This post summarizes published criminal decisions from the North Carolina Court of Appeals published on November 2, 2021. As always, these summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present.
(1) The trial court did not err by concluding that evidence of prior alleged forcible sexual assaults was relevant to a present rape allegedly committed against a physically helpless victim. (2) The trial court did not abuse its discretion in concluding that testimony about the prior alleged offense was more probative than prejudicial.
State v. Rodriguez, ___ N.C. App. ___, 2021-NCCOA-594 (Nov. 2, 2021). In this Wake County case, the defendant was charged with incest and second-degree forcible rape for an offense committed against his niece. The defendant pled guilty to incest, but had a jury trial on the rape charge. At trial, the State offered testimony from a witness, Brittany Mack, who alleged that she had previously been forcibly raped by the defendant numerous times, including five days prior to the acts giving rise to the defendant’s current charge. The defendant filed a motion in limine seeking to exclude that testimony under Rule 404(b). The trial court heard arguments on that motion but reserved ruling on it until after the victim in the present case testified at trial. After the present victim testified that the defendant had intercourse with her while she was blacked out after drinking alcohol, the trial court ruled that the 404(b) evidence of the defendant’s sexual assault on Brittany Mack would be admissible for the limited purposes of showing the absence of mistake, lack of consent and intent. The trial court also conducted a Rule 403 balancing test and concluded that the proffered evidence was sufficiently similar and close in time to be more probative than prejudicial. After Mack testified, the trial court instructed the jury that her testimony could be considered solely for the purpose of showing an absence of mistake or that the defendant had the intent to commit the crime charged in this case. The defendant was convicted. On appeal, he argued that the trial court erred in allowing testimony regarding the prior alleged rapes because they were not relevant to any material element of the present charge of second-degree forcible rape, and that the trial court abused its discretion in weighing the testimony’s prejudicial effect.
(1) The Court of Appeals concluded that the trial court did not err when it deemed Mack’s testimony relevant under Rule 401. Though the type of force allegedly applied in the prior incident (Mack testified that the defendant “threw her on his bed” and forced her to have sex against her will) was different from the evidence of physical helplessness at issue in the present case, the Court of Appeals noted that physical helplessness still implies force and a lack of consent. Because force and consent are relevant issues in any second-degree forcible rape case, the Court held that the testimony about the prior alleged offense was relevant to prove that the defendant did not mistake the present victim’s actions and inactions as consent.
(2) The Court also concluded that the trial court did not abuse its discretion when weighing the probative value of Mack’s testimony against the danger of unfair prejudice. The trial judge heard testimony on voir dire, instructed the jury on the limited purpose of the testimony, and acknowledged that the prior alleged acts most recently occurred five days prior to the present offense. The Court of Appeals thus found no error and affirmed the defendant’s conviction.
The defendant did not have standing to challenge the placement of a GPS tracking device on a vehicle he did not own or possess.
State v. Lane, ___ N.C. App. ___, 2021-NCCOA-593 (Nov. 2, 2021). In this Wake County case, evidence of the defendant’s crimes was obtained using a GPS tracking device installed, pursuant to a court order, on a car owned by Sherry Harris and driven by Ronald Lee Evans. Evans was the target of the investigation. When officers intercepted the vehicle as it returned from a trip to New York, the defendant was driving and Evans was a passenger. After an initial mistrial, the defendant ultimately pled guilty to attempted trafficking heroin by possession and trafficking heroin by transportation, but preserved his right to appeal the trial court’s denial of his motion to suppress evidence obtained as a result of the GPS device.
The Court of Appeals concluded that the defendant did not have standing to challenge use of the GPS device. Under the common law trespass theory of a search, a search happens when government agents intrude into a constitutionally protected area to obtain information. Here, the defendant offered no evidence that he possessed the car to which the GPS device was attached such that any trespass by the government violated his rights as opposed to the rights of the owner (Harris) or usual driver (Evans). Likewise under a reasonable expectation of privacy theory, the defendant could not show that he had a reasonable expectation of privacy in his movements in someone else’s car on a public thoroughfare. To the contrary, the Court said, “[f]or the Defendant, the [car] was a vehicle for a trip to conduct a heroin transaction. Defendant did not have a reasonable expectation of privacy to confer standing to challenge the court order issue on probable cause.” Slip op. ¶ 30.
