This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on October 15, 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 was not invalid due to photographs of wrong property because it referenced correct address to be searched; edits made to warrant after issuance to remove references to photographs did not render it invalid.
State v. Ellison, COA24-30, ___ N.C. App. ___ (Oct. 15, 2024). In this Watauga County case, defendant appealed after pleading guilty to larceny and breaking and entering, arguing error in denying his motion to suppress the results of a search of his property. The Court of Appeals found no error.
In December of 2022, a caller reported two chainsaws were stolen from his property and provided law enforcement with trail camera footage of two men taking the chainsaws away in a wagon. Officers identified defendant as one of the men and prepared a search warrant for his property at 303 Tanner Road, including a photograph from the front of the property, an aerial photograph, and a description of a single wide mobile home with white siding. When executing the warrant, law enforcement officers realized they had provided photographs of the wrong property, which were of 310 Tanner Road. The officers went to the magistrate, who marked out the warrant’s reference to the attached photographs and initialed changes on the search warrant. The officers then searched the property, finding the chainsaws. Defendant subsequently confessed to stealing the chainsaws during an interview.
Defendant first argued that the search warrant failed to identify the property with reasonable certainty. The Court of Appeals disagreed, explaining that while G.S. 15A-246 requires a search warrant to “contain a designation sufficient to establish with reasonable certainty the premises,” a search warrant is not invalid simply because the address given differs from the address searched. Slip Op. at 9. The court explained the confusion of the two properties was understandable as they were both in the same area and had similar white mobile homes, concluding that the search warrant provided reasonable certainty because it referenced the correct street address to be searched.
Defendant next challenged the probable cause to search his home. The court explained that defendant’s address was taken from his driver’s license which was given during a recent traffic stop, and the address was within two miles of the location of the crime. Defendant was caught on the trail camera wearing the same hat he was wearing during the traffic stop, and he was transporting the chainsaws in a child’s wagon, indicating he did not travel far. These facts supported probable cause to search the residence. The court denied defendant’s challenge to the descriptions of the stolen property, noting they were adequate to identify the property based on the information provided by the victim.
The court also rejected defendant’s argument that the search warrant was improperly amended. The court acknowledged that G.S. Chapter 15A did not address amending warrants, then looked to Franks v. Delaware, 438 U.S. 154 (1978), and State v. Jackson, 220 N.C. App. 1 (2012), concluding “intentional falsehoods made by law enforcement” may render a warrant invalid, but no intentional falsehood was present here and the warrant still contained the correct address to be searched, regardless of the incorrect photographs. Slip Op. at 21.
Finally, the court dispensed with defendant’s argument that the warrant was not signed at the time of issuance, noting that G.S. 15A-246 required the date and time of issuance above the issuing official’s signature. The court considered this section in conjunction with G.S. 15A-248, concluding “the purpose of section 15A-246(1) is to provide a record of the time of issuance against which the forty-eight-hour time limit for execution contained in section 15A-248 may be measured against.” Id. at 23. The court likewise rejected defendant’s argument that the amendments to the search warrant contained information not taken under oath. Here the additional information was “simply that the photographs depicted the wrong address, a fact not bearing on whether probable cause existed to issue the warrant in the first place.” Id. at 24.
Officer’s testimony about whether the accident was intentional was improperly admitted where he did not observe the accident and was not an expert in accident reconstruction.
State v. Hunt, COA23-890, ___ N.C. App. ___ (Oct. 15, 2024). In this Robeson County case, defendant appealed his convictions for assault with a deadly weapon inflicting serious injury without intent to kill and injury to personal property, arguing the admission of expert testimony by a lay witness represented plain error. The Court of Appeals majority agreed, vacating and remanding for a new trial.
Defendant and the alleged victim, his neighbor, had a contentious relationship due to the victim riding his 4-wheeler on defendant’s property without permission and throwing beer cans in defendant’s yard. In January of 2019, defendant was driving home and struck the victim on his 4-wheeler; testimony differed on whether the victim was riding his 4-wheeler on his own property and whether defendant intentionally hit the victim. At trial, the law enforcement officer who responded to the accident testified about the scene, and then was asked by the State if he had formed an opinion about whether the act of hitting the victim was intentional. The officer testified that it was his opinion that the act was intentional. Defendant was subsequently convicted and appealed.
