This post summarizes published criminal decisions from the North Carolina Court of Appeals released on July 20, 2021. As always, these summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present.
Defendant was a person providing “care and supervision” under the felony child abuse statute, G.S. 14-318.4, supporting his felony murder conviction for abuse that caused the child’s death.
State v. Chambers, 2021–NCCOA–348 (July 20, 2021). The child victim in this case, “David,” died primarily as a result of blunt force abdominal injuries, with a number of other external and internal injuries as contributing factors. The state’s evidence indicated that the defendant abused David on several occasions during a two-month period, ultimately leading to the child’s death. The defendant was charged with first-degree murder based on causing the victim’s death in the course of committing felonious child abuse under G.S. 14-318.4(a), and was convicted at trial.
On appeal, the defendant argued that there was insufficient evidence he was a “person providing care to or supervision of” the minor victim, as required for a conviction under G.S. 14-318.4(a), and therefore he could not be guilty of the underlying offense that supported the felony murder conviction. After the reviewing the state’s evidence, the appellate court disagreed. The defendant was romantically involved with “R.W.,” the victim’s mother, and he had recently moved in with R.W. and her children and slept at their house every weeknight. The defendant also helped potty train the children, played with them, put them to bed, cooked meals, and did yardwork around the home. The court acknowledged that the child abuse statute does not define what constitutes “care and supervision,” but prior cases such as State v. Carilo, 149 N.C. App. 543 (2002) have “found guidance in our State’s juvenile code under N.C. Gen. Stat. § 7B-101(3) defining a ‘caretaker.’” To determine whether an adult qualifies under the abuse statute, the court looks at the totality of the circumstances including the duration and frequency of care provided by the adult, the location where it occurs, and the amount of decision-making authority held by the adult. Finding that the state’s evidence in this case “mirrors the evidence we found sufficient in Carrilo,” the defendant’s conviction was unanimously affirmed.
Trial court erred by failing to submit a lesser-included assault to the jury when there was evidence from which a rational juror could have found the lesser offense.
State v. Huckabee, 2021–NCCOA–353 (July 20, 2021). The defendant was charged with assault with a deadly weapon inflicting serious injury for his role in an assault that occurred inside a jail. The defendant and two other inmates assaulted the victim by punching, kicking, and hitting him with a broom. As a result of the assault, the victim suffered a bloody nose, bruises and red marks, and multiple fractures around his nose and eye. During the charge conference at the defendant’s trial, the court agreed to submit the lesser-included offenses of assault inflicting serious injury and simple assault, but did not submit the lesser-included offense of assault with a deadly weapon, despite the defendant’s request. The jury convicted the defendant of the charged offense, and the defendant appealed.
The appellate court agreed with the defendant that it was error not to submit the lesser-included offense of assault with a deadly weapon, and reversed his conviction and remanded for a new trial. The decision to submit a lesser-included offense is reviewed de novo, and the offense should be submitted to the jury if there is evidence in the record, when viewed in the light most favorable to the defendant, from which a rational juror could convict of the lesser charge. In this case, there was evidence from which a rational juror could have concluded that the victim did not suffer serious injury. The victim’s medical treatment was relatively brief, and the trial testimony indicated that the victim’s facial fractures were less serious and less painful than a broken arm, an injury which past cases have held warranted submitting the lesser offense to the jury.
The defendant also challenged the imposition of a civil judgment for attorney fees without providing notice and an opportunity to be heard. Since the underlying conviction was reversed and remanded, the appellate court vacated the civil judgment as well.
(1) Where original indictment sufficiently alleged the essential elements of the offense and the state’s amendment did not substantially alter the allegations, trial court did not err in allowing the amendment; and (2) no error in imposing consecutive sentences where jury unanimously found that each offense was supported by separate and distinct acts.
