This post summarizes published criminal opinions from the North Carolina Court of Appeals released on June 21, 2022. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present. The summary of Sanders was prepared by Jeff Welty.
Imposition of satellite-based monitoring for aggravated sexual offense does not represent a violation of the Fourth Amendment.
State v. Anthony, 2022-NCCOA-414, ___ N.C. App. ___ (June 21, 2022). In this Rowan County case, defendant appealed the imposition of lifetime satellite-based monitoring (“SBM”) after his Alford plea to an aggravated sex offense. Defendant argued that the order imposing lifetime SBM violated the Fourth Amendment, as the United States Supreme Court held that SBM is a search subject to the Fourth Amendment in Grady v. North Carolina, 575 U.S. 306 (2015).
The Court of Appeals first took up defendant’s appeal in 2019, reversing the trial court’s order imposing SBM. After the first review of defendant’s case, the North Carolina Supreme Court remanded the case for reconsideration in light of State v. Grady, 372 N.C. 509 (2019). The Court of Appeals reviewed the case again in 2020, considering the relevant Grady precedent, and again reversed the trial court’s order imposing SBM.
After the second consideration of defendant’s case, the North Carolina General Assembly enacted changes to the SBM program in September of 2021; of note is defendant’s ability to petition for termination of SBM after 10 years. The North Carolina Supreme Court remanded defendant’s case a second time so that the Court of Appeals could consider relevant changes in statute and additional caselaw relevant to the SBM program, specifically State v. Hilton, 378 N.C. 692 (2021) and State v. Strudwick, 379 N.C. 94 (2021).
In the current opinion, the Court of Appeals considered the new structure of the SBM program and the three-step reasonableness analysis created by Hilton and Strudwick. The new reasonableness standard requires the court to weigh (1) an offender’s privacy interest, (2) SBM’s intrusion into the privacy of the offender, and (3) the State’s interest in monitoring a sex offender. Notably, the efficacy of SBM is not a factor in this analysis, and the analysis takes place in the present, not in the future when defendant is released from prison. Here, the Court of Appeals first determined that the State presented sufficient evidence to the trial court for it to make an adequate reasonableness determination. Then the court conducted a de novo review of the imposition of SBM and concluded that it was reasonable under the required analysis, upholding the trial court’s order.
Judge Hampson concurred only in the result.
Defense counsel’s presentation of a disputed statement as truthful represented an implied admission of defendant’s guilt.
State v. Cholon, 2022-NCCOA-415, ___ N.C. App. ___ (June 21, 2022). In this Onslow County case, defendant appealed the denial of his motion for appropriate relief (“MAR”) due to ineffective assistance of counsel. In July of 2015, defendant went to jury trial for sexual offenses with a minor and was convicted. After the trial, defendant sent a letter to the trial court requesting a mistrial due to his counsel making an admission of guilt during closing argument. In March of 2016, defendant’s MAR was rejected by the Court of Appeals because defendant’s counsel did not expressly admit guilt or admit each element of each offense during the closing statement in question. Defendant petitioned the Supreme Court for review, which was granted in September of 2017.
The Supreme Court vacated the Court of Appeals decision on defendant’s MAR, and remanded with instructions for the trial court to hold an evidentiary hearing on defendant’s motion. The trial court held this hearing in May of 2019, received only an affidavit from defense counsel with no other evidence or testimony, and then denied defendant’s MAR.
After the trial court’s denial, defendant filed a petition for writ of certiorari with the Court of Appeals. In February of 2020, the Court of Appeals determined that the trial court’s evidentiary hearing was insufficient, vacated the trial court’s order, and remanded the case for an evidentiary hearing. The trial court held a second hearing in September of 2020, allowing testimony from defendant and his counsel, and several documentary exhibits. However, the trial court again denied the MAR on March 31, 2021. Defendant filed a second petition for writ of certiorari and the Court of Appeals granted the petition in July of 2021.
