This post summarizes cases from the North Carolina Court of Appeals from March 3, 2020.
There was sufficient evidence that the defendant acted with “deceit and intent to defraud” in this common law obstruction of justice case such that the offense was punishable as a felony rather than a misdemeanor
State v. Ditenhafer, ___ N.C. App. ___, ___ S.E.2d ___ (Mar. 3, 2020). Over a dissent, the court held that there was sufficient evidence in this common law obstruction of justice case that the defendant’s obstructive acts were done “with deceit and intent to defraud” such that under G.S. 14-3(b) the offense was punishable as a felony rather than as a misdemeanor. The defendant was told by another family member that the defendant’s daughter was the victim of sexual abuse by the defendant’s husband, who was the daughter’s adoptive stepfather. The State’s evidence showed that despite believing that abuse had occurred, the defendant engaged in a course of conduct whereby she denied child protective services and sheriff’s department investigators access to her daughter and otherwise frustrated their investigation. The defendant intervened in the investigation by remaining within hearing distance or being present during “almost every interview” investigators conducted with her daughter, not permitting her daughter to answer certain questions and answering for her during one interview, sending text messages to her daughter and physically interrupting another interview, “constantly” influencing her daughter’s statements in interviews by verbally abusing and punishing her, instructing her daughter not to speak with investigators, and directing investigators not to speak with her daughter in private. The defendant also directed her daughter to lie to investigators. The court stated that this conduct regarding investigative interviews which occurred while the defendant believed her daughter had been the victim of abuse was sufficient to allow a reasonable juror to infer that the defendant’s denial of access to her daughter was committed with deceit and intent to defraud. The court went on to hold that subsequent similar obstructive actions occurring after the defendant had actually witnessed her daughter being raped by the defendant’s husband was sufficient circumstantial evidence that the defendant had acted with deceit and intent to defraud when she denied investigators access to her daughter while merely under the belief that she had been sexually abused.
Judge Tyson dissented, expressing the view that evidence showing that the defendant “presented her daughter and allowed access every time upon request” by investigators negated the “deceit and intent to defraud” element of the felony version of the offense. Judge Tyson noted that all of the interactions between investigators and the defendant’s daughter were “voluntary,” in that none of them were supported by a warrant or other court order.
(1) The trial court did not err by denying the defendant’s motion for a jury view of the crime scene; (2) The trial court did not err in its jury instructions on self-defense; (3) The trial court did not err in sentencing the defendant at prior-record level IV.
State v. Leaks, ___ N.C. App. ___, ___ S.E.2d ___ (Mar. 3, 2020). In this second-degree murder case, the trial court (1) did not abuse its discretion by denying the defendant’s motion for a jury view; (2) did not err with respect to a jury instruction on self-defense; and (3) correctly sentenced the defendant at prior-record level IV.
The trial court did not abuse its discretion by denying the defendant’s motion requesting a jury view of the crime scene, which the defendant argued was important to give the jury “an accurate view of what [the testifying eyewitnesses] would have been able to see and what kind of obstruction would have been in the line of sight that they would have, the area where this was occurring, as well as the distance involved[.]”. In reaching its reasoned decision to deny the motion, the trial court considered the availability of photographs, diagrams, and other material” and noted that the alleged crime occurred during daylight.
As to the instruction on self-defense, the defendant argued that the trial court erred in instructing the jury that the defendant “believed it was necessary to kill the victim in order to save the defendant from death or great bodily harm” and instead should have instructed that the defendant “believed it was necessary to use deadly force against the victim,” a modification contemplated by the pattern jury instruction on self-defense in murder cases in situations where the evidence shows that a defendant intended to use deadly force to disable but not to kill the victim (N.C.P.I. – Crim. 206.10 n.4). The court recognized that this argument raised the unsettled issue of the extent to which the 2011 enactment of G.S. 14-51.2 and G.S. 14-51.3, creating statutory rights to self-defense, supplemented or superseded North Carolina common law concerning self-defense and defense of another. Prior to the 2011 statutory enactments, the North Carolina Supreme Court in State v. Richardson, 341 N.C. 585, 592-94 (1995) held that “it is not necessary to change the self-defense instruction to read necessary ‘to shoot or use deadly force’ in order to properly instruct a jury on the elements of self-defense.” The defendant argued that, notwithstanding Richardson, it was error to use the “to kill” language because G.S. 14-51.3 does not require a person to believe it is necessary to kill his or her assailant in order to save himself or herself from death or bodily harm and instead authorizes the use of deadly force if a person is “in any place he or she has the lawful right to be” and “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself . . . .” Finding itself bound by Richardson, the court determined that the trial court did not err in its instruction to the jury on self-defense.
