Case Summaries: N.C. Court of Appeals (May 7, 2024)

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on May 7, 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.

Search warrant for residence was supported by evidence connecting occupant of the residence to drug trafficking.

State v. Boyd, COA23-984, ___ N.C. App. ___ (May 7, 2024). In this Durham County case, defendant appealed after he pleaded guilty to two counts of attempted drug trafficking after denial of his motion to suppress the results of a search warrant for lack of probable cause. The Court of Appeals found no error.

In April of 2019, Durham Police obtained an anticipatory search warrant for defendant’s residence based upon information from a confidential informant and surveillance of a vehicle associated with drug trafficking in the Durham area. After a controlled buy, police observed defendant and another man go to the property identified in the anticipatory warrant, and seized large amounts of currency, cocaine, marijuana, and drug paraphernalia.

The Court of Appeals took up defendant’s argument, first referencing State v. Bailey, 374 N.C. 332 (2020), while explaining that a nexus between the illegal activity and the residence being searched must be established when a search warrant is sought in connection with illegal activity observed outside the residence. Here, the court walked through the facts in the affidavit and application for the search warrant, concluding that “[a]s in Bailey, these facts support a reasonable inference that Defendant was engaged in drug trafficking and establishes a nexus between the drug trafficking and Defendant’s residence.” Slip Op. at 9.

Definition of “crash” for G.S. 20-166 includes intentionally hitting victim with vehicle.

State v. Buck, COA23-606, ___ N.C. App. ___ (May 7, 2024). In this New Hanover County case, defendant appealed his convictions for assault with a deadly weapon with the intent to kill inflicting serious injury (AWDWIKISI), felony hit-and-run with serious injury, and robbery with a dangerous weapon, making several arguments centered around the definition of “crash” under G.S. 20-166, the mutually exclusive nature of the AWDWIKISI and hit-and-run charges, and a clerical error in the judgment. The Court of Appeals found no merit with defendant’s arguments regarding his convictions, but did find that the trial court made a clerical error in the hit-and-run judgment and remanded for correction of that error.

In January of 2021, defendant met the victim to sell him marijuana; instead of paying defendant for the marijuana, the victim grabbed the drugs and ran. Defendant hit the victim with his car, got out of the vehicle and went through the victim’s pockets, then drove away without calling for assistance.

Defendant argued that “crash” as used in the section defining a hit-and-run (G.S. 20-166) could not refer to an intentional action because it was the same as an “accident.” To support this argument, defendant pointed to the definition section G.S. 20-4.01(4c), defining “crash” and including the following language: “[t]he terms collision, accident, and crash and their cognates are synonymous.” Rejecting defendant’s interpretation, the Court of Appeals explained “[t]he General Assembly chose not to discriminate between intended events and unintended events; therefore, so long as there is injury caused by a motor vehicle— intent is irrelevant.” Slip Op. at 6-7. After the court established that defendant could be charged with hit-and-run for an intentional action, it dispensed with defendant’s argument regarding his AWDWIKISI charge, explaining “[c]onvictions of AWDWIKISI and felony hit and run with serious injury are not mutually exclusive because assault is intentional, and a ‘crash’ can also be intentional.” Id. at 10. Based on this reasoning, the court rejected defendant’s various challenges to his convictions.

Moving to the clerical error, the court acknowledged that the judgment finding defendant guilty of hit-and-run referenced G.S. 20-166 subsection “(E)” instead of the appropriate “(a)” for his conviction. The court remanded to allow correction of the clerical error.

Short form indictment was sufficient for forcible sex offense based on requirements of statute.

State v. Crowder, COA23-833, ___ N.C. App. ___ (May 7, 2024). In this Yancy County case, defendant appealed his conviction for second-degree forcible sex offense, arguing defective language in the indictment deprived the trial court of jurisdiction. The Court of Appeals found the indictment was sufficient and the trial court had jurisdiction.