State v. Scott, 2021–NCCOA–355 (July 20, 2021). The defendant in this case was charged with sexual activity by a substitute parent under G.S. 14-27.31. The defendant lived at the home of the victim and her mother, and he was the father of the victim’s sister. In 2016, while the victim’s mother was out of the house, the defendant engaged in three different sexual acts with the victim. The victim told her mother, who notified law enforcement, and the defendant was arrested and indicted. The defendant’s first trial ended in a mistrial on two counts, but he was retried and convicted on both. On appeal, the defendant raised two issues.
First, the defendant argued that the trial court erred in allowing the state to amend the indictments by including the words “[a]t the time of the offense, the defendant
was residing in the home with” the victim, contending that this was a substantial alteration of the charge. The appellate court disagreed. The original language used in the indictment adequately alleged that the defendant had assumed the position of a parent in the home of the victim, who was less than 18 years old, and engaged in a sexual act with that person, thereby satisfying all the essential elements of the offense. Since the indictment was already facially valid, and it was not necessary under the statute to allege that the defendant also resided at the home, the amendment did not add an essential element and was not a substantial alteration of the charge.
The defendant also argued that it was error for him to receive two consecutive sentences because the predicate acts for both charges occurred during the same incident. The appellate court viewed this argument as “recasting a double jeopardy argument that has not been preserved for appellate review as a hybrid challenge to the unanimity of the verdict and sufficiency of the indictment,” and held there was no error. The two charges were supported by separate and distinct sexual acts, and the jury instructions and verdict sheets clearly indicated the jury was unanimous as to each of those charges; therefore, the trial court did not err in imposing consecutive sentences for the two offenses.
Trial court did not err by denying defendant’s motion for a transcript of prior trial and a continuance, where the motions were made one week before the retrial date.
State v. Gaddis, 2021–NCCOA–351 (July 20, 2021). The defendant’s first trial on charges of DWI, driving while license revoked, and driving without a valid registration or properly displayed license plate ended in a hung jury and mistrial. A retrial was scheduled for approximately two months later. One week before the retrial, defense counsel made a motion for production of the transcript of the prior trial for the purpose of impeaching and cross-examining the state’s witnesses, and moved for a continuance to allow time to receive the transcript. The trial court denied the defendant’s motions, and the retrial was held. Over the state’s objections, the defense called the defendant’s prior trial counsel to testify at the retrial and impeach the state’s witnesses’ testimony. The jury convicted the defendant of all charges and he appealed, arguing that the trial court committed reversible error by denying his motions for a transcript and continuance.
The appellate court characterized the defendant’s arguments as “a puffer fish, attempting to ‘blow up’ Defendant’s lack of a transcript” into a constitutional error attributable to the state or the court, when it was “more accurately described as a desiccated sardine, consciously canned by his trial counsel.” Noting that any error or prejudice was invited by defense counsel’s delay in filing the motion for a transcript, as well as the failure to pursue other options such as issuing a subpoena to have the court reporter read back testimony at the retrial, the appellate court held that the defendant might have a basis to allege ineffective assistance of counsel, but he failed to demonstrate that the trial court committed prejudicial error by denying the pretrial motions.
Judge Murphy dissented and would have held that the trial court erred by denying defendant’s motions without making the necessary findings on whether the transcript was necessary to the preparation of an effective defense or there were adequate alternatives available.
(1) Probation could not be revoked for use of controlled substances, but it could be revoked for commission of a new criminal offense; and (2) the case was remanded for determination of whether good cause existed for not upholding defendant’s statutory confrontation rights at the revocation hearing.
State v. Hemingway, 2021–NCCOA–352 (July 20, 2021). The defendant was on supervised probation for a conviction of possession with intent to sell or deliver marijuana, and the state alleged that he violated his probation by testing positive for cocaine and committing a new criminal offense. At a hearing held on the violation, the defendant’s probation officer testified about the positive drug screen, and a police officer testified about the alleged new criminal activity. Officers used a confidential informant to conduct two controlled buys of a white powdery substance from the defendant, and then obtained a search warrant for his home where they discovered cash and additional drugs, resulting in new criminal charges against the defendant. The informant did not testify at the probation hearing. At the conclusion of the hearing, the trial court revoked the defendant’s probation and the defendant appealed.