With regard to the trial court’s calculation of the defendant’s prior-record-level points for sentencing purposes, a calculation based upon certified copies from the Clerk of Superior Court of the defendant’s criminal records, the court found that the trial court did not err by adding one prior-record-level point for a misdemeanor assault with a deadly weapon conviction that resulted in a PJC and did not err in adding one prior-record-level point for misdemeanor breaking and entering and injury to real property offenses that were consolidated and to which the defendant pleaded guilty. Even if the trial court erred in adding two prior-record-level points instead of one point by treating another breaking and entering conviction as a felony rather than as a misdemeanor, the assumed error was harmless because it did not change the defendant’s prior-record level.
The trial court erred by failing to give the defendant an opportunity to be heard on the issue of attorney’s fees prior to entering a civil judgment against him in a case involving a guilty plea and the Court of Appeals reached the issue despite the limitations on appeals from guilty pleas provided in G.S. 15A-1444
State v. Mangum, ___ N.C. App. ___, ___ S.E.2d ___ (Mar. 3, 2020). Over a dissent and with one judge concurring in result only, the court determined that the trial court erred by failing to give the defendant an opportunity to be heard on the issue of attorney’s fees prior to entering a civil judgment against him. Among several procedural issues in this case was whether the defendant had a right to appeal the judgment given that he had pleaded guilty and G.S. 15A-1444 limits appeals from guilty pleas. Citing State v. Pell, 211 N.C. App. 376 (2011), the court held that the appeal of the civil judgment did “not arise from the underlying convictions” and, therefore, G.S. 15A-1444(a2) did not deprive the court of jurisdiction. Because of issues caused by the defendant’s filing of the record on appeal prior to the time at which the civil judgment was filed, the court engaged in a lengthy discussion of the Rules of Appellate Procedure, as well as principles of law regarding petitions for writs of certiorari, on its way to determining that it had jurisdiction to address the merits of the appeal, either upon direct appeal or by certiorari.
Judge Berger concurred in result only, stating that “anyone interested in efficiencies and saving taxpayer dollars should hope the Supreme Court of North Carolina takes advantage of this opportunity to return us to the plain language of [G.S.] 15A-1444(a2).”
Judge Tyson dissented, expressing the view that because of the defendant’s various “jurisdictional failures and criminal, civil, and appellate rules violations” he had failed to invoke the jurisdiction of the court, as well as the view that the defendant’s petition for certiorari should have been denied for lacking merit. Judge Tyson agreed with Judge Berger’s hope that the state supreme court would “return us to the plain language of [G.S.] 15A-1444(a2).”
The trial court erred by denying the defendant’s motion to dismiss DWI and felony death by motor vehicle charges due to insufficient evidence of impairment; There was sufficient evidence of malice to submit a second-degree murder charge to the jury
State v. Nazzal, ___ N.C. App. ___, ___ S.E.2d ___ (Mar. 3, 2020). In this case arising from a fatal automobile collision involving convictions for second-degree murder, DWI, felony death by motor vehicle, and failure to maintain lane control, the trial court erred by denying the defendant’s motion to dismiss the DWI and felony death by motor vehicle charges due to insufficient evidence of impairment. There was, however, substantial evidence of malice with respect to second-degree murder and the trial court did not err in submitting that charge to the jury, nor did it err in submitting to the jury the failure to maintain lane control charge.
Likening the case to its previous decision in State v. Eldred, 259 N.C. App. 345 (2018), the court found that there was insufficient evidence the defendant was impaired at the time of the collision where the officer who formed the opinion on impairment, an opinion based on observations occurring five hours after the collision, did so “entirely through passive observation” of the defendant, without requesting him to perform any field tests. Moreover, the court noted, the officer did not ask the defendant if or when he and ingested any impairing substances. The trial court erred by denying the defendant’s motion to dismiss the DWI charge, and, because DWI was a necessary element of the felony death by motor vehicle charge, also erred in denying the defendant’s motion to dismiss that charge.
Substantial evidence supported the failure to maintain lane control charge under G.S. 20-146(d)(1), a statute providing the disjunctive mandates that a motorist must (1) drive his or her vehicle “as nearly as practicable entirely within a single lane” and (2) refrain from changing lanes unless he or she “has first ascertained that such movement can be made with safety.” The defendant had argued that the fact that a tow truck partially obstructed his lane of travel meant that it was not “practicable” for him to drive entirely within that lane. The court rejected that argument, finding that a reasonable juror could infer that the defendant could have avoided departing from his lane had he been traveling at a reasonable speed for conditions. The court also explained that there was substantial evidence that the defendant failed to ascertain that his lane change movement could be made with safety as the tow truck also obstructed the defendant’s view of the perils which lay in his chosen lane change path.