The Court of Appeals first explained that under G.S. 15-144.2(c), a short-form indictment alleging that the defendant engaged in a sex offense with a physically helpless person is acceptable, and this type of indictment was used in the current case. Defendant argued that under State v. Singleton, 285 N.C. App. 630 (2022), the short-form indictment was insufficient. The court disagreed, explaining that the short-form indictment in Singleton was for a second-degree rape charge, and the statute in question “differs slightly from its counterpart statute allowing a short-form indictment to be used to charge a sexual offense charge” meaning the issues identified in Singleton did not support defendant’s argument in the current case.  Slip Op. at 3.

A single kick to a dog constituted “cruelly beat” for felony cruelty to animals.

State v. Doherty, COA23-820, ___ N.C. App. ___ (May 7, 2024). In this Davie County case, defendant appealed his conviction for felony cruelty to animals, arguing error in (1) denying his motion to dismiss because a single kick to a dog could not constitute “cruelly beat” and (2) failing to instruct the jury on the lesser-included offense of misdemeanor cruelty to animals. The Court of Appeals found no error.

In November of 2019, a woman was walking her dog on the street in front of defendant’s house, when a car approached. Because there were no sidewalks, the woman and her dog stepped into defendant’s yard to let the car pass; the car stopped because the occupants knew the woman, and they chatted about her husband’s health issues. As this conversation took place, defendant ran out of his home and kicked the dog in the stomach, then ran back into his house. The dog had serious internal injuries and required emergency veterinary treatment, including an overnight stay in the veterinary hospital.

Taking up (1), the Court of Appeals explained that the statute did not define “cruelly beat” for purposes of cruelty to animals, making this a matter of first impression. The court first looked to the meaning of “beat” and whether it required repeated strikes, determining that it “could be understood to mean both a hard hit or strike, or repeated strikes.” Slip Op. at 9. Taking this understanding and combining it with the intent of the General Assembly to protect animals from unnecessary pain, the court concluded “under the plain meaning of the words, ‘cruelly beat’ can apply to any act that causes the unjustifiable pain, suffering, or death to an animal, even if it is just one single act.” Id.

Moving to (2), the court explained that defendant was not entitled to the instruction on a lesser-included offense as, after establishing the “cruelly beat” element of the charge, “there was no dispute as to the evidence supporting felony cruelty to animals.” Id. at 15.

Testimony from girlfriend and forensics expert were properly admitted in first-degree murder case.

State v. Fernanders, COA23-837, ___ N.C. App. ___ (May 7, 2024). In this Polk County case, defendant appealed his convictions for first-degree murder and possession of a stolen vehicle, arguing error in six areas of evidentiary rulings by the trial court. The Court of Appeals found no error.

In March of 2016, defendant, along with his girlfriend and another man, drove a stolen car from Greenville, SC, to Polk County. Defendant first tried to rob a gas station, but was held back by his girlfriend. Afterwards, defendant pulled up next to a stopped truck and asked the driver for directions. After the exchange became heated, defendant shot and killed the driver. Defendant fled the scene, but was eventually arrested in Tallahassee, FL, and came to trial.

The Court of Appeals took up each of defendant’s six issues in turn. First, defendant argued that admitting testimony related to a robbery in Gainesville, FL, after the murder was prejudicial; presuming arguendo that admitting the evidence was error, the court held that overwhelming evidence still supported defendant’s conviction. In the second issue, defendant argued that admitting lay opinion testimony from his girlfriend identifying a gun used in the murder was error, and again the court found that even if it was error, it was not prejudicial due to the overwhelming evidence. In the third issue, defendant argued that admitting ten videos and five photographs of him stealing the vehicle in South Carolina was improper under Rule of Evidence 403; the court again disagreed, noting that the evidence was probative to the elements of possessing a stolen vehicle and not unduly prejudicial. Taking up the fourth issue, the court rejected defendant’s argument that the murder and possession of a stolen vehicle charges lacked a transactional connection and should have been severed. The court noted that defendant possessed the stolen vehicle when he shot the victim, and used the same gun in both crimes.