The trial court erred in denying the defendant’s motion to suppress when the search warrant affidavit did not provide a sufficient basis for a finding of probable cause.
State v. Eddings, ___ N.C. App. ___, 2021-NCCOA-590 (Nov. 2, 2021). In this Buncombe County case, the defendant was convicted by a jury of possession with intent to sell or deliver fentanyl, possession of fentanyl, possession of firearm by a felon, and maintaining a building for keeping or selling controlled substances. Officers conducted a search of the defendant’s home when they believed it to be the place where another man, Robert Jones, obtained drugs that were sold to a confidential informant. That suspicion was based on officers’ multiple observations of Jones visiting the defendant’s address for short periods before engaging in controlled purchases, including an incident in which officers conducted a traffic stop on Jones immediately after he visited the defendant’s address, which prompted Jones to ingest narcotics while officers were pursuing him. The defendant moved to suppress the evidence obtained pursuant to the search, arguing that the warrant affidavit lacked sufficient probable cause. The trial court denied the motion.
Over a dissent, the Court of Appeals reversed the trial court. The majority concluded that the affidavit lacked sufficient facts to establish probable cause in that it did not describe how much time passed between Jones leaving the defendant’s house and being pulled over, how Jones obtained drugs, or why law enforcement believed the defendant’s address was the source of supply. The Court thus concluded that the trial court erred in denying the defendant’s motion to suppress, and that the defendant was entitled to a new trial.
A dissenting judge would have concluded that the affidavit provided a sufficient basis for probable cause to search the defendant’s residence. The judge noted that the affidavit’s references to drug purchases by Jones in “recent days” was a specific enough reference to the passage of time, and the trial court’s reference to officers’ stop of Jones after leaving the defendant’s residence as “immediate” was accurate under a commonsense reading of the warrant.
Charging a 16-year-old defendant as an adult under the law that existed at the time of his offenses did not violate his constitutional rights to equal protection, due process, or to be free from cruel and unusual punishment, and the trial court thus erred by granting his motion to dismiss.
State v. Garrett, ___ N.C. App. ___, 2021-NCCOA-591 (Nov. 2, 2021). In this Mecklenburg County case, the defendant was charged with two class H felonies (felonious breaking or entering and larceny after breaking or entering) in October of 2016, when he was 16 years of age and before “raise the age” was implemented through the Juvenile Justice Reinvestment Act. The charges were under the exclusive jurisdiction of the criminal law under the law in place at the time of the offense. Raise the age was passed in 2017 and applied prospectively, beginning with offenses committed on December 1, 2019. This case was set for trial in late 2017 and the defendant failed to appear. The defendant was arrested in 2019 and his case proceeded. The trial court granted a pretrial motion to dismiss, finding that the defendant’s constitutional rights to equal protection, protection from cruel and unusual punishment, and due process were violated by prosecution as an adult. The trial court went on to conclude that the loss of the benefit of Juvenile Court irreparably prejudiced the preparation of his case such that dismissal was the only remedy. The State appealed.
The Court of Appeals concluded that the defendant’s constitutional rights were not violated by trying him as an adult. As to the defendant’s equal protection argument, the Court concluded that under State v. Howren, 312 N.C. 454 (1984), there is no equal protection violation when the same group of people (here, 16-year-olds alleged to have committed a Class H felony) are treated differently at different times (here, before and after the effective date of the Juvenile Justice Reinvestment Act).
As to the defendant’s Eighth Amendment argument, the Court of Appeals concluded that trying a young defendant as an adult does not implicate the substantive limits on what can be made criminal without violating the constitutional prohibition on cruel and unusual punishment. Those limits have been invoked only in relation to the status of addiction to drugs or alcohol. Robinson v. California, 370 U.S. 660 (1962). In addition, the prosecution of juveniles as adults involves the procedure taken regarding a criminal offense alleged against a juvenile, not the substance of what is made criminal. Trying the defendant as an adult does not, the Court reasoned, criminalize a status like addiction. Rather, it punishes criminal behavior—here, breaking or entering and larceny, “offenses that are undoubtedly within the police powers of North Carolina.” ¶ 21. The Court thus rejected the defendant’s Eighth Amendment claim.