The Court of Appeals explained that defense counsel failed to object to the officer’s opinion testimony at trial, meaning the review was for plain error. The court then noted that an officer who does not witness an accident is “permitted to testify about physical facts observed at the scene, including the condition of the vehicles after the accident and their positioning,” but is not qualified to offer conclusions from those facts. Slip Op. at 4. In this case, the State did not present the officer as an expert witness in accident reconstruction, and it was error to allow him to testify about his opinion on the intentional nature of the accident. The court then found that allowing the officer to testify about the central dispute in the case “had a probable impact on the jury” and represented plain error, justifying a new trial. Id. at 7.
Judge Stading dissented, and would not have found plain error, exploring the other arguments made by defendant and recommending a remand to remedy habitual felon and restitution issues.
Trial court’s statements during sentencing were accurate reflections of the law and did not indicate punishment for defendant’s choice to seek a jury trial.
State v. Mills, COA23-1097, ___ N.C. App. ___ (Oct. 15, 2024). In this Rowan County case, defendant appealed after being convicted of robbery with a dangerous weapon and possession of a firearm by a felon, arguing the trial court improperly considered his choice to have a jury trial in sentencing. The Court of Appeals found no error.
Defendant’s matter came to trial in August of 2021; on the day the matter was called, defendant failed to appear, and the trial court set defendant’s bond at $1 million, noting that defendant had reached his “reckoning day.” Slip Op. at 2. After the jury returned verdicts of guilty, the trial court addressed defendant during sentencing regarding his right to a jury trial: “the law also allows me in my sentencing discretion to consider a lesser sentence for people who step forward and take responsibility for their actions. By exercising your right to a jury trial[,] you never ever did that.” Id. at 3-4. Defendant received sentences within the presumptive range.
Considering defendant’s argument, the Court of Appeals agreed with the State’s position that “the trial court’s statements were an accurate reflection of the law.” Id. at 4. The court noted that the pretrial remarks were the result of frustration that the defendant did not appear, and as for the remarks at sentencing, “the [trial] court did not suggest, much less explicitly state, that it was imposing a harsher sentence because Defendant invoked his right to a jury trial.” Id.at 10. Because the trial court’s comments were permissible, defendant could not demonstrate that he was punished for exercising his right to a jury trial.
Inevitable discovery justified admission of the evidence found after police discovered victim’s body during wellness check; conviction for kidnapping was double jeopardy where restraint of the victim led to her suffocation and was not separate and independent from the murder.
State v. Moore, COA23-816, ___ N.C. App. ___ (Oct. 15, 2024). In this Cumberland County case, defendant appealed after his convictions for first-degree murder, first-degree kidnapping, and common law robbery, arguing error in (1) denying his motion to suppress the results of a search of his former residence, (2) denying his motion to dismiss the kidnapping charge because it represented double jeopardy, (3) admitting Rule 404(b) evidence, and (4) excluding some of defendant’s testimony. The Court of Appeals majority found no error in (1), (3) or (4), but in (2) found that the kidnapping charge represented double jeopardy, vacating the sentence for kidnapping.
In August of 2018, police performed a wellness check on defendant’s wife after members of her family reported not hearing from her for a week. When she did not respond, police entered the residence and discovered her bound and cuffed to a bed with trash bags over her head, dead from apparent asphyxiation. The police officers also determined that defendant had not paid rent for the month and the landlord was preparing to evict them from the residence.
Taking up (1), the Court of Appeals explained that the trial court properly applied the inevitable discovery doctrine in this matter when admitting the evidence obtained from the residence, explaining the victim “would have been inevitably discovered by either her family or by the landlord who had begun eviction proceedings.” Slip Op. at 4. The court also noted that defendant had permanently abandoned the residence, forfeiting his standing to challenge the search.