In the fifth issue, defendant challenged the State’s expert testimony regarding the shell casing found at the scene under Rule of Evidence 702. The court noted “[t]he State’s expert not only explained the standards she had followed, but also explained how she had applied these standards within the context of the cartridges in the present case.” Slip Op. at 14. Defendant also argued that the testimony was “inherently subjective,” but the court rejected this as a reason to exclude the testimony, noting that defense counsel was able to extensively cross examine the expert and the ultimate determination of weight and credibility was for the jury. Id. at 15. Finally, the court considered defendant’s argument that the trial court’s decisions represented cumulative error, explaining that the decisions were “not demonstrated to be abuses of discretion nor prejudicial,” and thus did not deprive defendant of a fair trial. Id. at 16.

Judge Stroud concurred in the result only.

Lack of specific dates did not render indictments for rape and sex offense defective under policy of leniency.

State v. Gibbs, COA23-566, ___ N.C. App. ___ (May 7, 2024). In this Watauga County Case, defendant appealed his convictions for three counts of second-degree rape and one count of sex offense in a parental role, arguing four points of error. The Court of Appeals found no error.

In 2020, a sergeant with the Watauga County Sheriff’s office discovered a 2004 report prepared by a social worker documenting allegations that defendant was abusing his step-children. The sergeant contacted the victim in this case and conducted an interview, where she recounted two instances of abuse, one involving oral sex after a science fair when the victim was in the seventh grade, and the second where sexually assaulted her in a car in the garage of their house, along with ongoing abuse for several months thereafter. The matter came for trial in 2023, and the victim testified about defendant’s abuse consistent with the interview.

The Court of Appeals first took up defendant’s argument that the indictments were deficient and fatally defective, finding no merit to the argument. Defendant argued that the indictments did not specifically identify the days on which the alleged offenses occurred, and that the multiple charges of second-degree rape were identical and could not be distinguished by the jury. The court explained that a policy of leniency applies to child sex abuse cases, and noted that this was expressly incorporated into G.S. 15-155 “by expressly providing no stay or reversal of a judgment on an indictment when time is not of the essence of the offense.” Slip Op. at 6. The court also noted that the jury was instructed that it “must find separate, distinct incidents of rape for each count.” Id. at 8.

In defendant’s second argument, he contended error for denying his motion to dismiss for insufficient evidence, pointing to the lack of physical evidence and the victim’s previous refusal to prosecute the violations. The court disagreed, noting “[o]ur courts have repeatedly held victim statements and testimony alone are sufficient evidence to support a conviction.” Id. at 10. Here, the victim’s testimony established the events in question and the constructive force by defendant necessary to support the convictions.

In the third argument, defendant argued the jury instructions were insufficient, but the court disagreed, noting it had already addressed defendant’s arguments regarding the lack of specific dates for the offenses and separate, distinct incidents for each rape charge. The court also dispensed with defendant’s final issue, the trial court’s decision to impose consecutive sentences, explaining that it was within the trial court’s discretion and each sentence was within the presumptive range.

Defendant failed to renew motion to sever charges at trial, waiving argument.

State v. Groat, COA23-703, ___ N.C. App. ___ (May 7, 2024). In this Jackson County case, defendant appealed his convictions for attempted first-degree kidnapping and additional sexual offenses with two minors, arguing error in (1) joining his attempted kidnapping charge with the sexual offenses for trial, and (2) denying his motion to dismiss the attempted kidnapping charge. The Court of Appeals determined that defendant waived (1) and found no error in (2).

In 2011, defendant began dating the mother of his two sexual assault victims. Over the next few years, defendant sexually assaulted both children, getting one of them pregnant. Eventually, defendant was arrested for the abuse, and during his pretrial release, he was restricted from contacting any minor under sixteen, and was ordered to reside with his parents in Michigan. Defendant violated these terms by contacting one of the victims; police told the victim to set up a meeting between them in Sylva, NC. Defendant was subsequently arrested at this meeting with duct tape, pepper spray, a firearm, and cable ties. Before defendant came to trial, he moved to sever the attempted kidnapping charge from the sexual abuse charges, but the trial court denied the motion. Defendant did not renew the motion at trial.

