This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on October 18, 2022. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Officer shining a flashlight through defendant’s windows during a traffic stop was not a “search” for Fourth Amendment purposes.
State v. Hunter, 2022-NCCOA-683, ___ N.C. App. ___ (Oct. 18, 2022). In this Gaston County case, defendant appealed the trial court’s denial of his motion to suppress after entering a no contest plea to possession of a controlled substance and drug paraphernalia, and failure to stop at a stop sign. The Court of Appeals affirmed the trial court’s judgment.
In October of 2020, police officers observed a car roll through a stop sign and pulled over the vehicle. When officers approached, defendant was behind the wheel; one officer took defendant’s license and information to perform a warrant check, while the other officer stayed with defendant and shined a flashlight through the windows to observe the vehicle. After shining the light around the vehicle, the officer noticed a plastic baggie next to the driver’s door, and defendant was detained while the officers retrieved and tested the baggie. The baggie tested positive for crack-cocaine.
On appeal, defendant argued that the stop was inappropriately pretextual, and that the officer shining a flashlight lacked probable cause to search his vehicle. The Court of Appeals disagreed, explaining that “[o]fficers who lawfully approach a car and look inside with a flashlight do not conduct a ‘search’ within the meaning of the Fourth Amendment.” Slip Op. at 4-5, quoting State v. Brooks, 337 N.C. 132, 144 (1994). The court then turned to the stop, explaining that “both the United States Supreme Court and our North Carolina Supreme Court have ruled that an officer’s subjective motive for a stop has no bearing on the Fourth Amendment analysis.” Slip Op. at 9, citing Whren v. United States, 517 U.S. 806, 813 (1996); and State v. McClendon, 350 N.C. 630, 635-36 (1999). Having established for Fourth Amendment analysis that the subjective motive for the stop was irrelevant and that a flashlight through defendant’s window was not a search, the court affirmed the trial court’s decision to deny the motion.
Subjective element of “true threat” for communicating threats charge was satisfied by charging document and jury instructions tracking language of G.S. § 14-277.1, including “willfully threaten.”
State v. Guice, 2022-NCCOA-682, ___ N.C. App. ___ (Oct. 18, 2022). In this Buncombe County case, defendant appealed his conviction for communicating threats, arguing that his words did not constitute a true threat and the trial court erred by denying his motion to dismiss and request for a jury instruction on true threats. The Court of Appeals found no error by the trial court.
In May of 2020, a resident at an Asheville apartment complex called security because she heard a disturbance in the neighboring apartment. When security arrived to investigate, defendant opened the apartment door and was aggressively hostile to the security officer, getting into the officer’s face and threatening to beat him. At trial, the security officer testified that he believed defendant was going to carry out the threat due to his body language and anger during the interaction. Defendant was subsequently convicted by a jury of the communicating threats charge.
The Court of Appeals first considered whether the charging document contained sufficient facts to allege a “true threat” unprotected by the First Amendment, explaining that there are “objective and subjective” elements to the true threat analysis. Slip Op. at 6. Because the charging document tracked the text of G.S. § 14-277.1 and contained “willfully threaten,” the court found the subjective element present and sufficient to support the offense charged. Id. at 8. The court then turned to the motion to dismiss, finding that the testimony in the record was sufficient to support the conclusion that defendant had the specific intent to make a threat against the security guard. The court last turned to the requested jury instruction, and applied a similar analysis from the charging document. The court concluded that the jury instruction contained all elements of the offense, noting “[t]he subjective component, or specific intent, of true threats is covered by defining the phrase of willfully threaten as ‘intentionally or knowingly’ ‘expressi[ng] . . . an intent or a determination to physically injure another person.’” Id. at 12.
Exclusion of testimony from defendant’s expert was proper under Rule 702(a); admission of lay opinion testimony was not prejudicial due to substantially similar testimony from other witnesses.
State v. Mason, 2022-NCCOA-684, ___ N.C. App. ___ (Oct. 18, 2022). In this Rowan County case, defendant appeals her conviction for second-degree murder, challenging the exclusion of her expert’s testimony and the admission of lay opinion testimony from the State’s witness. The Court of Appeals found no prejudicial error.