With the current opinion, the Court of Appeals considered whether defendant’s counsel made implied admissions of guilt by admitting that defendant engaged in a sexual act with the victim and that the victim was below the statutory age of consent. The defendant had denied making a statement to police admitting sexual conduct between himself and the victim, and the statement was the subject of a failed motion to suppress during the trial. However, defense counsel presented the disputed admission as truthful in the closing statement. The Court of Appeals found that this served as an implied admission of guilt under the framework of State v. Harbison, 315 N.C. 175 (1985). The court reversed and remanded to the trial court for an evidentiary hearing to determine if defendant consented to this admission of guilt in advance.
There was sufficient evidence of defendant’s intent for kidnapping; trial court was not required to define “serious bodily injury” for purposes of jury instructions.
State v. Grimes, 2022-NCCOA-416, ___ N.C. App. ___ (June 21, 2022). In this Beaufort County case, defendant appealed jury verdicts of guilty for second degree kidnapping and assault on a female. Defendant provided three grounds for appeal, (1) denial of his motion to dismiss the kidnapping charge based upon the State’s failure to offer evidence of intent, (2) that the trial court failed to define “serious bodily injury” in jury instructions, and (3) that the statute creating assault on a female is unconstitutional.
Reviewing the first issue on appeal, the Court of Appeals explained that to prove kidnapping, the State must present sufficient evidence that defendant had specific intent to do serious bodily harm when removing or transporting the victim. The court found that the State presented substantial evidence of defendant’s intent through testimony that defendant put his car in reverse and drove away while the victim’s leg was still outside and the passenger door was open, and continued to drive while the victim pleaded with defendant to stop the car. Defendant also grabbed the victim while driving, pulling her hair and choking her. This behavior represented sufficient evidence that defendant removed the victim with intent to do serious bodily harm to justify the trial court’s denial of the motion to dismiss.
For the second issue, the Court of Appeals found that the trial court used the pattern jury instructions for first and second degree kidnapping when instructing the jury. Those instructions do not contain a definition of “serious bodily injury.” Because defendant could not supply caselaw or a statute requiring this definition in the jury instruction, the lack of a definition did not rise to the level of plain error justifying a new trial.
Defendant’s final issue argued that the statute creating assault on a female was unconstitutional due to discrimination on the basis of sex. However, defendant did not raise the issue at trial and thus the issue was not preserved for appellate review, and the Court of Appeals declined to exercise discretion under Rule 2 of the North Carolina Rules of Appellate Procedure to review the issue. The court found no error in the trial court’s judgment.
Federal adoption of seized funds deprives North Carolina court of jurisdiction over forfeiture.
State v. Sanders, 2022-NCCOA-417, ___ N.C. App. ___ (June 21, 2022). This Iredell County case began when officers with the Mooresville Police Department seized $16,761 from the defendant’s vehicle while defendant fled the scene (the officers apparently suspected the defendant of drug activity). A few days later, the defendant filed a motion in state district court seeking return of the money on the grounds that the seizure was unlawful. The next day, while the motion was pending, the United States Department of Homeland Security “adopted” the case, and the Mooresville Police Department transferred the money to federal authorities. The state district court nonetheless granted the defendant’s motion and ordered the funds returned to the defendant. When the police department responded that it couldn’t comply because it didn’t have the money anymore, the state district court found that it had in rem jurisdiction over the funds, reaffirmed its prior order, held the police department and the city in contempt, and ordered them to purge the contempt by paying $16,761 to the defendant.
The Court of Appeals reviewed the matter under its certiorari jurisdiction. It noted that North Carolina generally employs criminal forfeiture, not civil forfeiture. And criminal forfeiture relies upon in personam jurisdiction, not the in rem jurisdiction associated with civil forfeiture. Therefore, the state district court never had in rem jurisdiction over the money, and its legal reasoning was tainted by this fundamental error. Further, under State v. Hill, 153 N.C. App. 716 (2002), “[o]nce a federal agency has adopted a local seizure, a party may not attempt to thwart the forfeiture by collateral attack in our courts, for at that point exclusive original jurisdiction is vested in the federal court.” The Court of Appeals questioned Hill’s conclusion that adoption by a federal law enforcement agency deprives the state courts of jurisdiction – instead, the court seemed to think that state jurisdiction should be lost only when a federal court acts to exercise jurisdiction – but it felt bound by Hill and accordingly vacated the trial court’s orders. The court noted that defendant’s sole remedy was to seek return of the funds in federal court.
