This post summarizes criminal decisions from the North Carolina Court of Appeals published on January 18, 2022. Summaries will also be posted to Smith’s Case Compendium, here.
(1) Sufficient evidence supported dogfighting convictions; (2) Leading question during State’s direct examination was not error; (3) The trial court did not err by ordering restitution for all the seized animals or by failing to explicitly consider the defendant’s ability to pay, but erred in converting the restitution award to a civil judgment absent statutory authorization
State v. Crew, ___ N.C. App ___; 2022-NCCOA-35 (Jan. 18, 2022). The defendant was charged with and convicted of dogfighting and related offenses in Orange County. (1) He argued the evidence was insufficient to establish his specific intent to keep the dogs for purposes of fighting. The court disagreed. When the county Animal Services officials visited the property, they found equipment used in the strength training of dogs, at-home medications used to treat animal wounds, and an apparent dogfighting pit, as well as notes on preparing dogs for fights and dogfighting magazines. There was also evidence that many of the dogs had medical conditions commonly associated with dogfighting. This was sufficient evidence of the defendant’s specific intent, and the trial court properly denied the motion to dismiss for insufficient evidence.
(2) During direct examination of its expert witness, the State asked a leading question about the defendant’s intent. The defendant did not object at trial but complained on appeal that the question amounted to plain error. The court disagreed, noting that trial courts have the discretion to allow leading questions concerning evidence previously admitted without objection, as was the case here. The court further observed that plain error review is not available for discretionary decisions of the trial court, and the case “did not remotely approach” the circumstances where invocation of Rule 2 of the Rules of Appellate Procedure was warranted to obtain review. Even assuming plain error review was available, the court found there was no error—plain or otherwise—and rejected this argument.
(3) The trial court ordered the defendant to pay Animal Services restitution in the amount of $70,000 for its care and keep of the animals and immediately converted the award to a civil judgment (presumably based on the 60-month minimum active portion of the sentence imposed in the case). Thirty dogs were seized from the defendant’s property, but he was only convicted of offenses relating to 17 of the animals. According to the defendant, the restitution award should have therefore been proportionally reduced. The court disagreed, observing that “[t]he trial court may impose restitution for ‘any injuries or damages arising directly and proximately out of the offense committed by the defendant,’” pointing to G.S. 15A-1340.34(c). Crew Slip op. at 9. Because the defendant’s crimes resulted in the removal of all the animals, he could properly be held responsible for the cost of caring for the animals.
The defendant also argued that the trial court erred in failing to consider his ability to pay before ordering restitution. While the trial court need not make express findings on the issue, G.S. 15A-1340.36(a) requires the judge to consider the defendant’s ability to pay among several other factors when deciding restitution. Here, there was evidence in the record concerning the defendant’s income, the price of a “good puppy,” and of the defendant’s living arrangements. “Based on this evidence, the trial court’s determination that the defendant had the ability to pay was within the court’s sound discretion and certainly not manifestly arbitrary or outside the realm of reason.” Crew Slip op. at 10-11.
Finally, the defendant argued the trial court improperly converted the restitution award to a civil judgment. The court agreed. The restitution statutes distinguish between offenses subject to the Crime Victim’s Rights Act (“VRA”) and offenses exempt from that law. G.S. 15A-1340.38 expressly authorizes a trial court to convert an award of restitution to a civil judgment in VRA cases. No similar statutory authorization exists for non-VRA cases. While some other offenses have separate statutory provisions permitting conversion of a restitution award to a civil judgment (see, e.g., G.S. 15-8 for larceny offenses), no such statute applied to the crimes of conviction here. The court noted that G.S. 19A-70 authorizes animal services agencies to seek reimbursement from a defendant for the expenses of seized animals and observed that the agency failed to pursue that form of relief. The court rejected the State’s argument that the trial court’s action fell within its inherent authority. The civil judgments were therefore vacated. The convictions and sentence were otherwise undisturbed.
