Case Summaries: N.C. Court of Appeals (March 19, 2024)

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on March 19, 2024. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

Prior record level calculation improperly included previous convictions.

State v. Bivins, COA23-550, ___ N.C. App. ___ (March 19, 2024). In this Cleveland County case, defendant petitioned for a writ of certiorari, arguing error in sentencing him at an inflated prior record level. The State conceded the error. The Court of Appeals vacated the judgment and remanded for resentencing with the appropriate prior record level.

In March of 2021, a jury convicted defendant of two charges related to controlled substances; after the verdict but before sentencing, defendant entered a plea agreement to two additional charges and attaining habitual felon status. During the sentencing hearing, the State submitted a worksheet showing sixteen points assigned to defendant based on his seven prior misdemeanors and three prior felonies, along with defendant being on probation at the time of the offenses. The court sentenced defendant as a level V offender.

Taking up defendant’s argument, the Court of Appeals explained that the trial court improperly calculated defendant’s prior record level, which should have been level IV. The State conceded that defendant was improperly assigned additional points based on previous convictions that should have been excluded. The court walked through the appropriate calculation, noting that the highest total that could be assigned to defendant was thirteen points, justifying level IV. As a result, the court remanded for resentencing.

[The two State v. Jackson cases below are not related]

Evidence of contraband found during search was admissible under inevitable discovery doctrine.

State v. Jackson, COA23-727, ___ N.C. App. ___ (March 19, 2024). In this Avery County case, defendant appealed his conviction for possession of methamphetamine, arguing error in denying his motion to suppress the results from a search. The Court of Appeals disagreed, finding no error.

Defendant was pulled over for driving while his license was revoked. The officer who pulled defendant over asked him to step out of the vehicle so that he could pat him down for weapons. During the pat down, the officer found a pill bottle, and the defendant told the officer the pills were Percocet. The bottle was not a prescription pill bottle. The officer handcuffed defendant and told him he was being detained for having the Percocet pills in a non-prescription bottle. The officer then searched defendant’s person, finding a bag of methamphetamine in defendant’s boot. After defendant was indicted for felony possession of methamphetamine, he moved to suppress the results of the search, arguing no probable cause. The trial court denied the motion, and defendant was subsequently convicted.

Considering defendant’s argument, the Court of Appeals first noted the “plain feel doctrine” allows admission of contraband found during a protective frisk if the incriminating nature of the contraband is immediately apparent to the officer. Slip Op. at 7. The State pointed to State v. Robinson, 189 N.C. App. 454 (2008), as supporting the officer’s actions in the current case; the court rejected this comparison, noting that the supporting circumstances of location and nervousness of the suspect from Robinson were not present here. Slip Op. at 8. The court also rejected the assertion that the unlabeled pill bottle gave the officer probable cause to seize it. However, even if the search and seizure violated defendant’s constitutional rights, the court concluded “the methamphetamine found in defendant’s boot was still admissible because the contraband’s discovery was shown to be inevitable.” Id. at 9. Testimony from the officer at the suppression hearing supported the assumption that he would have arrested defendant for driving with a revoked license if he had not found the contraband. This triggered the “inevitable discovery doctrine” and justified admission of the contraband evidence despite the lack of probable cause for the search. Id. at 10.

Judge Stading concurred in the result only.

Robbery committed after killing represented continuous transaction for felony murder charge; defendant could not claim self-defense as a defense to armed robbery or felony murder charges.

State v. Jackson, COA23-636, ___ N.C. App. ___ (March 19, 2024). In this Guilford County case, defendant appealed his convictions for first-degree murder based on felony murder, armed robbery, and possession of a stolen vehicle, arguing error in (1) denying his motion to dismiss the armed robbery charge and (2) not instructing the jury that self-defense could justify felony murder based on armed robbery. The Court of Appeals found no error.

In August of 2018, defendant was staying at the apartment of a female friend when a series of phone calls from another man woke him up. Defendant went to the parking lot to confront the other man (the eventual murder victim), and defendant testified that the man threatened to kill him. At that point, defendant shot the victim four times, then after a few minutes, stole the victim’s car. The victim’s car was found abandoned in a field a day later. Defendant was indicted for first-degree murder based on felony murder, with the underlying felony being armed robbery. Defendant moved to dismiss the murder and robbery charges, arguing there was insufficient evidence the shooting and taking of the vehicle occurred in a continuous transaction. The trial court denied the motion.

Taking up (1), the Court of Appeals noted that temporal order of the felony and the killing does not matter for a felony murder charge, as long as they are a continuous transaction. Here, the time period between the shooting and defendant taking the victim’s car was short, only “a few minutes” after the shots. Slip Op. at 6. The court also noted that “our Supreme Court has repeatedly rejected arguments a defendant must have intended to commit armed robbery at the time he killed the victim in order for the exchange to be a continuous transaction.” Id. at 7-8. Here, evidence supported the finding of a continuous transaction, and whether defendant initially intended to steal the car was immaterial.