Taking up (1), the Court of Appeals explained that defendant waived his argument by failing to renew his motion to sever at trial. The court noted G.S. 15A-927 and State v. Silva, 304 N.C. 122 (1981), as support for this conclusion, while dismissing the conflicting precedent in State v. Wood, 185 N.C. App. 227 (2007), with the explanation that it “cannot overrule our state’s highest court.” Slip Op. at 6. Moving to (2), the court noted the substantial evidence supporting the attempted kidnapping charge, including the circumstances around defendant’s arrest, defendant’s own statements, and the supplies and preparations he made for the attempted kidnapping.

Victim’s testimony was admissible where she did not specifically reference repressed memories.

State v. Heyne, COA23-224, ___ N.C. App. ___ (May 7, 2024). In this Davie County case, defendant appealed his conviction for first-degree rape, arguing error in (1) admitting lay testimony about repressed memories without expert support, (2) allowing lay opinion testimony, and (3) allowing improper statements during the State’s closing argument. The Court of Appeals found no prejudicial error.

In 2017, the victim called law enforcement to report a rape that occurred in 2003, when she was in sixth grade. The victim told law enforcement she was raped by defendant while spending the night at his house visiting his daughter. Although the victim did not tell her parents about the incident at the time, she later discussed the events in therapy and testified at trial about the events at defendant’s house.

Taking up (1), the Court of Appeals explained that under State v. King, 366 N.C. 68 (2012), a witness may testify about the content of repressed memories without expert support, but “unless qualified as an expert or supported by admissible expert testimony, a witness ‘may not testify that the memories were repressed or recovered.’” Slip Op. at 7, quoting King at 78. Here, the victim did not testify about repressed memories at any point, and a family friend’s statement referencing a repressed memory was not offered as substantive evidence but as evidence of the victim’s consistent statements.

Moving to (2), defendant argued that testimony from a victim’s advocate that failing to remember details from long ago was “normal” represented improper lay opinion testimony. The court disagreed, explaining that it was reasonable to conclude the witness’s testimony “was based on her rational perception that memories fade with time.” Id. at 13.

Reaching (3), defendant objected to statements by the prosecutor that the victim’s eating disorder and behavioral issues were responses to rape. However, the court explained that the prosecutor merely recounted issues the victim experienced, “then argued a reasonable inference from these facts that [the victim’s] behaviors may have been responses to a rape.” Id. at 15. These statements were also a small part of the closing argument, leading the court to conclude they were not prejudicial even if improper.

Jail phone calls supported constructive possession of drugs and firearm when defendant instructed another to find and hide the contraband; no requirement for trial court to instruct jury that it must consider all evidence when allowing review of a specific portion of testimony.

 State v. Montgomery, COA23-720, ___ N.C. App. ___ (May 7, 2024). In this Rutherford County case, defendant appealed his convictions for possession of a firearm by felon, possession of methamphetamine, and attaining habitual felon status, arguing error in (1) denying his motion to dismiss based on insufficient evidence he possessed the firearm and drugs, (2) failing to instruct the jury on theories of attempt, and (3) permitting the jury to hear recordings of defendant’s calls from jail a second time without appropriate jury instruction. The Court of Appeals found no error.

Beginning with (1), the Court of Appeals explained that at trial, the State offered testimony from a police officer that defendant made several phone calls while in jail. The substance of these calls were that defendant left something in his coat and that he would pick it up later. Police later met with the woman defendant was calling, and found the coat with two bags of methamphetamine, as well as a firearm hidden at another acquaintance’s house. The court noted that defendant’s instructions and knowledge of where these items were hidden, and the instructions he gave to those on the outside through the phone calls, represented constructive possession to support the conviction. The court explained the “jail calls reflect that [defendant] sought to control the disposition and use of both the gun and the methamphetamine by directing [the woman] to remove them from the scene of his arrest.” Slip Op. at 6. The court also pointed out that this evidence could support the jury concluding defendant actually possessed the items.