(1) Challenge to earlier order extending probation following later revocation was not an impermissible collateral attack on the underlying judgment; (2) Violation of defendant’s right to counsel at probation extension hearing voided extension order, which deprived the trial court of jurisdiction to later revoke probation
State v. Guinn, ___ N.C. App. ___; 2022-NCCOA-36 (Jan. 18, 2022). The defendant was on supervised probation in Gaston County after pleading guilty to two counts of uttering a forged instrument. 24 months into a 30-month period of probation, a probation violation was filed, accusing the defendant of willful failure to pay. The defendant was not represented by counsel at the hearing, and the trial court ultimately extended probation by 12 months. A year later, probation filed a violation report accusing the defendant of numerous violations. An absconding violation was filed soon after. A hearing was held where the defendant’s probation was revoked, and his sentence activated.
On appeal, the defendant argued that the initial extension of his probation was invalid based on a violation of his right to counsel. (1) The State argued that the defendant was not permitted to collaterally attack the underlying judgment. The court disagreed, finding that the defendant sought to challenge the order extending his probation, not the underlying criminal judgment placing him on probation. Because the defendant had no right of appeal from that order, he retained the right to challenge it in the present case.
(2) The trial court failed to conduct a colloquy pursuant to G.S. 15A-1242 to ensure the defendant knowingly, intelligently, and voluntarily waived his right to counsel at the first probation hearing. While the defendant and judge had signed a waiver of counsel form indicating that the defendant waived all counsel, the judge failed to check either box (indicating partial or total waiver of counsel) on the certification section of the form. The certification attests that the G.S. 15A-1242 colloquy with the defendant was completed. This was a substantive error and not a clerical mistake—the trial court only had jurisdiction to revoke probation in the current case if the initial extension was valid, and the initial extension was only valid if the defendant’s right to counsel was honored, so a mistake here spoke directly to the length of the defendant’s probation. While a knowing, voluntary, and intelligent waiver of counsel may be presumed from the defendant’s signature on the waiver form, that presumption will not be indulged where other record evidence contradicts that conclusion. According to the court:
[A]lthough a signed written waiver is generally ‘presumptive evidence that a defendant wishes to act as his or her own attorney,’ we conclude that the written waiver in the instant case is insufficient—notwithstanding the presence of both parties’ signatures—to pass constitutional and statutory muster. Guinn Slip op. at 18 (cleaned up).
Further, the transcript revealed that no waiver of counsel colloquy occurred. Even assuming the signed waiver of counsel form was valid, the trial court still has a duty to conduct the colloquy of G.S. 15A-1242 and its failure to do so was prejudicial error. The trial court’s original order extending probation by 12 months was therefore invalid, as those proceedings violated the defendant’s right to counsel. Accordingly, the trial court lacked jurisdiction at the later probation violation hearing, and the order of revocation was vacated.
Judge Tyson dissented. He would have found that the signed form conclusively established the defendant’s valid waiver of counsel and would have affirmed the trial court’s revocation order.
Findings of fact failed to resolve material conflicts in the evidence from suppression hearing; denial of motion to suppress vacated and remanded for new findings
State v. Heath, ___ N.C. App. ___; 2022-NCCOA-37 (Jan. 18, 2022). The defendant was stopped in Cleveland County for driving left of center and driving without an active license. The officer recognized the defendant and knew her to be involved in drugs. While running license and warrants checks, the officer asked to search the car. The defendant refused. According to the officer, a drug dog was called, but before it could arrive, the defendant admitted to possessing drugs. According to the defendant, the officer searched her car without consent, found drugs, removed them from the car, and then put them back inside the car for canine training purposes. When the canine arrived, it alerted on the car, leading to the discovery of methamphetamine, marijuana, and paraphernalia, and the defendant was charged accordingly. She moved to suppress, and the trial court denied the motion.
