This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on March 5, 2025. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Second trial judge did not have authority to enter order denying motion to dismiss when hearing was held and ruling was rendered by previous trial judge who retired before entry of the order.
State v. Fearns, COA23-650, ___ N.C. App. ___ (March 5, 2025). For more in-depth discussion of this case, see this post by Prof. Shea Denning. In this Granville County case, defendant appealed her conviction for embezzlement, arguing that the trial court lacked authority to enter the order denying her motion to dismiss because it was not issued by the superior court judge who held the hearing. The Court of Appeals vacated the trial court’s order denying Defendant’s motion and remanded the matter for a new hearing on the motion.
In 2008, police began investigating defendant, an employee of a law firm, for allegedly embezzling approximately $50,000 from client trust funds. Due to various complications, including personnel changes and difficulty obtaining records, charges were not brought until January 2019. Defendant moved to dismiss, alleging the delay prejudiced her due to the unavailability of key documents. The trial judge who presided over the motion hearing in January 2020 orally denied it and asked the State to draft the order. This trial judge retired in October 2020. In September 2021, a new trial judge signed the order denying the motion to dismiss, with a notation that the order was issued by the previous trial judge and a citation to Rule 63 of the Rules of Civil Procedure. Defendant was subsequently convicted, and appealed.
The Court of Appeals concluded the second trial judge did not have the authority to sign the order denying defendant’s motion to dismiss. Because Rule 63, which allows a judge to perform the duties of another judge under certain circumstances, applies only to civil cases, “this issue is not governed by Rule 63.” Slip Op. at 10. The court also noted that “[t]he Rules of Criminal Procedure do not address the authority of one judge to enter an order on behalf of another judge in this context,” and the State did not provide any other authority in support. Id. at 11. Looking to State v. Bartlett, 368 N.C. 309 (2015), the court applied the principle that “the judge who presided at the hearing must make the findings of fact.” Slip Op. at 12. Because the second trial judge here did not have authority to enter the order denying defendant’s motion, the court vacated her conviction and remanded for a new hearing on the motion.
Judge Stading concurred by separate opinion, emphasizing “a tempered application of State v. Bartlett” as that case focused specifically on motion to suppress statutes. Id. at 14.
No error when seating a new potential juror from the jury pool, as jury was not yet empaneled and potential members were not yet classified as jurors.
State v. Griffin, COA24-156, ___ N.C. App. ___ (March 5, 2025). In this Mecklenburg County case, defendant appealed his convictions for first-degree murder and possession of a firearm by a felon, arguing the trial court erred by seating a juror from the jury pool instead of elevating one of the prospective alternate jurors. The Court of Appeals found no error.
Defendant was indicted for first-degree murder, possession of a firearm by a felon, and conspiracy to commit robbery with a dangerous weapon related to a 2018 armed robbery. During jury selection, twelve prospective jurors were selected, as well as two prospective alternate jurors. Before the jury was empaneled, prospective Juror No. 7 was excused due to his wife going into labor. The State argued that a new juror should be selected from the jury pool under G.S. 15A-1214(g). Defendant argued that one of the prospective alternate jurors should replace Juror No. 7, and then a new alternate juror should be selected. The trial court agreed with the State, and a new prospective juror was picked from the pool to replace the departing juror. The jury was then empaneled and ultimately found defendant guilty of first-degree murder and possession of a firearm by a felon.
The Court of Appeals explained the core of the question on appeal as “whether those prospective, yet-to-be members of the to-be empaneled jury who have been accepted by each party, are properly classified as jurors or alternate jurors.” Slip Op. at 8. The text of G.S. 15A-1215 governs when an alternate juror becomes a juror, but to properly apply the statute in this situation the court was forced to determine the proper meaning of “juror.” Referencing Garner’s Modern English Usage, the court stated that a “juror” is someone who has been empaneled on the jury and distinguished this from a potential juror or veniremember who hasn’t yet been selected to sit on the jury. Id. at 8. The court held that G.S. 15A-1214(g) was controlling in this situation, as it permitted the trial court to substitute a new prospective juror when a juror that has been accepted but not empaneled is challenged for cause. Concluding the analysis, the court noted that since defendant did not argue or show prejudice on appeal, his “contentions as to statutory error are overruled.” Id. at 12. Defendant also attempted to argue that his constitutional right to a fair and impartial jury was infringed, but the court held he failed to preserve this argument as he did not raise it at trial.
Testimony from defendant’s psychologist did not establish the mitigating factor that his schizophrenia significantly reduced his culpability for the murder.
State v. Rojas, COA24-690, ___ N.C. App. ___ (March 5, 2025). In this Gaston County case, defendant appealed his aggravated sentence for second-degree murder, arguing that the sentencing judge erred in failing to find the statutory mitigating factor that he was suffering from a mental or physical condition that significantly reduced his culpability. The Court of Appeals found no error.
