This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on November 7, 2023. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Defendant’s actions before and after the murder supported premeditation and deliberation; admission of numerous gruesome photographs of the body did not represent prejudice; allowing prosecutor’s comments during closing argument did not rise to prejudicial error.
State v. Branche, CO22-768, ___ N.C. App. ___ (Nov. 7, 2023). In this Carteret County case, defendant appealed his conviction for first-degree murder, arguing (1) insufficient evidence, (2) error in admitting numerous gruesome photos of the body, and (3) error in allowing several statements by the prosecutor during closing argument. The Court of Appeals found no prejudicial error.
At trial, defendant admitted through counsel that he shot the victim, the mother of his son, on August 14, 2018. Evidence showed that earlier that day, the two were seen fighting in the front yard of their residence, and later the victim was seen walking down the road. Defendant eventually picked up the victim and brought her back to their home. Sometime after the victim and defendant were back home, defendant shot and killed the victim, wrapped her in a tarp, then buried her body at a burn pit in his grandfather’s back yard. Defendant also called the victim’s mother, who lived with them, to tell her juice had been spilled on her sheets and he had to launder them. After burying the victim, defendant told others that the victim had left him, and put up flyers trying to find her. Eventually defendant was charged with the murder; while in custody, he had conversations with another inmate about how he “snapped” and shot the victim after she described performing sex acts with other men, and where he hid the body.
Taking up (1), the Court of Appeals explained that the State argued first-degree murder under two theories, premeditation and deliberation, and lying in wait. The court looked for sufficient evidence to support premeditation and deliberation first, noting that defendant’s actions before and after the murder were relevant. Although defendant and the victim fought before the killing, the court did not find evidence to support the idea that defendant was acting under “violent passion,” and defendant seemed to deliberately choose a small-caliber handgun that was not his usual weapon for the murder. Slip Op. at 10-11. Additionally, the court concluded that “Defendant’s actions following the murder demonstrate a planned strategy to pretend Defendant had nothing to do with the murder and to avoid detection as the perpetrator.” Id. at 12. The court dispensed with defendant’s argument that it should not consider acts after the killing as evidence of premeditation, explaining the case cited by defendant, State v. Steele, 190 N.C. 506 (1925), “holds flight, and flight alone, is not evidence of premeditation and deliberation.” Slip Op. at 14. Because the court found sufficient evidence to support first-degree murder under premeditation and deliberation, it did not examine the lying in wait theory.
Turning to (2), the court explained that under Rule of Evidence 403, photos of a body and its location when found are competent evidence, but when repetitive, gruesome and gory photos are presented to the jury simply to arouse the passion of the jury, they may have a prejudicial effect, such as in State v. Hennis, 323 N.C. 279 (1988). Here, the court did not find prejudice from the photographs, as “[t]he photographs presented at trial depicted the culmination of the investigation to locate [the victim’s] body and provided evidence of premeditation and deliberation.” Slip Op. at 20.
The court found error in (3), but not prejudicial error, when examining the prosecutor’s closing argument. First, the prosecutor mentioned the punishment for second-degree murder; the trial court sustained defendant’s objection but did not give a curative instruction. The court found no prejudice as previous instructions directed the jury to disregard questions to sustained objections, and not to acquit or convict based on the severity of punishment. Second, the prosecutor mentioned that defendant did not have to testify; the trial court initially sustained the objection but then overruled it to allow the prosecutor to make an argument about defendant not calling witnesses. The court found that this error was harmless beyond a reasonable doubt due to “the evidence of Defendant’s motive for planning to kill [the victim], his confession, his use of the .22 caliber handgun, and his acts subsequent to the killing.” Id. at 25. Third, while the prosecutor misstated the applicable precedent regarding provocation, the court explained that a proper instruction by the trial court to the jury on “the required state of mind for premeditation and deliberation” cured the misstatement. Id. at 27. Finally, the court concluded that the prosecutor’s statements referencing defendant’s admission that he killed the victim were “directed at what was and was not at issue for the jurors to decide rather than an improper statement regarding Defendant’s failure to plead guilty.” Id. at 28.