The trial court’s oral pronouncement only indicated that the revocation was based on the commission of a new criminal offense, but the written findings indicated that the revocation was based on both allegations, so per case precedent the written order was deemed controlling on appeal. The appellate court agreed that pursuant to the Justice Reinvestment Act, the defendant’s probation could not be revoked for using cocaine; instead, the trial court was only authorized to modify his conditions of probation or impose a 90-day CRV, so the order of revocation based on this allegation was reversed. But the state presented sufficient evidence at the hearing that the defendant also committed a new criminal offense by possessing and selling crack cocaine, which would support revoking the defendant’s probation.
However, rather than affirming the trial court’s order, the appellate court remanded the matter to determine whether the trial court properly exercised its discretion under G.S. 15A-1345(e), which provides that “the probationer may […] confront and cross-examine adverse witnesses unless the court finds good cause for not allowing confrontation.” (Since this was a probation revocation hearing, only the statutory confrontation right was at issue, rather than the confrontation rights under the Sixth Amendment.) The confidential informant did not testify at the hearing, and the defense objected to the admission of her hearsay statements. The trial court overruled those objections based on “the nature of these proceedings,” and the appellate court held that it was unclear whether that ruling reflected an exercise of discretion and finding of good cause. The court distinguished this case from State v. Jones, 269 N.C. App. 440 (2020), where it had previously held that a failure to find good cause was not reversible error, because in Jones the defendant did not challenge the testimony on this basis and did not request findings of good cause as to why confrontation should not be allowed, so no findings were required.
Judge Tyson concurred in part, finding that the defendant waived his statutory confrontation objection and failed to meet his burden of showing prejudice, and the trial court did not err in revoking the defendant’s probation.
(1) Sufficient evidence showed that a taser was a dangerous or deadly weapon, and the trial court properly instructed the jury on this issue; (2) trial court was not required to instruct the jury on serious bodily injury in connection with deadly weapon used to commit armed robbery; (3) no Harbison error where counsel’s admission of guilt to a lesser offense was made with defendant’s knowledge and consent; and (4) trial court erred in contempt proceeding by failing to indicate that findings were made under reasonable doubt standard.
State v. Chavis, 2021–NCCOA–349 (July 20, 2021). The defendant and her boyfriend robbed the victim at his home. During the robbery the two pinned the victim down, hit him with a stick, and stunned him several times with a taser. The victim’s wallet was stolen, and he was left with blood coming out of his ears, a knot on his head, and a taser burn. The defendant was charged with robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. After being convicted at trial, the defendant raised several claims on appeal. The appellate court found no error as to the criminal convictions, but did reverse a related judgment of contempt.
First, the defendant argued that her motion to dismiss at trial should have been granted, because there was insufficient evidence that a taser was a deadly weapon. The appellate court disagreed, citing precedent including State v. Gay, 151 N.C. App. 530 (2002) in which a stun gun previously has been deemed a dangerous or deadly weapon. Moreover, noting that any implement can be a deadly weapon based on the manner in which it is used, in this case the taser was used to stun the victim in the course of beating him and causing injury, providing a sufficient factual basis from which the jury could find that the taser was a deadly weapon.
Second, the defendant argued that the trial judge improperly expressed an opinion during the jury instructions that the taser was a deadly weapon. This issue was not raised at trial level, but as an alleged statutory violation it was nevertheless reviewable de novo on appeal. However, the appellate court held there was no error. During one portion of the instructions, the trial judge identified the taser as the alleged deadly weapon, but the remainder of the instructions made it clear that it was left up to the jury to decide whether the taser was a deadly weapon in this case or not.