This matter previously reached the Court of Appeals in the unpublished State v. Rojas, No. COA20-810. Defendant murdered his girlfriend in May 2016 by stabbing her over 100 times and leaving her to bleed to death in their bathtub. He was initially found incompetent to stand trial due to psychotic disorders but later deemed competent after psychiatric care. At the resentencing hearing (the original sentence having been vacated in the previous appeal), defendant presented testimony from a forensic psychiatrist who diagnosed him with schizophrenia. However, the psychiatrist stated he couldn’t testify with reasonable medical certainty whether schizophrenia contributed to the violent behavior at the time of the murder. Defendant also testified, blaming medication and hallucinations for his actions, but he offered no other expert testimony. The trial court found two aggravating factors (especially heinous, atrocious, or cruel; and taking advantage of a position of trust) and three mitigating factors (support system, positive employment history, and good treatment prognosis), but ultimately determined the aggravating factors outweighed the mitigating factors, imposing an aggravated sentence.
On appeal, defendant argued that the sentencing court ignored the credible testimony of the forensic psychologist that he suffered from schizophrenia, and it contributed to his culpability for the crime. The Court of Appeals disagreed, concluding that defendant could not show “substantial, uncontradicted, and manifestly credible evidence” of the mitigating factor as his “only expert witness could not, and did not, testify with reasonable medical certainty that defendant’s schizophrenia contributed to the murder or otherwise significantly reduced defendant’s culpability for the offense.” Slip Op. at 12. Therefore, the court held that the sentencing judge did not err in declining to find the mitigating factor.
Testimony from police officer and forensic expert that substance appeared to be marijuana was properly admitted and supported defendant’s convictions, despite lack of testing confirming substance was not hemp.
State v. Ruffin, COA24-276, ___ N.C. App. ___ (March 5, 2025). In this Martin County case, defendant appealed his convictions for trafficking in heroin offenses, sale of marijuana, and delivery of marijuana, arguing several errors related to the trial court’s admission of testimony regarding the identification of marijuana and errors in sentencing. The Court of Appeals found no error.
In 2021, a confidential informant (CI) contacted defendant, seeking to buy seven grams of fentanyl “and some marijuana.” Slip Op. at 3. Defendant quoted prices for both, and the CI paid defendant and received two bags of the substances. Defendant was arrested shortly after leaving the scene. At trial, the detective who worked with the CI testified based on his training and experience that the plant material appeared to be marijuana. A forensic scientist from the state crime lab also testified about the plant material, concluding it was “plant material belonging to the genus cannabis containing tetrahydrocannabinol [THC].” Id. at 4. However, she also testified that the lab lacked the ability to distinguish between marijuana and hemp, and that it was possible the plant material was hemp. Defendant requested and the trial court provided a jury instruction stating that the term marijuana does not include hemp or hemp products. Defendant was subsequently convicted, and received consecutive sentences of 70 to 93 months for his offenses.
Taking up defendant’s arguments, the Court of Appeals first addressed whether it was error to allow the detective to testify that the plant material was marijuana as lay opinion testimony. Because defendant did not object to the testimony at trial, the Court reviewed for plain error. Referencing previous case law, the court noted that a police officer experienced in the identification of marijuana may testify to his visual identification of evidence as marijuana. Defendant pointed to State v. Ward, 364 N.C. 133 (2010), to argue that an officer’s visual identification is no longer reliable since the legalization of hemp. The Court distinguished Ward, noting “the standard for lay opinion testimony under Rule 701— including [the detective’s] testimony—is unchanged in light of Ward.” Slip Op. at 9. Subsequent caselaw also supported that “law enforcement officers may still offer lay opinion testimony identifying a substance as marijuana.” Id. As a result, the court found no error in admitting the testimony.
The court applied the same plain error analysis to the forensic expert’s testimony as defendant did not object to her testimony either. Because she was testifying as an expert under Rule 702, the court looked to State v. Abrams, 248 N.C. App. 639 (2016), to determine if the expert followed reliable procedures for identifying the substance as marijuana. The court was satisfied that the expert followed acceptable procedures as established by previous caselaw, and found the testimony reliable under Rule 702, meaning it was not error to admit her testimony.
Defendant also argued that it was error to deny his motion to dismiss because the State did not provide adequate evidence the substance was marijuana not hemp. The court disagreed, pointing to the testimony of the detective and forensic expert discussed above, as “our courts have consistently affirmed that testimony identifying a substance as marijuana—from a law enforcement officer as well as a forensic expert—is sufficient to take the matter to the jury.” Id. at 15.
Although the trial court used the appropriate pattern jury instruction, along with an alteration specifically requested by defendant, defendant argued it was error to omit instruction that “marijuana has a Delta-9 THC content in excess of 0.3%, while hemp has a Delta-9 THC content of 0.3% or less.” Id. at 18. Applying the plain error standard again, the court found no error, as the court held that the instruction given was an accurate statement of the law.
Finally, the court reached the sentencing issues, where defendant argued he was improperly sentenced for selling and delivering marijuana in the same transaction. The court concluded that any error if it existed was harmless, as “the trial court consolidated those convictions to run concurrently with the longer sentence for Trafficking in a Mixture Containing Heroin by Transportation.” Id. at 20. Defendant also argued that the prosecutor offered improper information that influenced sentencing considerations, as the prosecutor referenced a victim who died and a pending death by distribution charge against defendant. However, “the trial court here expressly rejected the prosecutor’s arguments regarding the separate charges on the Record and affirmatively stated that other charges would be considered in separate proceedings,” meaning there was no evidence that defendant received a sentence based on improper information. Id. at 25.
[State v. Watlington, COA23-1106, opinion withdrawn on April 7, 2025]