The jury was instructed that the defendant would need to be found guilty of either DWI or failure to maintain lane control to be guilty of second degree murder, and having upheld his conviction on the lane control offense the court’s only remaining task was to determine whether there was substantial evidence that the defendant acted with malice. Recounting the evidence in the light most favorable to the state, the court noted that the defendant was driving while knowing that his license was revoked for DWI and non-DWI offenses, was driving at an irresponsible speed for the icy conditions, made an unconventional maneuver to attempt to pass the tow truck partially obstructing his lane, became involved in a severe collision, left the scene without ascertaining whether anyone was harmed, and washed his car in an apparent attempt to destroy evidence and avoid apprehension. The court also noted that the defendant’s extensive record of motor vehicle offenses and car accidents was published to the jury, allowing the jury to infer that he was aware of the risk to human life caused by his behavior on the road but nevertheless once again engaged in dangerous driving with indifference to its consequences. This substantial evidence supported the element of malice by reckless disregard for human life.
Finally, the court determined that any error related to the admission of certain evidence was harmless because that evidence was relevant only to the issue of impairment, and further determined that the trial court’s denial of the defendant’s request for a jury instruction on the defense of accident, assuming the denial was error, was harmless because the jury’s verdicts suggested that it had rejected the notion that the defendant’s fatal unconventional traffic maneuver was unintentional.
The trial court erred in determining that the defendant was ineligible for an expunction of a felonious speeding to elude arrest conviction that arose from an incident where the defendant also was convicted of DWI
State v. Neira, ___ N.C. App. ___, ___ S.E.2d ___ (Mar. 3, 2020). In 2007 the defendant was convicted of DWI and felonious speeding to elude arrest, charges arising from a single incident. In 2018 he filed a petition for expunction of the speeding to elude charge. The trial court denied his petition, agreeing with the State’s argument that because the charge for “fleeing to elude [was filed under] the same file number as DWI” it was an offense “involving impaired driving” and was therefore ineligible for an expunction. While “[w]hether to grant an expunction is a discretionary determination” normally reviewed for abuse of discretion, the court reviewed de novo whether the trial court had erred as a matter of law by interpreting G.S. 15A-145.5(a)(8a) as to render the defendant ineligible for expunction due to the speeding to elude charge being an “offense involving impaired driving as defined in G.S. 20-4.01(24a).” Noting that the speeding to elude conviction involved impaired driving as a matter of fact, the court explained that “the statutory regime defines expunction eligibility in term of the offense in question” and that felonious speeding to elude arrest is not defined in G.S. 20-4.01(24a) as an “offense involving impaired driving.” Thus, the trial court made an error of law in determining that the defendant was categorically ineligible for expunction.
(1) Because the defendant was predisposed to commit criminal offenses which a confidential informant persuaded him to commit, he was not entitled to a jury instruction on the affirmative defense of entrapment; (2) The trial court erred by entering a civil judgment against the defendant for attorney’s fees without giving the defendant an opportunity to be heard on that issue
State v. Pratt, ___ N.C. App. ___, ___ S.E.2d ___ (Mar. 3, 2020). In this drug trafficking case, the trial court did not err by refusing the defendant’s request to instruct the jury on the affirmative defense of entrapment. The trial court did err, however, by entering a civil judgment against the defendant for attorney’s fees without first giving the defendant an opportunity to be heard on that issue.
Viewed in the light most favorable to the defendant, the evidence showed that the defendant was persuaded by Jason Ford, a confidential informant working with the Onslow County Sheriff’s Office, to commit the crimes for which he was convicted. As to the jury instruction on entrapment, the court explained that under precedent from the North Carolina Supreme Court,
The defense of entrapment is available when there are acts of persuasion, trickery or fraud carried out by law enforcement officers or their agents to induce a defendant to commit a crime and when the origin of the criminal intent lies with the law enforcement agencies. We note that this is a two step test and a showing of trickery, fraud or deception by law enforcement officers alone will not support a claim of entrapment. The defendant must show that the trickery, fraud or deception was practiced upon one who entertained no prior criminal intent.
(quoting and adding emphasis to State v. Hageman, 307 N.C. 1, 28 (1982)). The court found that the defendant’s evidence showed the first element of entrapment but did not show the second, noting that the defendant’s testimony established that (1) the criminal opportunity at issue originated with a third party who was not working for or affiliated with the State; (2) the defendant told Ford about the opportunity; and (3) Ford thereafter encouraged the defendant to take advantage of the criminal opportunity and offered to help facilitate. Reviewing the record, the court found that it demonstrated that Ford “merely afford[ed] the defendant an opportunity to commit the crime[s]” which he was predisposed to commit and, therefore, the defendant was not entitled to an instruction on entrapment.
The State conceded that the indigent defendant was not given an opportunity to be heard before the trial court entered the civil judgment against him for attorney’s fees and that this was error. The court set aside the civil judgment and remanded for a new hearing on attorney’s fees.