Third, the defendant sought plain error review on an unpreserved argument that the trial court erred by failing to instruct the jury on serious bodily injury. This argument was likewise rejected, since serious bodily injury is not an element of armed robbery. The trial court’s instructions on the deadly weapon element of armed robbery correctly explained that it means a weapon “capable of” causing death or serious bodily injury, and as noted above there was a sufficient showing of that capability here since it was used to incapacitate the victim. But the state was not required to prove, nor was the jury required to find, that the victim actually suffered serious bodily injury in this case.
Fourth, the appellate court denied the defendant’s claim of ineffective assistance of counsel, alleging that her attorney conceded her guilt to common law robbery without her knowledge or consent in violation of State v. Harbison, 315 N.C. 175 (1985). The court found that “[t]his assertion is simply not true,” as shown by the transcript. The trial judge engaged in a Harbison inquiry with the defendant immediately after her attorney’s closing arguments, and the defendant stated that she had discussed the admissions with her attorney beforehand and they were made with her consent.
Finally, the defendant appealed the trial court’s order holding her in direct criminal contempt for failing to put on the clothes provided for her. Based on a “plain reading” of G.S. 5A-14(b) and citing to more recent precedent, the appellate court held that the contempt order failed to clearly indicate that the trial judge had applied a reasonable doubt standard when making the factual findings, so the contempt order and judgment were reversed.
(1) Motion to dismiss for insufficient evidence should have been granted on a kidnapping charge based on facilitating commission of a felony where the felony had already been completed; (2) where state failed to give notice of expert testimony, trial court did not err in finding that witness was qualified and allowing limited testimony; (3) medical records were authenticated and admissible as business records; (4) admission of purported hearsay testimony was not plain error; (5) trial court erred by sentencing defendant for both first-degree rape and first-degree kidnapping where rape was element used to elevate kidnapping offense; and (6) trial court erred by imposing civil judgment for attorney fees without giving defendant notice and opportunity to be heard.
State v. Elder, 2021–NCCOA–350 (July 20, 2021). In April of 2007, the defendant came to the victim’s front door under the pretense of demonstrating a vacuum cleaner, but when she opened the door he forced his way inside, tied her up, robbed her, raped her, and left her bound in a closet. After the defendant left, the victim was able to free herself and call her family, who came to her home. The police arrived soon after and the victim was transported to a hospital, where a rape kit was collected and submitted to the SBI for analysis. A male DNA profile was recovered, but at the time there was no match. The victim, who was 80 years old at the time of the assault, died in 2015. A few months later, based on information from forensic investigators in New York, officers obtained a search warrant for the defendant’s DNA and determined it was a match to the sample recovered from the victim’s rape kit. The defendant was indicted for one count each of breaking and entering, common law robbery, assault with a deadly weapon inflicting serious injury, forcible sex offense, and first-degree rape, and two counts of first-degree kidnapping (one count for moving the victim to the back bedroom before the rape, and one count for moving her into a closet in another bedroom after the rape). The defendant was convicted at trial of all charges, and on appeal he asserted error in six areas.
First, the defendant argued that his motions to dismiss for insufficiency of the evidence should have been granted on the rape, kidnapping, and common law robbery charges. The appellate court concluded there was sufficient evidence to submit the rape charge to the jury, based on the victim’s statements, forensic evidence, and the injuries suffered by the victim. Similarly, based on evidence that the defendant stole jewelry off the victim’s person, along with cash and other property from her home, and did so by using force to restrain the victim, there was sufficient evidence to submit the common law robbery charge to the jury. However, the court agreed that there was insufficient evidence to submit the second kidnapping charge to the jury. Both kidnapping indictments alleged that the offenses were in the first-degree because they were done for the purpose of facilitating the commission of another felony – the rape. Finding State v. Morris, 147 N.C. App. 247 (2001) controlling, the court held that the second alleged kidnapping offense, in which the victim was placed in a closet, could not be for the purpose of facilitating the rape crime because it had already been completed. Although facilitating flight after the completion of a felony could also serve as a basis for first-degree kidnapping, that theory was not alleged in the indictment and the state was bound by the particular allegation made. Therefore, the court reversed as to the latter kidnapping conviction, and remanded for resentencing.