Joining the three defendants’ cases for trial was not error; testimony about complaints referencing defendant’s black car was not hearsay; defendants had constructive possession of drugs found in apartments.
State v. Clawson, COA22-787, ___ N.C. App. ___ (Nov. 7, 2023). In this Haywood County case, three defendants appealed their judgments for various drug-related offenses, arguing error in (1) joining their cases for trial, (2) admission of certain testimony, (3) denying their motions to dismiss. The Court of Appeals found no error.
In October of 2018, the Haywood County Sheriff’s Office executed a search warrant on three apartments, finding heroin and cocaine along with drug paraphernalia. The three defendants were found together in one of the apartments, along with drugs and a large amount of cash. The defendants came to trial in August of 2021, and the State moved to join the cases for trial; the trial court allowed this motion over their objections.
For (1), the court noted that G.S. 15A-926 permits joinder in the discretion of the trial court, with the primary consideration being the fair trial for each defendant. Here, no confessions or affirmative defenses were offered by any defendant, and “[b]ecause there were no antagonistic or conflicting defenses that would deprive Defendants of a fair trial,” the court found no error in joining the cases. Slip Op. at 8.
Looking to (2), the court explained that one defendant objected to the testimony by an officer referencing several complaints about a black car driven by the defendant. The court noted that the officer’s testimony was not hearsay under Rule of Evidence 801, as it was not being offered to prove the truth of the matter asserted. Instead, the officer’s testimony explained his subsequent actions in observing the black car, which led to conducting surveillance on the apartments.
Finally, in (3), the court found that two of the defendants had constructive possession of the drugs sufficient to support their convictions for possession despite not having exclusive possession of the apartments, as sufficient evidence of incriminating circumstances linked the defendants to the drugs and paraphernalia. The court noted this constructive possession, along with a rental application for one of the apartments, supported the finding of a conspiracy between the defendants to traffic the drugs. As a result, the trial court did commit error by denying the defendants’ motions to dismiss.
Because defendant received two concurrent sentences, with longer term assigned to serious injury by vehicle, resentencing was not required for inclusion of DWI lesser-included offense.
State v. Harper, COA23-206, ___ N.C. App. ___ (Nov. 7, 2023). In this Pitt County case, defendant appealed his convictions, arguing double jeopardy as DWI is a lesser included offense of felony serious injury by vehicle. The Court of Appeals arrested judgment on the DWI conviction, but found no prejudicial error justifying remand for resentencing.
Defendant was charged with DWI, felony hit and run, and felony serious injury by vehicle, for a collision in August of 2020. After defendant was convicted of the charges and attained habitual felon status, the trial court consolidated the DWI and felony hit and run convictions, imposing a sentence of 89 to 119 months. The trial court also imposed a 101-to-134-month sentence for the felony serious injury by vehicle conviction and ordered the sentences to run concurrently.
The court first established that “[a]s the State correctly noted at trial, DWI is a lesser included offense of felony serious injury by vehicle.” Slip Op. at 7. However, because the sentences were consolidated in separate judgments and ordered to run concurrently, defendant was not forced to serve additional time for the DWI conviction. Normally, the court would arrest judgment and remand for resentencing when it is unable to determine what weight the trial court gave to the arrested conviction. Here, because defendant’s sentences were separated, and he received a longer sentence in the presumptive range for the felony serious injury by vehicle conviction, the arrested judgment would not impact the ultimate length of his sentence.
Defendant was erroneously convicted of altering court documents where she altered a copy of a child support statement; restitution and probation term were properly ordered.