In April of 2018, defendant was involved in a scuffle at a gaming arcade in Salisbury. Although who initiated the confrontation was unclear from the testimony and video, defendant and the eventual male victim engaged in a physical confrontation while waiting to cash out of the arcade. Two other women were also involved in the initial confrontation, and one woman was physically assaulted by the man involved. After fighting ensued, defendant was thrown against an ATM and knocked to the floor; meanwhile the male victim was on top of another woman engaged in a physical confrontation. Defendant drew her handgun and shot the victim twice, once in the back and once in the chest. At trial, defendant testified that she acted in self-defense and defense of others.
The Court of Appeals first considered the exclusion of testimony from defendant’s expert regarding the principles of self-defense and use of force under Rule 702(a) of the North Carolina Rules of Evidence. The court explained that “Rule 702(a) has three main parts, and expert testimony must satisfy each to be admissible,” a role for the trial court to determine at its discretion. Slip Op. at 10, quoting State v. McGrady, 368 N.C. 880, 889 (2016). The court explained the testimony must (1) be from a qualified expert, (2) be relevant to the trial, and (3) reliable in the opinion of the trial court. In this matter, defendant’s expert was a former law enforcement officer but he was not an expert in concealed carry class training, and the trial court found that no specialized knowledge was required to determine the reasonableness of defendant’s actions. As a result, the court found that the expert “lacked sufficient ‘expertise to be in a better position than the trier of fact to have an opinion on the subject’ of the appropriate use of force by civilians.” Id. at 15.
Regarding the admission of lay opinion, the court explained that defendant was challenging the admission of a witness’s statement that no lives were in danger that April night in the arcade, which called into question her use of force. Assuming arguendo that the admission of this testimony was improper, the court held that defendant could not show prejudice, as several other witnesses testified (without objection) to their perception of the level of danger in the arcade, specifically that it was low and not likely to result in harm. Id. at 22. As a result, defendant could not show any prejudice from the testimony she found objectionable.
Imposition of satellite-based monitoring for first-degree sex offense with a child did not represent a violation of the Fourth Amendment.
State v. Griffin, 2022-NCCOA-681, ___ N.C. App. ___ (Oct. 18, 2022). In this case, arising from a Craven County court order imposing satellite-based monitoring (“SBM”) on defendant after his Alford plea to first-degree sex offense with a child, the Court of Appeals considered for the third time whether the imposition of a thirty-year term of SBM represented a violation of defendant’s rights under the Fourth Amendment. After reviewing applicable precedent from the North Carolina Supreme Court, the court affirmed the trial court’s SBM order.
This opinion is the third to be issued by the Court of Appeals in this matter, following a series of remands due to evolving caselaw regarding the constitutionality of SBM. In a 2018 opinion the court overruled the trial court’s imposition of SBM, following the similar case State v. Grady, 259 N.C. App. 664 (2018). The path of the Griffin and Grady matters remained intertwined as the North Carolina Supreme Court released State v. Grady, 372 N.C. 509 (2019), creating a new three-factor test for the imposition of SBM. The Griffin matter was remanded to the court, which issued a second opinion in 2020, again overturning the SBM order. By the time the matter reached the supreme court a second time, it had already issued State v. Hilton, 378 N.C. 692 (2021), and State v. Strudwick, 379 N.C. 94 (2021), and the General Assembly had passed several revisions to the SBM laws. As a result, the supreme court remanded a third time for consideration of the applicable caselaw and statutory changes.
In the current opinion, the court applied the three-part test from Hilton and Strudwick, considering (1) the State’s interest in imposing SBM, (2) defendant’s privacy interests, and (3) the level of intrusion SBM represents into defendant’s privacy interests. Exploring (1), the court noted that the legitimacy of the State’s interest in preventing future sex crimes was clear from legislative enactment of the program and weighed in favor of imposing SBM. Considering (2), the court explained that defendant’s status as a sex offender supported a more limited scope of privacy than the general public, holding that since “[d]efendant’s liberty and privacy interests are limited for the protection of children particularly, and  [d]efendant was convicted of sexually abusing a minor . . . his privacy rights are appreciably diminished for purposes of analyzing SBM’s reasonableness.” Slip Op. at 15. When considering intrusiveness under (3), the court compared the SBM device defendant must wear to the devices in Hilton and Strudwick, where the supreme court held they were “more inconvenient than intrusive.” Id. at 16, quoting Hilton. Finally the court noted that the recent changes to the SBM program meant that defendant could appeal to have his SBM term capped at ten years, drastically reducing the intrusiveness of the original order.