Second, the defendant challenged the trial court’s admission of expert testimony from a state’s witness about the sexual assault kit collection process. The defendant argued that the state failed to give notice of its proposed expert or her opinion, and further challenged the witness’s qualifications. Based on the witness’s experience and training in nursing, the appellate court held that the trial court properly exercised its discretion in allowing her testimony. To the extent that the state’s failure to give advance notice was a discovery violation, the trial court appropriately exercised its discretion by limiting the scope of the witness’s testimony. The defendant also contested the witness’s ability to authenticate the victim’s medical records or lay a foundation for their admission as business records. The appellate court disagreed, noting that the witness was a staff nurse at the hospital when the victim was treated, she was familiar with the records at issue, they were made contemporaneously with the victim’s care, and any otherwise inadmissible statements within the records were appropriately redacted.
Third, the defendant challenged the admission of testimony from several witnesses about statements made by the victim after the attack. Since this issue was not raised at trial, the appellate court reviewed only for plain error and found no merit to the argument. The court concluded that the disputed statements were not hearsay because they were either the testifying witness’s own observations or were not offered for the truth of the matter asserted, and the remaining challenged testimony was only corroborative of other evidence already admitted.
Fourth, the defendant argued that the trial court erred by sentencing him for both first-degree rape and first-degree kidnapping, since the rape was used to elevate the kidnapping charge to first-degree. The state contended that this was merely a clerical error, since both charges were consolidated for sentencing. Citing precedent and legislative intent, the appellate court agreed with the defendant and remanded the case to the trial court to arrest judgment on one of the two offenses and only enter judgment on the other.
Finally, granting the defendant’s petition for writ of certiorari on this issue and reaching the merits, the court held that the civil judgment entered against the defendant for attorney’s fees was improperly imposed without giving the defendant notice and an opportunity to be heard. The fee application was submitted four days after the sentencing, and there was no indication in the record that the defendant had a meaningful opportunity to be heard as to the amount. The court vacated the civil judgment and remanded for a new hearing.
Judge Tyson concurred in part, but dissented on the issues of sufficiency of the evidence for the second kidnapping charge, sentencing the defendant for both the rape and kidnapping offenses, and the defendant’s challenge to the civil judgment for attorney’s fees.
(1) Where defendant was resentenced to life with parole for a murder committed while he was a juvenile, trial court did not err by declining to resentence on other offenses or modify the sentences to run concurrently; (2) defendant did not receive ineffective assistance of counsel on this issue; and (3) the court withheld ruling on whether consecutive sentences that impose a de facto sentence of life without the possibility of parole for a juvenile violates the Eighth Amendment, pending the North Carolina Supreme Court’s resolution of that question.
State v. Oglesby, 2021–NCCOA–354 (July 20, 2021). In 2004, the defendant was convicted of criminal offenses related to two convenience store robberies and a separate kidnapping and murder. All three incidents occurred in 2002, when the defendant was 16 years old. The defendant pleaded guilty to two counts of armed robbery, and was subsequently convicted at trial of first-degree murder under the felony murder rule, first degree kidnapping, and attempted robbery for the third incident. Sentencing for all the offenses occurred at a single hearing and the defendant was sentenced to a total of five consecutive active terms, including a term of life without parole for the murder. The defendant appealed his convictions, asserting errors related to the use of aggravating factors and double jeopardy. The appellate courts’ resolution of those claims in State v. Oglesby, 174 N.C. App. 658, (2005), aff’d in part, vacated in part, 361 N.C. 550 (2007) and State v. Oglesby, 186 N.C. App. 681 (2007) (unpublished), disc. review denied, 362 N.C. 478 (2008), ultimately resulted in a remand to the trial court to arrest judgment on the attempted robbery conviction, but otherwise left the sentences undisturbed.