In (2), defendant argued that he did not successfully convince the woman to move the items, warranting a jury instruction on attempted possession as a lesser alternative. The court disagreed, explaining “the State’s evidence actually demonstrated that [the woman] had, in fact, moved the items by the time she was approached by law enforcement . . . [t]here was therefore no evidence tending to show an attempted possession.” Id. at 8.

Dispensing with (3), the court noted that the statement defendant relied on in State v. Weddington, 329 N.C. 202 (1991), was dicta, and no caselaw required the trial court to instruct the jury to remember all the previous evidence when allowing review of a specific part of testimony. The court concluded “[t]he jury was appropriately instructed that it should consider all the evidence during the jury charge, and the trial court scrupulously observed the requirements of [G.S.] 15A-1233(a) during the replay.” Id. at 10.

Officers had probable cause for search warrant prior to unsuccessful knock-and-talk, and did not linger too long in the curtilage of defendant’s residence.

State v. Norman, COA23-471, ___ N.C. App. ___ (May 7, 2024). In this Henderson County case, defendant appealed after pleading guilty to injury to real property, felony breaking and entering, safecracking, and related offenses, arguing error in denying his motion to suppress because officers remained too long in the curtilage of his residence after an unsuccessful knock and talk. The Court of Appeals majority found no error.

In February of 2021, police officers responded to a report of a break-in to an ATM along with theft of several cartons of cigarettes, alcohol, and lottery tickets. Soon thereafter, an employee from the State Lottery Commission informed police that someone attempted to redeem one of the stolen tickets at a general store. Police obtained surveillance from the store, showing a black dodge Durango with a missing front bumper and distinctive rims. An officer spotted the vehicle nearby, and performed a knock and talk at the residence. No one answered the door, but officers observed cigarettes and a lottery ticket matching the stolen items sitting on the front seat. After running the VIN, officers determined the vehicle was displaying fake Maryland plates but was actually registered to defendant, who was on supervised probation. Eventually officers noticed someone emerge from the residence and take things from the Durango, finding the cigarettes and lottery ticket on the ground. The officers performed a sweep of the house, finding defendant inside, and searched the house based on defendant’s probation status. They later obtained a search warrant for the Durango, finding cigarettes and tools related to the break-in.

Considering defendant’s argument, the Court of Appeals noted that the officer had probable cause to seek the search warrant before the knock and talk occurred based on the description of the vehicle and the fake plates, along with the cigarettes and lottery ticket he observed inside. The court also pointed to State v. Treece, 129 N.C. App. 93 (1998), for the proposition that officers may secure a scene to protect evidence. Slip Op. at 11. Here, the nexus of the vehicle matching the description, the fake plates, and the proximity to the store where the attempt to redeem the lottery ticket occurred established probable cause for the search regardless of the outcome of the knock and talk. The court also noted that defendant was under supervised probation and subject to warrantless searches, meaning the items inside would have been discovered and admissible under the inevitable discovery doctrine.

Judge Wood dissented, and would have found error in denying defendant’s motion to suppress.

Overwhelming evidence against defendant meant no prejudice from excluding testimony regarding truthfulness.

State v. Ramirez, COA23-965, ___ N.C. App. ___ (May 7, 2024). In this Mecklenburg County case, defendant appealed his convictions for second-degree sexual offense and rape, arguing (1) error in excluding testimony from a detective regarding defendant’s truthfulness and (2) clerical errors in the judgment. The Court of Appeals found no error with (1), but remanded for correction of the clerical errors.

In December of 2019, the victim went out for drinks with her friends and became intoxicated. She woke up the next morning in her apartment with a head wound and various other injuries; at the hospital the nurse determined she had been sexually assaulted. Detectives determined defendant used the victim’s credit card at several locations, tracked him down and found items from the victim in his car. DNA evidence obtained from the victim at the hospital matched defendant.

Taking up (1), the Court of Appeals assumed arguendo that it was inappropriate to exclude the testimony, and explained that the overwhelming evidence against defendant meant that he could not demonstrate prejudice from the excluded testimony. Moving to (2), the court explained that the written judgments contain the term “forcible” even though this was omitted from the indictments and jury instructions during trial. The court remanded for correction of this error in the judgments.