Moving to (2), the court pointed to precedent that self-defense is not a defense for felony murder, but it can be a defense to the underlying felony. However, the court explained that “[b]ased on our precedents, self-defense is inapplicable to armed robbery[,]” and because armed robbery was the underlying felony in this case, defendant was not entitled to a jury instruction on self-defense. Id. at 11.

Defense counsel elicited similar testimony during cross-examination, barring challenge to statement about defendant’s unavailability.

State v. McLawhon, COA23-814, ___ N.C. App. ___ (March 19, 2024). In this Pitt County case, defendant appealed his convictions for statutory sexual offense with a child by an adult, sexual act by a substitute parent or custodian, and indecent liberties with a child, arguing plain error in admitting a detective’s testimony that she could not interview defendant during the investigation. The Court of Appeals found no plain error.

Defendant came to trial for sexual offenses with his adopted daughter. During the trial, the detective who interviewed the victim/daughter testified about her investigation. During this testimony, the detective testified that she had spoken with defendant’s attorney “and was unable to get [defendant] to come in for an interview.” Slip Op. at 6. Defendant did not object to this testimony.

The Court of Appeals rejected defendant’s argument that admitting the detective’s statement was plain error, noting that defense counsel elicited similar testimony on cross-examination. Because defense counsel inquired about the timeline of the investigation and prompted similar testimony from the detective, defendant could not establish plain error from the direct testimony admitted.

Lascivious nature of photographs supported conviction for sexual exploitation of a minor.

State v. Shelton, COA23-729, ___ N.C. App. ___ (March 19, 2024). In this Surry County case, defendant appealed his conviction of first-degree sexual exploitation of a minor, arguing error in denying his motion to dismiss for insufficient evidence showing he took photographs of a minor which depicted “sexual activity.” The Court of Appeals found no error.

In 2021, defendant took nude photographs of his girlfriend’s daughter after promising to buy her whatever she wanted for Christmas. The girl eventually told her school guidance counselor, who reported it to the sheriff’s office. Defendant admitted he had taken pictures of the girl during an interview with law enforcement, but said he deleted the pictures the next day. At trial, the State presented testimony from the guidance counselor, law enforcement officers, and a video of defendant’s confession, while defendant did not present any evidence. Defendant moved to dismiss at the close of evidence but the trial court denied the motion.

Defendant argued that the State “failed to present direct evidence that the photographs showed sexual activity” for sexual exploitation of a minor under G.S. 14-190.16. Slip Op. at 4. The Court of Appeals noted the two relevant cases in this area exploring “sexual activity” in photographs of minors, State v. Ligon, 206 N.C. App. 458 (2010), and State v. Corbett, 264 N.C. App. 93 (2019). The court found the current case more similar to Corbett when looking at the “lascivious way” the photographs exhibited the girl’s body. Slip Op. at 8. Although defendant argued that the photographs themselves must be present in evidence, the court disagreed, noting that defendant “failed to show precedent which states the photographs must be available at trial to prove the charge of sexual exploitation.” Id. at 11.

Defendant did not show reasonableness or lack of acceptable choices to justify defense of necessity.

State v. Templeton, COA23-443, ___ N.C. App. ___ (March 19, 2024). In this Onslow County case, defendant appealed his convictions for felony fleeing to elude arrest and speeding in excess of 80 mph, arguing error in denying his request for an instruction on necessity as a defense. The Court of Appeals found no error.

In September of 2021, defendant led officers of the Onslow County Sheriff’s Office on a high speed chase on his motorcycle. When defendant came for trial, he testified that he had been threatened earlier in the day by members of a motorcycle gang, justifying his actions. During the charge conference, defense counsel requested an instruction on the defense of necessity, but the trial court denied this request, explaining that defendant failed to demonstrate that he had no other acceptable choices.

Taking up defendant’s appeal, the Court of Appeals explained that the defense of necessity required defendant to establish (1) his action was reasonable, (2) it was taken to protect life, limb, or health of a person, and (3) no other acceptable choices were available. The court found that defendant did not demonstrate reasonableness as defendant’s long flight from law enforcement provided “ample time and opportunity to realize the vehicles pursuing him were law enforcement.” Slip Op. at 5. Likewise, the court faulted defendant for not noticing the vehicles chasing him were law enforcement vehicles, not motorcycles. The court found defendant presented no evidence on “the lack of acceptable alternatives or the reasonableness of his actions.” Id. at 7. As a result, the defense of necessity was not applicable.