Following the U.S. Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012), the defendant filed an MAR challenging his sentence of life without parole. The state initially requested a stay, arguing that it had not yet been decided whether Miller applied retroactively. Once that issue was resolved by Montgomery v. Louisiana, 577 U.S. 190 (2016), the state agreed that the defendant was entitled to a resentencing hearing. The trial court granted the defendant’s MAR and ordered a new sentencing hearing for the purpose of resentencing the defendant on the murder and arresting judgment on either the kidnapping or attempted robbery conviction in accordance with the prior appellate decisions.
Since the defendant’s first-degree murder conviction was based on felony murder, there was no dispute that the defendant should be resentenced to life with the possibility of parole for that offense, pursuant to G.S. 15A-1340.19B(a). The contested issue at the hearing was whether that life sentence should also be ordered to run concurrently with the kidnapping sentence. After hearing arguments from the state and defense, the trial court ordered that the sentences remain consecutive. The defendant’s consecutive sentences for the two armed robbery convictions were not altered by the order.
The defendant appealed, arguing that the trial court erred by ordering consecutive sentences on the murder and kidnapping convictions, and also by failing to consider the two robbery convictions at the resentencing. The appellate court rejected both arguments. After reviewing the Miller decision and the responsive statutory changes, the court explained that the sentencing judge retains the discretion to order either consecutive or concurrent sentences pursuant G.S. 15A-1354, and the record in this case demonstrated that the judge “duly exercised that discretion by considering all facts presented at the resentencing hearing in reaching its decision.” Additionally, the appellate court held that the defendant failed to preserve the issue of whether the armed robbery sentences should have been included in the resentencing, based on defense counsel’s statements at the resentencing hearing conceding that they were not, as well as the defendant’s failure to include that issue in the notice of appeal. However, even if the issue had been preserved, the court held that the robbery sentences were properly excluded from the resentencing because they arose from a separate transaction. When a juvenile offender is awarded a resentencing under Miller, “the juvenile is only entitled to be resentenced on his murder conviction (i.e., the conviction for which he received mandatory LWOP), and is not entitled to be resentenced for unrelated convictions which arose out of a different transaction.”
The defendant next argued that he received ineffective assistance of counsel, based on his attorney’s acknowledgement at the hearing that the two armed robbery convictions were unrelated and not before the court for resentencing. The appellate court held that the defendant’s claim failed under both prongs of Strickland v. Washington, 466 U.S. 668 (1984). First, defense counsel’s performance was not deficient because the argument that he purportedly should have raised (that the robbery convictions could also be included in the resentencing) “was, at best, resting on unsettled law, and at worst, meritless” as demonstrated by the appellate court’s rejection of the argument above. Second, the defendant likewise failed to demonstrate that he was prejudiced by this alleged failure. Given that the trial court declined to consolidate the two sentences that were before it, there was only a “highly remote possibility” that the court would have consolidated the other sentences, even if that option had been presented.
Finally, the defendant argued that his multiple consecutive sentences constituted a de facto sentence of life without parole in violation of the Eighth Amendment. Noting that there have been conflicting decisions on that issue at the Court of Appeals, and that the North Carolina Supreme Court recently issued a stay in State v. Kelliher, 854 S.E.2d 586 (N.C. 2021) pending discretionary review, the appellate court declined to rule on that argument at this time; instead, the court dismissed the claim without prejudice, allowing it to be raised on a subsequent MAR after Kelliher is decided, if warranted.
Judge Arrowood concurred with the majority in part, but dissented as to ineffective assistance of counsel and would have held that the trial court did have the authority to resentence on the robberies because the sentences were all imposed at the same time, and therefore trial counsel was deficient in failing to advance that argument at the hearing and there was a reasonable probability that the defendant suffered prejudice as a result.