Moving to (2), the court quoted State v. Prevette, 367 N.C. 474 (1986), for the concept that the State must admit “substantial evidence of restraint, independent and apart from the murder” to support a separate kidnapping charge. Slip Op. at 6. Here, the facts were similar to Prevette, as the victim’s “hands, feet, and arms were restrained [and] she could not remove the bags that caused her suffocation” based on the evidence. Id. at 5. The court acknowledged that the restraint of the victim’s legs and feet did not cause her suffocation, but noted that the legs and feet of the victim in Prevette were bound as well. Because there was no evidence that the victim was restrained “independently and apart from the murder,” the court vacated defendant’s sentence for kidnapping. Id. at 7.
Reaching (3), the court noted that the testimony in question dealt with a prior incident where defendant put his hands around the victim’s neck, but because of the overwhelming evidence of defendant’s guilt, defendant could not demonstrate prejudice from the testimony. In (4), the court found that defendant failed to “raise his argument as a constitutional issue” and the argument was waived on appeal. Id.at 8.
Judge Thompson dissented and would have found restraint of the victim independent and apart from the murder due to the additional restraints present and the evidence that defendant spent some amount of time smoking cigarettes and drinking coffee while the victim was restrained.
Totality of circumstances justified Terry frisk of defendant, and odor of marijuana supported probable cause to search defendant’s vehicle.
State v. Rowdy, COA24-64, ___ N.C. App. ___ (Oct. 15, 2024). In this Forsyth County case, defendant appealed his conviction for carrying a concealed weapon, arguing error in denying his motion to suppress a search of his vehicle because the officers lacked probable cause. The Court of Appeals disagreed, finding no error.
In July of 2020, a Forsyth County sheriff’s deputy observed defendant commit a traffic violation by driving into the oncoming traffic lane to go around another car waiting in a left turn lane. The deputy followed defendant and activated his lights and siren, but defendant did not immediately pull over. Defendant eventually stopped in an apartment complex known to be a high crime area, and the deputy initiated a traffic stop. During the stop, the deputy, along with another deputy who arrived to assist, smelled marijuana coming from defendant’s vehicle, and they asked defendant to step out of the vehicle. The deputies began questioning defendant about the smell of marijuana, and defendant “bladed” his body away from the officers and eventually stopped answering questions, at which point the deputies detained defendant. One of the deputies conducted a Terry frisk of defendant and felt an object in his pocket that turned out to be a blunt. After discovering the blunt, the deputies searched the vehicle and found the firearm giving rise to the charge. Before trial, defendant filed a motion to suppress, arguing that due to the legalization of hemp, the deputies did not have probable cause to frisk him or search his vehicle. The trial court denied the motion, and defendant was subsequently convicted.
The Court of Appeals approached the issue by first considering defendant’s challenged findings of fact, which all related to the odor of marijuana and the blunt discovered after the frisk. Defendant argued that there was no evidence the substance was marijuana, but the court noted his argument “[was] misplaced because the legalization of hemp does not eliminate the significance of the officer’s detection of an odor of marijuana for the purposes of determining probable cause.” Slip Op. at 8. The court turned to two recent decisions, State v. Little, COA23-410 (N.C. App. Sept. 3, 2024), and State v. Dobson, COA23-568 (N.C. App. April 16, 2024), to support the conclusion that the odor of marijuana could still support probable cause for a search, especially where the defendant did not claim he possessed legal hemp such as the current case. Additionally, the court noted defendant’s arguments were focused on “policy” and did not question the competency of the evidence before the court. Slip Op. at 10-11.
The court moved next to the Terry frisk of defendant and rejected defendant’s argument that the deputies lacked reasonable suspicion he was armed and dangerous. Here, the court considered the different factors identified by the trial court to find reasonable suspicion: (i) defendant failed to pull over when the deputy first activated his lights and siren and pulled into an apartment complex known as a high crime area; (ii) defendant had previous convictions for narcotics and carrying a concealed gun; and (iii) defendant’s body language when “blading” away from deputies. Under the “totality of the circumstances” standard, the court determined the factors were sufficient to support reasonable suspicion. Id. at 16.