As to the defendant’s due process argument, the Court concluded that there is no fundamental right to be tried as a juvenile in criminal cases, and therefore no particular process due in relation to being tried in that way. The Court distinguished Kent v. United States, 383 U.S. 541 (1966), noting that the District of Columbia statutory structure at issue in Kent, which did mandate certain procedures before a case was transferred from juvenile to adult court, was distinct from North Carolina’s, in which a defendant’s case began in superior court by default. Turning to substantive due process, because no fundamental right was at issue, the Court applied rational basis review and concluded that the State had a legitimate interest in prosecuting and sentencing juveniles under the statutory scheme in place at the time they commit their offense.
In the absence of any constitutional violation, the Court of Appeals concluded that the trial court erred in granting the defendant’s motion to dismiss under G.S. 15A-954(a)(4). The Court thus reversed the trial court and remanded the case.
(1) The trial court did not err by allowing a witness to presently refresh his recollection by reference to an earlier writing. (2) A prior writing was properly admitted as a prior consistent statement. (3) The trial court did not plainly err in instructing the jury on attempted first-degree murder when the defendant could not demonstrate prejudice resulting from any alleged error. (4) Referencing attempted first-degree murder as a Class B1 felony was a clerical error.
State v. Jones, ___ N.C. App. ___, 2021-NCCOA-592 (Nov. 2, 2021). In this Wake County case, the defendant was charged with two counts each of attempted first-degree murder and several related assault and conspiracy charges stemming from an altercation between two groups of people. At trial, a man named Ronald Cameron, who had shared a cell block with the defendant during his pretrial confinement, and who wrote a letter to the district attorney detailing conversations he had with the defendant about his charges, testified for the State. After Cameron initially gave limited testimony and said he did not remember anything else, the trial court allowed the State to use his letter to refresh his recollection. Cameron then gave additional testimony, eventually without reference to the letter, including some details of his conversations with the defendant that were not included in the letter. The trial court found that the letter was properly used to refresh the witness’s recollection, and also admitted the letter itself as a prior consistent statement that could be used to corroborate his testimony. When instructing the jury, the trial judge explained to the parties that he intended to give the instructions, including the defendant’s requested alibi instruction, only once even though there were two counts of each charge (one for each victim)—a plan to which the defendant did not object. The jury found the defendant guilty of all charges. One page of the attempted first-degree murder judgment listed the crime as a Class B1 felony.
(1) On appeal, the defendant argued that the trial court erred by allowing Cameron to reference his letter to the district attorney during his testimony, claiming that the letter was used as a “testimonial crutch” rather than merely as a means to presently refresh his recollection. The Court of Appeals disagreed, concluding that this was not a case where Cameron’s testimony was “clearly a mere recitation of the refreshing memorandum.” Slip op. ¶ 21 (citing State v. Black, 197 N.C. App. 731 (2009)). To the contrary, Cameron testified to part of his jail conversation with the defendant before looking at the letter to refresh his recollection and included some details in his testimony that were not contained in the letter at all, such as the specific location where the gun used to commit the crimes could be found. Because it was not clear that Cameron was merely reciting the letter at trial or using it as a testimonial crutch, the Court of Appeals concluded that the trial court did not abuse its discretion by allowing the refreshed testimony.
(2) The defendant also argued that the trial court erred by admitting the letter into evidence as a prior consistent statement. The Court of Appeals disagreed, concluding that the letter qualified as a prior consistent statement in that it corroborated Cameron’s testimony both as to how he came to have the information about the defendant’s crime as well as the information about the crime itself. The Court noted that one inconsistency between the letter and Cameron’s trial testimony did not undermine its status as a prior consistent statement because it did not directly contradict that testimony.