Officer’s show of authority by blocking defendant’s vehicle in a driveway and activating blue lights represented a seizure under the Fourth Amendment.
State v. Eagle, 2022-NCCOA-680, ___ N.C. App. ___ (Oct. 18, 2022). In this Orange County case, defendant appealed her conviction for impaired driving, arguing the trial court erred by denying her motion to suppress an unlawful seizure by the arresting officer. The Court of Appeals agreed with defendant and found error in the denial of her motion to suppress.
In November of 2019, an officer from the Orange County Sheriff’s Department was performing checks of businesses along a road at 3:00am. The officer observed defendant’s car pulling into the driveway of a closed business. Driving slowly by the driveway, the officer put the cruiser in reverse, backed up to the driveway and pulled in, blocking defendant’s exit while activating the cruiser’s blue lights. The officer ran defendant’s plates, then approached the vehicle to ask what defendant was doing, noticing a strong odor of alcohol and glassy eyes. Defendant was charged with impaired driving; at trial, the court concluded that the encounter was voluntary up until the time that defendant gave the officer her identification card, denying her motion to suppress.
Reviewing defendant’s argument, the Court of Appeals noted it was undisputed that the officer did not observe a crime before pulling in behind defendant. The only issue was when the encounter became a seizure under the Fourth Amendment. The court explained that a “show of authority” such as blocking a vehicle’s exit or activating blue lights can be interpreted as a seizure, even when an officer does not physically restrain or touch the defendant. Slip Op. at 13. Emphasizing the difficult choice that the defendant had as a result of the officer’s actions, the court noted “in such a situation most people would feel compelled to remain in their car and wait to speak with the officer, knowing that attempting to leave would only end in trouble and/or danger.” Id. at 17. As a result, the court held that defendant was seized “at the point that [the officer] pulled in behind [d]efendant’s car while activating her blue lights and blocked [d]efendant’s available exit.” Id. at 22.
Admission of arresting officer’s testimony regarding specific blood alcohol concentration as a result of HGN test was harmless error due to overwhelming evidence supporting intoxication; admission of non-testifying expert’s report was proper as the basis of testifying expert’s opinion.
State v. Watson, 2022-NCCOA-687, ___ N.C. App. ___ (Oct. 18, 2022). In this Robeson County case, defendant appealed his conviction for driving while impaired, arguing the trial court erred by admitting a toxicology report without authentication and allowing the arresting officer to testify to defendant’s specific blood alcohol concentration. The Court of Appeals found no prejudicial error by the trial court.
In September of 2018, defendant was stopped by an officer due to a partially obstructed license plate; after stopping defendant, the officer noticed glassy eyes and slurred speech, leading to a horizontal gaze and nystagmus (“HGN”) test. Defendant performed poorly on the test, and a later toxicology blood test found that defendant’s blood alcohol concentration was 0.27. At trial, the arresting officer testified about the results of the HGN test, saying “[t]here’s a probability that he’s going to be a .08 or higher, 80% according to the test that was done.” Slip Op. at 3. Also during the trial, the SBI agent responsible for preparing the report on defendant’s toxicology test was not available to testify, so another agent performed an administrative and technical review of the report and was permitted to testify as an expert about the results. The report was admitted despite defendant’s objection.
Reviewing defendant’s appeal, the court first noted that Rule 703 of the North Carolina Rules of Evidence does not require the testifying expert to be the person who performed the test, explaining “[a]n expert may properly base his or her opinion on tests performed by another person, if the tests are of the type reasonably relied upon by experts in the field.” Id. at 5, quoting State v. Fair, 354 N.C. 131, 162 (2001). Here the report was admitted as the basis of the testifying expert’s opinion, not as substantive evidence, within the scope of applicable precedent around Rule 703. The court also noted that defendant had ample opportunity to cross-examine the expert on the basis of her opinion and her credibility in front of the jury, avoiding any confrontation clause issues.