The findings of fact in the denial order reflected that the defendant did not consent, but the conclusions of law upholding the search were based on the defendant’s consent. The order also failed to resolve the factual dispute regarding when the drugs were actually seized in relation to when the canine sniff occurred. These issues required that the order be vacated, and the matter remanded for new findings. In the court’s words:
Because the findings of fact are not sufficient to allow proper appellate review, we must remand for further findings of fact, particularly regarding whether and when defendant consented to a search and the timing of the search and seizure in relation to the consent and the call for, arrival, and sniff of the canine officer.” Heath Slip op. at 8-9.
Trial court improperly limited scope of post-conviction discovery in MAR proceedings
State v. Cataldo, ___ N.C. App. ___; 2022-NCCOA-34 (Jan. 18, 2022) (“Cataldo III”). The defendant was convicted of statutory rape and sex offense in Rockingham County. That verdict was affirmed on appeal in an unpublished decision, and the defendant sought post-conviction relief. He filed a motion for appropriate relief (“MAR”) and a request for post-conviction discovery, arguing that his trial counsel was ineffective in failing to obtain Department of Social Services (“DSS”) records on the victim from Rockingham and Guilford counties. Specifically, the MAR stated that the DSS records would establish multiple prior false accusations by the victim. The trial court denied the request for discovery and denied the MAR. The Court of Appeals granted certiorari and reversed, ordering the trial court to obtain the DSS records and to conduct an in camera review. The State provided what it alleged to be the complete DSS files relating to the case to the trial court. Reviewing those records, the trial court found that the files did not contain information relevant to the defendant’s case. It also found that the records were incomplete and that the court was unable to complete its review without additional files. The trial court ordered Rockingham DSS (and later Guilford County DSS) to produce records on the victim from three specific time frames. The defendant complained to the trial court that limiting the order to these specific ranges of time was too narrow and would miss relevant records (including the records of the accusation against the defendant himself), but the trial court did not alter its order. When the trial judge ultimately obtained the ordered records and reviewed them, it found the information was not likely to have impacted the verdict and was therefore not material. The motion for post-conviction discovery of the DSS records was consequently denied for a second time. The Court of Appeals granted certiorari again and again reversed and remanded.
The court agreed with the defendant that the trial court improperly limited the scope of the request for DSS records. The defendant’s original request was for DSS records of prior accusations by the victim. While the Court of Appeals order remanding the case for an in camera review of the records mentioned specific time frames as examples, its order was not limited to those time frames and encompassed any and all relevant records. On remand a second time, the trial court was ordered to conduct an in camera review of any DSS records pertaining to prior accusations of abuse by the victim. The court declined to review the DSS records sealed in the file before the trial court has had an opportunity to complete a full review of the relevant records. It noted that the defendant would be entitled to a new trial if the records are deemed material.
Judge Arrowood sat on the panel initially remanding the case and dissented. He believed that the trial court had complied with the original remand order and would have affirmed the trial court’s order denying post-conviction discovery.
(1) Request for involuntary manslaughter instruction was preserved for appellate review; (2) Failure to instruct the jury on involuntary manslaughter was reversible error where the jury could have found that the defendant acted recklessly instead of with malice
State v. Brichikov, ___ N.C. App. ___; 2022-NCCOA-33 (Jan. 18, 2022). In this Wake County murder case, the defendant admitted to having assaulted his wife and she was found with physical trauma to her face. She also had cocaine and fentanyl in her blood, had recently overdosed, and had a serious heart condition. There was conflicting evidence at trial on whether the facial injuries alone could have caused her death. The defendant requested instructions on voluntary and involuntary manslaughter. The trial court declined to give the requested instructions and the jury convicted on second-degree murder. A divided Court of Appeals reversed and remanded for a new trial.
(1) The defendant’s request for an involuntary manslaughter instruction was preserved. While an initial request for the instruction focusing on the defendant’s failure to act would have been a special instruction (as it deviated from the pattern instruction) and would have needed to be in writing in order to preserve the issue, the defendant articulated multiple theories in support of an involuntary manslaughter instruction. He also objected to the lack of manslaughter instructions at the charge conference and again after the jury was instructed. This preserved the issue for review.
