Case Summaries – N.C. Court of Appeals (July 19, 2022)

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on July 19, 2022. This summary will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

(1) Indictment for going armed to the terror of the public must allege an act on a public highway; (2) a private apartment complex parking lot does not represent a public highway for purposes of going armed to the terror of the public.

State v. Lancaster, 2022-NCCOA-495, ___ N.C. App. ___ (July 19, 2022). In this Craven County case, defendant was convicted of possession of a firearm by a felon, resisting a public officer, injury to personal property, and going armed to the terror of the public for defendant’s actions in an apartment complex parking lot. On appeal, the Court of Appeals determined that the trial court lacked jurisdiction for the charge of going armed to the terror of the public because the indictment did not allege the acts supporting the conviction occurred on a public highway.

The court first established the four essential elements of going armed to the terror of the public, which are “(1) armed with unusual and dangerous weapons, (2) for the unlawful purpose of terrorizing the people of the named county, (3) by going about the public highways of the county, (4) in a manner to cause terror to the people.” Slip Op. at ¶ 7 (quoting State v. Staten, 32 N.C. App. 495, 497 (1977)). The court then examined the common law history of going armed to the terror of the public, explaining that historically “a defendant could commit the crime of ‘going armed to the terror of the public’ in any location that the public is likely to be exposed to his acts, even if committed on privately-owned property.” Slip Op at ¶ 8.

Despite the common law interpretation of the crime, the court determined that the Staten requirement of an act on a “public highway” represented controlling precedent, and no North Carolina Supreme Court case had examined the public highway issue since Staten. After confirming that an act on a public highway was an essential element of the crime, the court found that the parking lot of a private apartment complex was not a “public highway” for purposes of going armed to the terror of the public.

Judge Griffin concurred in part and dissented in part with a separate opinion.

(1) A show-up identification is subject to the five-factor Malone substantial likelihood examination; (2) circumstantial evidence is sufficient to support the conclusion that defendant was operating a vehicle for DWI conviction; (3) a jury instruction on flight requires evidence of defendant’s attempt to avoid apprehension.

State v. Rouse, 2022-NCCOA-496, ___ N.C. App. ___ (July 19, 2022). In this Brunswick County case, defendant appealed his conviction for habitual impaired driving. The Court of Appeals found no error after examining the trial court’s denial of defendant’s motion to suppress and motion to dismiss, and the jury instruction provided regarding defendant’s flight from the scene.

Evidence admitted at trial showed that a witness heard a crash and ran outside to see defendant with a bloody nose sitting behind the wheel of his truck, which was crashed into a ditch. After talking with the witness for several minutes, defendant walked off down the highway and up a dirt road into the woods. Law enforcement arrived, received a description from the witness, and conducted a search, finding defendant behind a bush in the woods 15 minutes later. After handcuffing defendant, the law enforcement officer conducted a “show-up” identification by taking defendant back to the witness and allowing the witness to identify defendant through the rolled-down window of the police vehicle.

The court first examined defendant’s motion to suppress the eyewitness “show-up” identification on due process and Eyewitness Identification Reform Act grounds (“EIRA”) (N.C.G.S § 15A-284.52(c1)-(c2)). Following State v. Malone, 373 N.C. 134 (2019), the court performed a two-part test, finding that although the “show-up” was impermissibly suggestive, the procedures used by law enforcement did not create a likelihood of irreparable misidentification when examined through the five reliability factors articulated in Malone. Applying EIRA, the court found that all three of the requirements in subsection (c1) were followed, as law enforcement provided a live suspect found nearby a short time after the incident and took photographs at the time of the identification. The court also held that subsection (c2) imposes no duty on law enforcement, and instead imposes a duty to develop guidelines on the North Carolina Criminal Justice Education and Training Standards Commission.

The court then reviewed defendant’s motion to dismiss for insufficient evidence showing that he was driving the vehicle. Applying State v. Burris, 253 N.C. App. 525 (2017), and State v. Clowers, 217 N.C. App. 520 (2011), the court determined that circumstantial evidence was sufficient to support a conclusion that defendant was driving the vehicle. Because the circumstantial evidence was substantial and supported the inference that defendant was driving, the lack of direct evidence did not support a motion to dismiss.

Finally, the court examined the jury instruction given regarding defendant’s flight from the scene, Pattern Jury Instruction 104.35. Defendant argued that the evidence showed only that he was leaving the scene of the accident and walking towards his home, actions that did not represent evidence of consciousness of guilt. The court applied the extensive caselaw finding no error in a flight jury instruction when evidence shows the defendant left the scene and took steps to avoid apprehension. Because evidence in the record showed that defendant fled and hid behind a bush, the court found sufficient evidence to support the use of the jury instruction, despite defendant’s alternate explanation of his conduct.