Trial court deprived defendant of his right to allocution by failing to provide an opportunity for defendant to address the court after denying defendant’s request to obtain his papers.
State v. Wright, 2022-NCCOA-418, ___ N.C. App. ___ (June 21, 2022). In this Wake County case, defendant appealed on several grounds after being convicted of violating the provisions of the sex offender registry and attaining habitual felon status. In 2015 defendant was residing at a homeless shelter in Raleigh, but in July of 2015 he was taken to a drug treatment program in Goldsboro. Defendant left the program after only two days, but did not update the address where he was residing with the local sheriff. Defendant was arrested in August of 2015, and indicted for violating the requirements of the sex offender registry.
At trial, defendant made motions to dismiss based in the indictment being defective and for insufficiency of the evidence presented. These motions were denied. During sentencing, the trial court did not allow defendant to get his papers in order to make a statement to the court; after a back-and-forth exchange, the court moved on without allowing defendant to make a statement. The trial court imposed a sentence in September of 2019, and defendant appealed.
Defendant argued that (1) the indictment failed to allege three essential elements of the sex offender registry violation; (2) the trial court erred by failing to instruct the jury as to an element of the offense and misstated an element of the defense; (3) the trial court improperly denied defendant’s motion to dismiss for lack of substantial evidence; (4) the trial court deprived defendant of his right to allocution; and (5) the trial court erred by ordering defendant to pay attorney fees.
The Court of Appeals examined issue (1) of the appeal by defining the three essential elements of the violation: (a) that defendant is a person who must register; (b) that defendant has changed addresses; and (c) that defendant failed to notify the last registering sheriff of the change within three business days. The court concluded that while the indictment could have been more explicit and precise, it was sufficient to support the trial court’s jurisdiction and was not subject to hyper-technical scrutiny.
Taking up issue (2) of the appeal, the court examined the jury instructions contested by defendant. In particular, the Court of Appeals reviewed the instructions regarding (a) whether they adequately put the burden of proof on the State to prove that defendant changed his address, and (b) whether they adequately directed the jury to determine whether the defendant willfully failed to report his change of address (rather than simply that he willfully changed his address). Regarding (a), the court found that the instructions were clear and showed that the standard was beyond a reasonable doubt through repeated portions of the instructions given to the jury. Considering (b), the court examined the language “willfully changed defendant’s address and failed to provide written notice of defendant’s new address” from the instruction given to the jury. When examined with the surrounding language of the instructions that more clearly connected the willfulness requirement with the failure to report, the Court of Appeals found that this language, even if erroneous, did not constitute error because it was not sufficiently prejudicial when considered with the entirety of the instruction.
When considering the existence of substantial evidence for issue (3), the court found testimony in the record showing defendant’s awareness of his obligation to update his address. Additionally, evidence in the record showed that defendant left the drug treatment facility after only two days, and did not return to his registered address, supporting willful failure to update his address with the sheriff. The court also examined the evidence supporting the felonies used to justify habitual felon status, and found sufficient evidence showing the felonies did not overlap and were all committed after defendant turned 18 years old.
The Court of Appeals found that defendant’s issue (4) had merit; the trial court did not adequately allow defendant to address the court and deprived him of his right to allocution. During the exchange with the trial court, defendant repeatedly asked to get his papers. The trial court refused to allow this, but did not provide an opportunity for defendant to speak after the third time defendant referenced needing his papers. Because defendant was not clearly told he could speak without his papers, and the court did not inquire about defendant’s desire to speak without them, the trial court effectively refused to allow defendant to make a statement. Based upon this failure, the court vacated defendant’s sentence and remanded to the trial court for a new sentencing hearing.
Finally, the court denied the petition underlying issue (5), regarding the judgment for attorney fees, as no civil judgment was entered against defendant. An order for attorney fees appears in the record, but it does not appear to be filed with the Wake County Clerk of Court. As a result, the court dismissed this portion of defendant’s appeal.