(2) The defendant argued that his evidence contradicted the State’s evidence of malice with evidence of recklessness, and that he was entitled to an involuntary manslaughter instruction when the evidence was viewed in the light most favorable to him. The State argued that the defendant’s use of a deadly weapon—his hands—”conclusively established” the element of malice, so that no lesser-included instructions were required. The court agreed with the defendant:
Viewing the evidence in the light most favorable to Defendant, the evidence was not “positive” as to the element of malice for second-degree murder. The jury could reasonably have found Defendant did not act with malice, but rather committed a reckless act without the intent to kill or seriously injure–he spent the day declaring his love for Mrs. Brichikov, they used drugs together . . . and her body was in a weakened state from a recent overdose, heart blockage, and fentanyl overdose. Brichikov Slip op. at 17-18.
The failure to give an involuntary manslaughter instruction prejudiced the defendant and required a new trial. The court declined to consider the propriety of the defendant’s proposed special jury instruction on culpable negligence by omission, finding that issue moot in light of its ruling and expressing no opinion on the merits of the instruction.
Judge Carpenter dissented and would have found that any error in the jury instructions was not prejudicial in light of the aggravating factor found by the jury that the defendant acted especially cruelly.
(1) Sufficient evidence supported the defendant’s convictions for embezzlement in excess of $100,000; (2) The trial court did not err in declining to give a special jury instruction on joint ownership
State v. Steele, ___ N.C. App. ___; 2022-NCCOA-39 (Jan. 18, 2022). The defendant was close friends with older couple in Pamlico County. They considered each other family. When the husband of the couple unexpectedly died, the defendant offered to assist the surviving widow. She ultimately turned over complete control of her finances to the defendant. Two months later, she signed a power of attorney making the defendant her attorney in fact and named the defendant as the primary beneficiary of her will. Money was withdrawn from the widow’s accounts and deposited into new bank accounts opened jointly in the names of the widow and the defendant. The defendant then used the widow’s funds to make personal purchases and pay individual debts. Additionally, some of the widow’s funds were automatically withdrawn by the bank from the joint accounts to cover overdrafts owed by the defendant on his individual bank accounts. After the discovery that more than $100,000.00 had been withdrawn from the widow’s accounts, the defendant was charged with embezzlement and multiple counts of exploitation of an older adult. At trial, the defense requested a special jury instruction regarding the rights of joint account holders based on provisions in Chapter 54C (“Savings Banks”) of the North Carolina General Statutes. The trial court declined to give the proposed instruction, the jury convicted on all counts, and the defendant was sentenced to a minimum 73-months imprisonment.
On appeal, a unanimous Court of Appeals found no error. (1) The defendant’s motion to dismiss for insufficient evidence was properly denied. The evidence showed a fiduciary relationship existed between the defendant and the widow, even before the execution of the power of attorney. “[T]he evidence sufficiently established that a fiduciary relationship existed between Defendant and Mrs. Monk prior to that point, when he ‘came into possession of the funds in Mrs. Monk’s bank accounts.’” Steele Slip op. at 10. The defendant also argued that, as a joint account holder with the widow, the money in the accounts was properly considered his property. The court disagreed. While joint account holders may be presumed to be the owners of the money in a joint account, that presumption can be overcome when ownership is disputed. Then, ownership of the funds is determined by examining the history of the account, the source of the money, and whether one party intended to gift money to the other joint account holder (among other factors). It was clear here that the widow was the source of the funds in the joint accounts and that she did not intend to make any gift to the defendant. “[T]here was sufficient evidence that the funds taken were the property of Mrs. Monk, and that she did not have the requisite ‘donative intent’ to grant Defendant the money to withdraw and use for his personal benefit.” Id. at 14 (citation omitted). There was also sufficient evidence that the defendant intended to embezzle an amount exceeding $100,000. While more than $20,000 of the missing funds had been automatically withdrawn by a bank to cover the defendant’s preexisting overdraft fees and the defendant denied being aware of this, the overdraft repayments occurred over a 9-month period of time. The defendant received bank statements recounting the repayments each month during that time frame. The total amount deducted as overdraft repayments exceeded $20,000, more than one-fourth of the defendant’s yearly salary. There was also evidence of the defendant’s financial problems. This was sufficient circumstantial evidence of the defendant’s fraudulent intent to embezzle over $100,000. The defendant’s various sufficiency arguments were therefore all properly rejected.