State v. Hussain, COA22-1024, ___ N.C. App. ___ (Nov. 7, 2023). In this Brunswick County case, defendant appealed her convictions for forgery, uttering forged paper, altering court documents, residential mortgage fraud, and obtaining property by false pretense, arguing error in (1) denying her motion to dismiss the charges of altering court documents and obtaining property by false pretense, (2) ordering restitution, and (3) imposing an extended probation term. The Court of Appeals found error in denying the motion to dismiss the charge of altering court documents and remanded for resentencing, but otherwise affirmed the trial court.
Defendant applied for a home loan in 2016, and submitted documentation showing her income from a full time job, a part time job, and from child support payments under a Florida court order. After the bank granted the loan, defendant applied for several forbearances, claiming a hardship due to losing her part-time job. The bank suspected fraud after her third application for forbearance, and an investigation determined there were many inconsistencies in the documentation; the bank eventually foreclosed on defendant’s home. Defendant eventually came to trial for submitting altered and forged documents to the bank, and the jury convicted defendant on all charges. The trial court imposed a 6 to 17 month imprisonment sentence, suspended for 30 months probation, but then extended the probation to 60 months to allow defendant to pay $25,061 in restitution.
Considering (1), the Court of Appeals noted that the State had conceded it did not present evidence to show defendant altered the child support records from Florida. Under G.S. 14-211.2, evidence that the defendant altered official court records is required for a conviction, but at trial the State only admitted evidence the defendant altered a copy of an order showing income. Because the court could not determine “what weight, if any, the trial court gave to each of Defendant’s convictions, and because Defendant was sentenced at the top of the presumptive range of sentences rather than the lowest,” the court vacated the conviction and remanded for resentencing. Slip Op. at 7. The court did not find error with the obtaining property by false pretense charge, as the bank funded defendant’s loan based upon the false information she submitted.
Turning to (2) the order of restitution, the court disagreed with defendant’s argument that the record did not contain evidence showing the banks’ monetary loss, as the record showed the bank relied on defendant’s statements to fund the loan and grant the forbearances. Additionally, the court noted that the trial court was aware of defendant’s marital and employment status, and gave her an extended term of probation to allow her more time to pay, indicating that it properly considered defendant’s ability to pay restitution.
Finally, reviewing (3) the court explained that G.S. 15A-1343.2(d) permits a trial court to extend the term of probation when necessary for payment of restitution. Because the court found that the order of restitution was appropriate in (2), defendant’s argument that the probation term was improperly extended due to an erroneous restitution award also failed.
Defendant constructively possessed hidden methamphetamine in vehicle for knowing possession, trafficking, maintaining a vehicle for controlled substances.
State v. King, COA23-322, ___ N.C. App. ___ (Nov. 7, 2023). In this Haywood County case, defendant appealed his convictions for trafficking and conspiracy to traffic methamphetamine and maintaining a vehicle for controlled substances, arguing he did not knowingly possess or traffic methamphetamine. The Court of Appeals disagreed, finding no error.
Based on a tip from a known drug dealer, detectives from the Haywood County Sheriff’s Office monitored a hotel room in April of 2021. They observed two individuals leaving, and after a traffic stop with a K-9 unit, found methamphetamine. The officers continued monitoring the hotel room, and observed defendant and another person leave. After stopping defendant, they located marijuana and a large amount of currency in his vehicle, but no further meth. While defendant was in jail, he called an associate and gave her instructions on where to remove a portion of his vehicle to find hidden methamphetamine; law enforcement monitored the calls and intercepted the associate after she had removed the meth from the hiding places. This associate cooperated with the detectives and provided what she obtained from the vehicle, which was a large amount of meth. A search of the car taillight turned up additional meth. Defendant was subsequently convicted on all charges.