Finally the court rejected defendant’s argument that the deputies lacked probable cause for the search of his vehicle after finding the blunt, explaining the search “was lawful and supported by probable cause without the discovery of the blunt[] [because the] odor of marijuana emanating from the vehicle provided probable cause.” Id. at 17. Similar to the analysis above, the court “follow[ed] well-established precedent” supporting the position that “the odor of marijuana, alone, is sufficient to establish probable cause to search a vehicle.” Id. at 19. Here, the deputies smelling marijuana represented sufficient evidence for probable cause, regardless of whether the substance was actually hemp or marijuana.
Judge Arrowood concurred by separate opinion to urge the Supreme Court of North Carolina to consider and address the issues presented by the legalization of hemp.
State failed to offer evidence that Kentucky felonies were substantially similar to North Carolina offenses for prior record level calculation.
State v. Sandefur, COA23-1012, ___ N.C. App. ___ (Oct. 15, 2024). In this Cleveland County case defendant appealed after being convicted of firearm and drug possession charges and receiving a prior record level V during sentencing. Defendant argued the state improperly classified his two felony convictions from Kentucky. The Court of Appeals agreed, remanding for resentencing.
In March of 2023, defendant came for trial on charges related to possession of a firearm and methamphetamine. After the jury returned verdicts of guilty, the trial court proceeded to sentence defendant, calculating 16 prior record level felony points. The trial court relied on a worksheet from the State which identified two felony convictions from Kentucky as G and F level felonies, with no further evidence to support they were substantially similar to North Carolina offenses.
Taking up the argument, the Court of Appeals reviewed G.S. 15A-1340.14, noting that the default assumption is an out-of-state felony conviction is equivalent to a Class I felony, and the burden is on the State to show the out-of-state violation is substantially similar to a higher level felony. Here, the only evidence submitted was a record level worksheet, despite the requirement that “the State must submit to the trial court a copy of the applicable out-of-state statute it claims to be substantially similar to a North Carolina offense.” Slip Op. at 6. Neither the State nor the trial court conducted any comparative analysis of the violations, and the trial court simply accepted the worksheet with the information provided, which was error. As a result, the court remanded for resentencing, noting that the State could offer additional information at the resentencing hearing.
Defendant’s failure to appear at probation office and failure to update his residence with probation officer represented violation of probation conditions and absconding.
State v. Tanner, COA24-166, ___ N.C. App. ___ (Oct. 15, 2024). In this Guilford County case, defendant petitioned for a writ of certiorari to review the revocation of his probation and activation of his suspended sentence for willfully absconding from supervision. The Court of Appeals allowed the petition but affirmed the trial court’s judgment.
In December of 2022, defendant was placed on supervised probation and ordered to report to the probation office within 48 hours. Defendant did not report, but called his probation officer, who urged him to appear in person the next day. After several more phone calls and failures to appear in-person, the probation officer visited defendant’s address on file, which was an apartment, and left a hang tag. Based on information from defense counsel, defendant’s wife had secured a G.S. 50B domestic violence prevention order against him, and he was not in the apartment but living in a hotel. At one point defendant told a probation officer that he was in Winston-Salem, although he had not reported traveling outside the area prior to leaving. In March of 2023, the probation officer filed violation reports and the trial court entered a judgment revoking defendant’s probation and activating his sentence.
Looking at the evidence, the Court of Appeals noted that “failed to give his probation officer his new physical address or the name and address of the hotel he was purportedly staying in” and the trial court could reasonably conclude defendant had absconded. Slip Op. at 5. The court also noted that there was some confusion about the form AOC-CR-607 Judgment and Commitment, as it was possibly unclear whether the trial court determined that defendant either (a) admitted to violating the conditions of his probation, or (b) committed a new criminal offense. The court concluded the record was sufficient to show the trial court’s conclusion that defendant absconded under G.S. 15A-1343(b)(3a).
Chief Judge Dillon dissented, and wrote to emphasize that he did not believe the State met its burden to show defendant absconded based on the conduct in the probation reports.