Trial court erred by entering civil judgment for attorney’s fees against defendant without allowing defendant to be heard on the issue.

State v. Simpson, COA23-676, ___ N.C. App. ___ (May 7, 2024). In this Rowan County case, defendant appealed a civil judgment for attorney’s fees imposed on him after a trial and conviction for assault on a detention employee inflicting physical injury. The Court of Appeals found error and vacated the civil judgment, remanding for proceedings to allow defendant to be heard on the issue of attorney’s fees.

After the trial against defendant for the assault against a detention employee, appointed defense counsel raised the issue of fees with the court, noting his fee and requesting the court take notice that defendant had been on good behavior. The court did not inquire as to whether defendant wanted to be heard regarding the issue of attorney’s fees.

Taking up defendant’s appeal, the Court of Appeals explained that the trial court should have ensured that defendant was given an opportunity to be heard on the issue of attorney’s fees, and pointed to State v. Friend, 257 N.C. App. 516 (2018), as controlling. Because nothing in the record indicated defendant was given notice of the attorney’s fees issue until the civil judgment was imposed, the court vacated the judgment and remanded.

Judge Griffin dissented by separate opinion, and would have left the civil judgment in place.

Under State v. McLymore, defendant was not disqualified from instruction on stand-your-ground by felony of possessing sawed-off shotgun during murder.

State v. Vaughn, COA23-337, ___ N.C. App. ___ (May 7, 2024). In this Lincoln County case, defendant appealed his convictions for first-degree murder and possessing a weapon of mass death and destruction, arguing error in denying his requested jury instructions on stand-your-ground and defense of habitation for murder and justification for the possession of a weapon of mass death charge. The Court of Appeals found error in denying the stand-your-ground instruction, but no error in denying the other two. The court vacated the first-degree murder charge and remanded for a new trial and resentencing.

In August of 2017, defendant became involved in a dispute with the owner of his residence and her son. After an extended argument, defendant retrieved a sawed-off shotgun from the residence. At that point, after further arguing, the landlord’s son charged defendant and defendant shot him in the chest, killing him.

Considering defendant’s arguments, the Court of Appeals explained that the recent decision in State v. McLymore, 380 N.C. 185 (2022), altered the analysis of whether defendant could claim stand-your-ground as a defense under G.S. 14-51.3. Previously, under State v. Crump, 259 N.C. App. 144 (2018), a defendant was disqualified from using force in self defense if they were committing a felony, and the State did not have to prove a connection between the felony and the use of force in self-defense. The Supreme Court held in McLymore that “the State must prove the existence of an immediate causal nexus between the defendant’s disqualifying conduct and the confrontation during which the defendant used force.” Slip Op at 9, quoting McLymore at 197-98.

In this case, Crump controlled when the trial was held, as McLymore had not been released. After considering the evidence at trial, the court concluded:

[T]here is a reasonable possibility that, had the trial court instructed the jury on the stand-your-ground provision and causal nexus requirement, the jury would have determined that Defendant’s use of deadly force was justified because he reasonably believed that such force was necessary to prevent imminent death to himself and that there was no causal nexus between Defendant’s felonious possession of a weapon of mass death and destruction and his use of force.

Slip Op. at 13. Although the same logic regarding disqualification applied to the requested instruction on defense of habitation, the court found that failing to give this instruction was not error, as the victim was not “in the process of unlawfully and forcefully entering or had unlawfully and forcibly entered [defendant’s] home, including the curtilage of the home.” Id. at 15. Instead, the victim and defendant had spent time together sitting in the living room just a few hours before the shooting and went for a ride together in a car just before the shooting, ending with the parties coming back to park in front of defendant’s trailer. The victim’s mother was the landlord, who was also present at the scene.

The court also dispensed with the defense of justification instruction, noting that defendant did not provide evidence in the record to support the elements of that claim.

Judge Zachary concurred by separate opinion to comment on the use of defense of habitation.