The Court of Appeals took up each of defendant’s convictions in turn, beginning with the trafficking by possession charge. Defendant argued that he did not “knowingly possess” the methamphetamine. At trial, the State offered evidence that defendant constructively possessed the meth to show knowing possession. The court explained that to establish constructive possession, the evidence must show defendant’s non-exclusive possession of property where drugs are found, along with “other incriminating evidence ‘connecting the defendant to the drugs.’” Slip Op. at 9, quoting State v. Lakey, 183 N.C. App. 652, 656 (2007). Previous cases established that a “large amount of currency” and conduct showing “knowledge of the presence of a controlled substance” support a finding of constructive possession. Id. Here, evidence showed defendant regularly operated the car where the meth was found, he was driving it when he was arrested and it was impounded, and in the trunk officers found a large amount of currency and digital scales. This evidence combined with the instructions provided in the jailhouse phone call supported the conclusion that defendant had constructive possession of the meth.
The court then turned to the trafficking by transportation charge, and rejected defendant’s argument that he did not knowingly transport the meth. The court noted transportation “requires a ‘substantial movement’ of contraband. . .[e]ven very slight movement may be real or substantial enough.” Id. at 10, quoting State v. McRae, 110 N.C. App. 643, 646 (1993). Here, detectives observed defendant drive the car with the meth from the hotel to a parking lot where he was arrested and the car was impounded. Although the meth was not immediately discovered, “[t]he fact that all the containers were not discovered until days later does not suggest a lack of knowledge given the hidden location of the packages and the Defendant’s knowledge of the location of and extraction method for the packages.” Id. at 11.
Moving to defendant’s argument that the State presented insufficient evidence he kept or maintained a vehicle for controlled substances, the court explained that “[w]hether sufficient evidence was presented of the ‘keeping or maintaining’ element [of G.S. 90-108(a)(7)] depends upon a totality of the circumstances, and no single factor is determinative.” Id. at 12. Here, the court pointed to the evidence initially found inside the car along with defendant’s “knowledge and actions to access and dispose of the methamphetamine” later found inside the car as sufficient to support the conviction. Id. at 13.
Finally, the court noted the evidence showing all the alleged co-conspirators found with meth after leaving the hotel, along with the currency and scales found with defendant, as supportive of the conspiracy to commit trafficking charge.
Pleading to lesser-included offense did not represent dismissal for purposes of expungement under G.S. 15A-146.
State v. Lebedev, COA23-249, ___ N.C. App. ___ (Nov. 7, 2023). In this Orange County case, defendant appealed (1) three orders by the Orange County District Court denying his petition to expunge traffic misdemeanors, and (2) the order of the Orange County Superior Court denying his petition for writ of certiorari. The Court of Appeals affirmed the orders of the district court and superior court.
Between April of 2009 and August of 2011, defendant was charged with speeding three separate times in three unrelated incidents, and each time he pleaded to a lesser-included offense. In November of 2022, defendant filed three separate expungement petitions with the district court, seeking expunction as to each of the traffic charges. The district court denied the petitions because defendant was not charged with “multiple offenses” as required by G.S. 15A-146. Defendant then petitioned for a writ of certiorari from the superior court, which was also denied.
The Court of Appeals noted that defendant’s argument hinged on the statutory interpretation of G.S. 15A-146, citing the relevant language from subsection (a1): “[i]f a person is charged with multiple offenses and any charges are dismissed, then that person or the district attorney may petition to have each of the dismissed charges expunged.” Slip Op. at 4. The court explained that while the statute did not define what constituted a “dismissal,” it was a common word with an unambiguous meaning. Although the court determined no charges were dismissed in this matter, defendant argued that “the legislature nonetheless intended defendants to be able to petition to expunge misdemeanor charges that did not ultimately result in a conviction.” Id. at 5. The court found this interpretation to be “imaginative” but ultimately flawed, as “it incorrectly conflates the concept of pleading down to a lesser included offense with that of an actual dismissal.” Id. at 6. Having established that amending the charge to reflect a lesser-included offense did not represent dismissal under G.S. 15A-146, the court affirmed the denial of defendant’s various petitions as without merit.