(3) The defendant argued that the trial court plainly erred when instructing on attempted first-degree murder when it fashioned its own instruction combining the pattern instructions on general attempt (N.C.P.I. – Criminal 201.10) and first-degree murder (206.10) rather than using the specific pattern instruction for attempted first-degree murder (206.17A). The Court acknowledge minor differences between 206.17A and the trial court’s combined instruction—most notably in the definition of malice based on intentional infliction of a “wound” instead of “serious bodily harm.” However, the Court of Appeals ultimately concluded that the difference did not amount to plain error because the defendant was unable to show prejudice resulting from it. Regardless of the instruction used in the attempted murder charge, the jury found the element of intent to kill when it found the defendant guilty of ADWIKISI based on the same action (shooting at the victims). Moreover, the crux of the defendant’s defense was an alibi—the defendant did not argue that he lacked malice, but rather that he was not involved at all. As a result, any alleged error in the instruction would not have had a probable impact on the jury’s finding of guilt, and was thus not plain error.
(4) Finally, the Court of Appeals agreed that the attempted first-degree murder judgment included a clerical error when it referenced the crime in one place as a class B1 felony. It is a class B2 felony under G.S. 14-2.5, and the Court remanded the matter to the trial court for correction of that error.
Though none of the circumstances alone would satisfy constitutional requirements, when considered in their totality, they provided officers with reasonable articulable suspicion to stop the defendant.
State v. Royster, ___ N.C. App. ___, 2021-NCCOA-595 (Nov. 2, 2021). In this Forsyth County case, the defendant was charged with possession of a firearm by a felon, several drug crimes including trafficking opium or heroin by possession, possession of a weapon on school property, and attaining the status of habitual felon after an investigatory stop on school grounds stemming from an anonymous tip. The police received a detailed anonymous report saying that a black male named Joseph Royster who went by the nickname “Gooney” had heroin and a gun in the armrest of his black Chevrolet Impala with a specific license plate number, that he was wearing a white t-shirt and blue jeans, had gold teeth and a gold necklace, and that he was parked near South Fork Elementary School. An experienced officer who received the tip searched a police database that showed a person by that name as a black male with gold teeth and a history of drug and weapon charges. Officers went to the named elementary school, saw a vehicle with the specified license plate number matching the description in the tip in the parking lot, and eventually saw a person matching the description in the tip return to the vehicle. When that person quickly exited the vehicle, reached back into it and turned it off, began to walk away from officers and reached for his waistband, officers frisked him for weapons and detained him for a narcotics investigation. The defendant moved to suppress, arguing that officers did not have reasonable articulable suspicion for the stop. The trial court denied the motion and the defendant pled guilty.
On appeal of the denial of the motion to suppress, the defendant argued that the anonymous call did not demonstrate sufficient reliability. The Court of Appeals noted that the anonymous call itself merely provided identifying information, and there was nothing inherent in the tip itself that would give officers reasonable suspicion to make the stop. The Court rejected the State’s argument, based on Navarette v. California, 572 U.S. 393 (2014), that the caller’s use of a phone to make the tip sufficiently bolstered its reliability, because there was no evidence as to whether the caller used 911 or a non-emergency number or otherwise preserved her anonymity. The Court was likewise unpersuaded that the caller’s use of the defendant’s nickname showed a level of familiarity with the defendant that made the call sufficiently reliable in its assertion of illegality. Thus, the anonymous call itself was insufficient to provide officers with reasonable articulable suspicion.
Looking at the totality of the circumstances, however, the Court concluded that officers did have reasonable articulable suspicion. The defendant’s actions in exiting the vehicle, reaching back into it, walking away from officers, and reaching for his waistband demonstrated evasive behavior that went beyond merely walking away from officers and supported a finding of reasonable suspicion for the stop. Additionally, the caller’s allegation that the defendant was in possession of a firearm, coupled with his presence on school grounds and his prior criminal record obtained through the police database gave officers reasonable suspicion that he was in possession of a firearm, and that he was thus violating the criminal statute prohibiting the possession of a firearm on school property. As a result, the stop was deemed proper, and the Court concluded that the trial court did not err in denying the defendant’s motion to suppress.