she communicated with defendant through Facebook Messenger because defendant did not have a phone with service, and she believed the victim also communicated with defendant that way. The State offered photographs showing a Facebook Messenger conversation between the victim and defendant, and the trial court overruled defense counsel’s objections to the authentication of the exhibit. The State also offered a one-page CAD report from a 911 call received two hours after the incident. The trial court allowed this exhibit solely for the purpose of establishing the call occurred, but did not allow discussion of the conversation.
Beginning with (1), the Court of Appeals noted that “the burden to authenticate under Rule 901 is not high—only a prima facie showing is required” and looked to the circumstantial evidence for support that the messages were actually sent to and from defendant. Slip Op. at 9 (quoting State v. Ford, 245 N.C. App. 510, 519 (2016)). The court found sufficient evidence in the testimony of the victim’s daughter, as “the use of Facebook Messenger was consistent with Defendant’s behavior,” and from a deputy who testified how he retrieved the messages from the victim’s phone and read several messages that “contained references and information corroborating their authenticity.” Id. at 11. This led the court to conclude it was not error to admit the Facebook Messenger comments.
Moving to (2), defendant argued “the trial court’s decisions to admit the CAD report showing a 911 call had been received approximately two hours after the incident and to exclude the content of the call were inconsistent.” Id. at 12. The court disagreed, explaining that defendant objected the CAD report was not relevant, and the standard for relevancy is “relatively lax.” Id. at 13 (quoting State v. McElrath, 322 N.C. 1, 13 (1988)). Here, the CAD report made the fact that an incident occurred in the early morning more likely, and the trial court concluded the actual substance of the call was unfairly prejudicial under Rule 403. The court explained that “these rulings are consistent and show an effort by the trial court to provide jurors with explanatory information . . . while protecting Defendant from undue prejudice.” Id. at 14.
Serious injuries suffered by twins in defendant’s care represented felony child abuse; testimony from cellmate that defendant abused the twins was not “inherently incredible” due to discrepancies.
State v. Middleton, COA24-252, ___ N.C. App. ___ (Jan. 15, 2025). In this Gaston County case, defendant appealed his convictions for first-degree murder and intentional child abuse inflicting serious bodily injury, arguing error in (1) denying his motion to dismiss the charges for insufficient evidence, and plain error in (2) allowing testimony that was inherently incredible, and (3) allowing testimony from a witness who interrogated defendant as an agent of the state. The Court of Appeals found no error or plain error.
In May of 2020, defendant’s girlfriend gave birth to defendant’s twin sons. The twins were born prematurely, and spent several weeks in the NICU. In June, defendant’s girlfriend brought the twins home to their shared apartment. Soon after, defendant’s girlfriend left the apartment to get groceries and diapers, leaving the twins with defendant for several hours. When she returned, defendant told her the twins were fine, but the next day one twin would not feed, and after calling her pediatrician, the girlfriend took the child to the ER for further evaluation. At the ER, it became clear the child had severe injuries, and he was airlifted to a Charlotte hospital where doctors found a skull fracture with brain bleeds and a left wrist fracture. The other twin was evaluated and similar head injuries were found. The first twin to be hospitalized died from his injuries, and an autopsy found injuries consistent with non-accidental blunt force trauma. While defendant was in jail before trial, he told a fellow inmate several stories about how the injuries occurred, ultimately admitting that he became frustrated and caused the injuries intentionally. This inmate later testified against defendant at trial. Defendant was subsequently convicted of first-degree felony murder based on the underlying felony of child abuse inflicting serious bodily injury, and another count of child abuse inflicting serious bodily injury for the surviving twin.
Taking up (1), the Court of Appeals first explained that when an adult attacks a child with their hands, it can be inferred that the hands were used as deadly weapons, and “when an adult has exclusive custody of a child for a period of time during which the child suffers injuries that are neither self-inflicted nor accidental, there is sufficient evidence to create an inference that the adult intentionally inflicted those injuries.” Slip Op. at 12 (quoting State v. Liberato, 156 N.C. App. 182, 186 (2003)). The court then proceeded to examine the evidence of injuries sustained by the twins, concluding the expert testimony showed the injuries were indicative of child abuse. Defendant argued that the testimony did not establish intentional child abuse, but the court called that argument “demonstrably false,” as the testifying expert explicitly called the injuries “nonaccidental.” Id. at 14. Because the record contained sufficient evidence to support both convictions, the court held denying the motion to dismiss was not error.
Moving to (2), defendant argued the testimony of his jail cellmate was “inherently incredible” and although defendant did not object at trial, allowing the testimony was plain error. The court found the concept of “inherently incredible” from State v. Miller, 270 N.C. 726 (1967), inapplicable to the current case, as the issues with the witness’s testimony were simply discrepancies with other pieces of evidence at trial. To represent “inherently incredible” testimony, defendant would have to identify “evidence which is inherently impossible or in conflict with indisputable physical facts or laws of nature,” which defendant could not do in the current case. Slip Op. at 18 (quoting State v. Cox, 289 N.C. 414, 422-23 (1976)).
Reaching (3), the court explained that defendant failed to preserve this issue predicated on constitutional arguments. Because defendant did not object at trial, the issue was waived and not eligible for plain error review on appeal.