The court found that admitting the arresting officer’s testimony regarding defendant’s specific blood alcohol level after conducting an HGN test was error, but harmless error. There are two bases under G.S. § 20-138.1 to convict a defendant for impaired driving; subsection (a)(1) and (a)(2) are distinct and independent grounds for conviction of the same offense. Id. at 10, citing State v. Perry, 254 N.C. App. 202 (2017). The court noted that overwhelming evidence of both prongs was present in the record, and specifically the second prong, driving with an alcohol concentration of 0.08 or more, was supported by expert testimony unrelated to the officer’s testimony. Finding no reasonable possibility the jury could have reached a different conclusion, the court upheld the verdict.
Admission of hearsay in search warrant/affidavit was harmless error when officer was present for cross-examination; sufficient evidence supported conclusion that substance was marijuana not hemp for purposes of motion to dismiss.
State v. Booth, 2022-NCCOA-679, ___ N.C. App. ___ (Oct. 18, 2022). In this Beaufort County case, defendant appealed his possession of marijuana and marijuana paraphernalia convictions, arguing the trial court erred by admitting hearsay testimony and denying his motion to dismiss for insufficient evidence. The Court of Appeals found harmless error in admitting the hearsay testimony and sufficient evidence to support the convictions.
Between February and March of 2019, the Beaufort County Sheriff’s Office used a confidential informant to conduct drug buys at a car wash owned by defendant’s father. Using audio and video transmitters, the officers heard and observed defendant discuss the price of drugs and handing drugs over for sale. Defendant was subsequently convicted based on the testimony of one of the officers who arranged the buys and observed the transmitters during the buys from defendant. This officer testified that he had known defendant since he was a little boy and would recognize his voice in a recording.
Defendant argued that the testimony of the officer was hearsay, as he read directly from the search warrant and affidavit; the court disagreed, noting that the officer offered extensive testimony from personal memory, and evidence in the record supported the conclusions outside of the hearsay statements. Additionally, the court noted defendant had ample opportunity for cross-examination on the substance of the officer’s testimony, meaning even if the portions of testimony that were hearsay were admitted erroneously, they did not rise to the level of prejudicial under the plain error standard. Slip Op. at 6-7, citing State v. Ridgeway, 137 N.C. App. 144 (2000). The court likewise held that admitting the search warrant and affidavit was harmless error, as the officer was present on the stand for cross-examination about the contents of the search warrant. Id. at 9-10, citing State v. Jackson, 24 N.C. App. 394 (1975).
The basis of defendant’s motion to dismiss was the State did not admit sufficient evidence to establish that the product seized was marijuana instead of hemp. The court noted extensive evidence in the record regarding (1) defendant referring to the substance for sale as “marijuana” and (2) the officer’s testimony about the substance and the paraphernalia present that supported the conclusion that defendant was selling marijuana. Id. at 13-14. Based on this evidence the court found no error with the denial of defendant’s motion.
Trial court properly admitted recording of defendant’s voice after authentication by sergeant familiar with PayTel system.
State v. Steele, 2022-NCCOA-686, ___ N.C. App. ___ (Oct. 18, 2022). In this Forsyth County case, defendant appealed his convictions for intimidating or interfering with witnesses and obtaining habitual felon status, arguing that the trial court erred by admitting a recording of his phone call. The Court of Appeals disagreed, finding no error.
Defendant was indicted for calling a witness while he was being held at the Forsyth County Detention Center and attempting to convince her not to testify, even though she had been subpoenaed. The State offered a disc containing a recording made by the detention center’s PayTel system of a call from defendant to the witness, and authenticated the disc through the testimony of a sergeant familiar with the operation of the system who created the disc. The system automatically recorded calls and matched them with a number assigned to each detainee. The State then offered the testimony of two other officers who were familiar with the voice of defendant to support that it was his voice on the recording.
Reviewing defendant’s argument, the court noted that the exhibit was admitted after being authenticated by the sergeant familiar with its creation. Defendant argued that the State had offered insufficient testimony to identify his voice. This was a confused argument, the court explained, as the recording was admitted, along with PayTel spreadsheet information regarding defendant’s ID number, before the testimony of the officer in question. Because the recording was admitted by the trial court before the testimony attempting to identify defendant’s voice, defendant’s basis for challenging the admission of the recording was irrelevant and had no bearing on the propriety of the trial court’s decision to admit the exhibit. Slip Op. at 10. As such, the trial court did not abuse its discretion admitting the recording, and committed no error.
Judge Tyson concurred in the result by separate opinion, noting defendant did not show “any basis or prejudice to reverse the trial court’s judgment.” Id. at 12.