Witness’s testimony regarding the shooting was not inherently incredible; trial court’s ruling on Batson challenge was inadequate under Hobbs requirements.
State v. Wilson, COA21-34, ___ N.C. App. ___ (Nov. 7, 2023). In this Cleveland County case, defendant appealed his convictions for first-degree murder, attempted first-degree murder, and attempted robbery, arguing (1) error in denying his motion to dismiss for insufficient evidence based upon the impossibility of a witness’s testimony, and (2) inadequate Batson findings. The Court of Appeals majority found no error in (1), but remanded to the trial court in (2) for further findings under the guidance of State v. Hobbs, 374 N.C. 345 (2020).
In October of 2016, several people were gathered at a home drinking alcohol and taking drugs. Early in the morning, a hooded gunman entered the house, exchanging gunfire with one of the victims and killing two victims while leaving a third paralyzed. One of the witnesses present at the scene identified defendant as the gunman, and defendant came to trial for the charges in March of 2020. After defendant was convicted, he appealed, and the Court of Appeals held this case in abeyance pending the resolution of State v. Campbell, 384 N.C. 126 (2023).
In (1), defendant argued that the testimony of the witness identifying him as the gunman was physically impossible. The Court of Appeals first noted that to be “inherently incredible,” the testimony of the witness must be irreconcilable with “basic physical facts or laws of nature.” Slip Op. at 7. The court explained that “evidence is only inherently incredible where the alleged impossibility fundamentally undermines the reliability of the evidence as opposed to creating conflicts at the margins.” Id. at 10. Here, defendant pointed to three different issues with the witness’s testimony, but only one of those, the vantage point of the witness who saw the gunman shoot a victim in the living room, could have qualified as evidentiary impossibility. Defendant’s interpretation required the gunman to maintain a fixed location in the living room after speaking to the witness and subsequently shooting one of the victims. However, the witness’s testimony did not contain a statement that defendant stayed stationary, and nothing else ruled out the idea that the gunman stepped towards the victim before shooting her. Because nothing in the record fundamentally undermined the witness’s testimony, and a plausible explanation existed for the inconsistencies identified by defendant, the court did not find error in denying defendant’s motion.
Defendant’s Batson challenge in (2) was based upon the State using two peremptory challenges on black female prospective jurors. Under Hobbs, a trial court must conduct the three-step Batson analysis by first deciding whether the defendant has made a prima facie showing of racial discrimination, then proceeding to hear the State’s race-neutral reasons for striking the jurors, and finally ruling on the merits of the Batson challenge after weighing the circumstances around the stricken jurors. Here, the trial court immediately requested the State’s input after hearing defendant’s objection and issued a ruling deciding the entire Batson challenge, “issuing no preliminary ruling on whether Defendant had made a prima facie case [of racial discrimination],” and rendering the first Batson step moot. Id. at 21-22. The trial court ruled after hearing the State’s race-neutral reasons for striking the jurors, “ma[king] the ruling, in substance, a ruling on the third step of Batson.” Id. at 22. This ruling lacked the analysis required, as “’[T]he trial court did not explain how it weighed the totality of the circumstances surrounding the prosecution’s use of peremptory challenges,’ nor did it conduct a comparative analysis between the stricken African-American jurors and the other jurors alleged to have been similarly situated.” Id. at 24-25, quoting Hobbs at 358. Because defendant did not seek review of the trial court’s substantive ruling, the court did not attempt to perform a comparative-juror analysis, instead reversing and remanding the case for “further proceedings consistent with those set out in Hobbs.” Id. at 25.
Judge Dillon concurred by separate opinion, noting that the State may be heard during the first step of the Batson analysis and that the trial court could still make a ruling on the prima facie showing of discrimination, but that the court here proceeded to step two.
Judge Stading concurred to the holding in (1) and dissented to the holding in (2) by separate opinion, and would have held that the trial court committed no error as the step one Batson determination was not moot under the circumstances of the case.