(2) The trial court did not err in failing to give the jury a special instruction on joint accounts and joint tenancy. The proposed instruction was based on the language of G.S. 54C-165 and related laws regarding banking regulations. These laws are intended to protect banks, and allows them to disburse joint funds to either party listed on the account. The laws do not allow a joint account holder to wrongfully convert the funds to their own use simply by virtue of being a joint account holder. The proposed instruction therefore would have been confusing and misleading to the jury. In the words of the court:
Because the requested special instruction could have misled the jury and was likely to create an inference unsupported by the law and the record—that Defendant’s lawful access to the funds in the joint accounts entitled him to freely spend the money therein—the trial court properly declined to deliver Defendant’s requested special jury instruction. Steele Slip op. at 19.
(1) Trial court did not err by failing to further investigate defendant’s complaints about trial counsel or by denying his mid-trial request to represent himself; (2) Use of the words “victim” and “disclosure” by State’s expert witness was not plain error or prejudicial; (3) Trial counsel was not ineffective for failing to object to the use of “victim” and “disclosure” by the State’s expert
State v. Ward, ___ N.C. App. ___; 2022-NCCOA-40 (Jan. 18, 2022). In this Pasquotank County case, the defendant was convicted at trial of statutory rape and abduction of a child. (1) During the first day of trial, the defendant complained about his attorney and claimed to have repeatedly fired him during the case. In response, the trial court allowed the defendant to express his concerns and attempted to address them. On the second day of trial, the defendant asked to represent himself, a request the trial court refused. On appeal, he argued that the trial court failed to inquire into an alleged impasse between trial counsel and the defendant and erred by not allowing him to represent himself. A unanimous Court of Appeals disagreed. While the defendant expressed some dissatisfaction with his attorney, his comments did not evince an absolute impasse in the case. In the court’s words:
Defendant’s complaints . . .were deemed misunderstandings that were corrected during the colloquies by the trial court. . .Defendant may have had a personality conflict with his counsel, and asserted he did not believe defense counsel had his best interest at heart. Defendant has failed to show an ‘absolute impasse as to such tactical decisions’ occurred during trial. Ward Slip op. at 9.
Thus, the trial court did not err by failing to more fully investigate the issue. The trial court also did not err by refusing to allow the defendant to proceed pro se after trial had begun, or by failing to conduct the colloquy for self-represented individuals in G.S. 15A-1242. While waiver of the right to counsel requires a knowing, voluntary, and intelligent waiver by the defendant, the right to self-representation may be waived by inaction, as occurred here. Further, without the defendant making a timely request to represent himself, the defendant is not entitled to be informed about the right to self-representation. The trial court did not err in disallowing self-representation, or in failing to make the statutory inquiry required for self-representation, under these circumstances. According to the court:
Defendant did not clearly express a wish to represent himself until the second day of trial. The trial court gave Defendant several opportunities to address and consider whether he wanted continued representation by counsel and personally addressed and inquired into whether Defendant’s decision was being freely, voluntarily, and intelligently made. Defendant’s arguments are without merit and overruled. Id. at 10-11.
(2) The defendant also argued that the trial court erred in allowing one of the State’s witnesses to use the words “victim” and “disclosure” when referring to the child victim in the case. Because no objection was made at trial, the issue was reviewed for plain error. The court noted that overuse of terms such as “victim” and “disclosure” may, in some circumstances, prejudice a defendant. Here, in light of the evidence at trial, any error did not rise to the level of plain error and did not prejudice the defendant.
(3) Trial counsel for the defendant was not ineffective for failing to object to the use of the terms “victim” and “disclosure” for similar reasons—the defendant could not show prejudice stemming from the use of these words, given the overwhelming evidence of guilt admitted at trial.