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Case Summaries – N.C. Court of Appeals (Oct. 6, 2020)

This post summarizes published criminal opinions by the North Carolina Court of Appeals released on October 6, 2020.

(1) Trial court’s instructions that the jury “will determine what the assault was” did not amount to an improper expression of opinion on the evidence in context; (2) The trial court’s response to a jury question during deliberations regarding a prior conviction was an not impermissible expression of opinion on the evidence

State v. Austin, ___ N.C. App. ___ (Oct. 6, 2020). The defendant was tried and convicted of assault on female and habitual misdemeanor assault in Forsyth County and thereafter pled guilty to attaining habitual felon status. On appeal, he argued that the trial court erred by expressing an opinion on the evidence during its instructions to the jury and by improperly answering a jury question during deliberations. A majority of the Court of Appeals found no error.

(1) G.S. §§ 15A-1222 and 1223 prohibit the trial court from expressing opinions on the evidence to the jury. An alleged violation of this statutory mandate may be reviewed on appeal notwithstanding the defendant’s failure to object at the time, but the defendant has the burden to show that remarks were prejudicial under the totality of circumstances. Here, the defendant pointed to parts of the jury instructions where the trial court described the various alleged assaults and told the jury “You will determine what the assault was . . .” Slip op. at 9. However, the jury instructions began with the trial court informing the jury that it must determine “whether the defendant [was] guilty or not guilty of [the assaults].” Id. (emphasis in original). Under the totality of circumstances, the trial court’s instructions properly left the question of guilt or innocence “entirely for the jury” and did not amount to an improper expression of opinion. Id. at 10 (emphasis in original).

(2) During deliberations, the jury asked the trial court whether the jury had to find guilt beyond a reasonable doubt for the habitual misdemeanor assault charge. One of the records of a prior assault conviction admitted at trial had an apparent mistake as to the dates of the offense and conviction (the date of offense was listed as October 2010 and the date of conviction as March 2010). The trial court had instructed the jury with those dates as to that prior assault conviction and reiterated those instructions in response to the jury question. The trial court also reminded the jury that the reasonable doubt standard applied to all parts of the trial and re-instructed the jury on the burden of proof, the presumption of innocence, and reasonable doubt. According to the defendant, the trial court’s responses amounted to an impermissible expression of opinion about the existence of the prior conviction. The Court of Appeals again disagreed:

The trial court emphasized that it was the duty of the jury to determine the facts and whether the documents at issue were sufficient to indicate the State had met its burden of proof of as to the charge of habitual misdemeanor assault beyond a reasonable doubt. Thus, upon review of defendant’s challenge to these statements . . . [and] the context in which they were made, we discern no improper expression of opinion by the trial court. Id.

There was therefore no error, and the convictions affirmed.

Judge Brook dissented. He would have found that that comments by the trial court during its jury instructions “repeatedly assumed the proof of the central fact at issue in the case” (whether the assault occurred or not), that this violated the statutory mandate against expression of opinion, and that the error required new trial. Id. at 22 (Brook, J., dissenting).

(1) Court of Appeals had appellate jurisdiction despite defective notices of appeal where court granted defendant’s petitions for writ of certiorari in its discretion and State did not object; (2) Sufficiency of evidence argument was not preserved and defendant’s argument did not warrant invocation of Rule 2 of the Appellate Rules of Procedure; (3) Where the defendant was not given an opportunity to be heard and no other evidence showed that the defendant had notice and an opportunity to be heard, attorney fee award was vacated

State v. Baungartner, ___ N.C. App. ___ (Oct. 6, 2020). The defendant was convicted at trial of driving while impaired and habitual DWI in Guilford County. (1) In its discretion, the Court of Appeals granted the defendant’s petitions for writ of certiorari to review the criminal judgment and civil judgment for attorney fees. Following his conviction for habitual impaired driving, the defendant filed two pro se notices of appeal. Those notices did not contain a certificate of service indicating service on the State and failed to name the court to which the appeals were taken. Appellate counsel was later appointed, who recognized the pro se notices of appeal were potentially defective and filed two petitions for writ of certiorari seeking appellate review. The pro se notices of appeal were an indication that the defendant intended to preserve his right to appellate review, and the Court of Appeals previously held in an unpublished case that the types of defects in the notices of appeal at issue did not require dismissal for lack of jurisdiction. Where (as happened here) the State does not object, the Court of Appeals may exercise jurisdiction by granting the petitions for writ of certiorari. Thus, the Court of Appeals had jurisdiction to consider the defendant’s arguments.

(2) During trial, the defendant moved to dismiss for insufficiency of the evidence at the close of the State’s case in chief. The defendant thereafter presented evidence and failed to renew the sufficiency motion at the close of all evidence. Because sufficiency review was therefore not preserved, the defendant requested that the Court of Appeals invoke Rule 2 of the Rules of Appellate Procedure to suspend the preservation rules and review the issue. The court declined to do so and thus affirmed the habitual DWI conviction.

(3) The trial court awarded the defendant’s trial counsel attorney fees as a civil judgment without giving the defendant an opportunity to personally be heard, in violation of G.S. § 7A-455. More than 35 recent cases have reversed the attorney fee award in similar circumstances. Following that line of cases, the majority of the panel vacated the attorney fee order and remanded for a hearing on the matter where the defendant could be personally heard or for “other evidence in the record demonstrating that the defendant received notice, was aware of the opportunity to be heard on the issue, and chose not to be heard.” Slip op. at 11.

Judge Tyson dissented. He would have refused to grant the petitions for writ of certiorari and dismissed all the defendant’s arguments as frivolous.

(1) Where the defendant was not actively or constructively present at the time of the underlying offense, there was insufficient evidence to show the defendant acted in concert to obtain property by false pretenses; (2) Where defendant’s false statement to investigators did not actually impede the investigation, there was insufficient evidence of felony obstruction of justice; (3) Argument that an email sent to AOC at defendant’s direction was a command and therefore not hearsay was not presented to the trial court and was waived on appeal; (4) The trial court did not plainly err in failing to instruct the jury on the specific misrepresentations for the obtaining property by false pretense offenses

State v. Bradsher, ___ N.C. App. ___ (Oct. 6, 2020). The defendant, the former District Attorney for Person and Caldwell Counties, was tried for obtaining property by false pretenses, conspiracy to obtain property by false pretenses, aiding and abetting obtaining property by false pretenses, three counts of obstruction of justice, and failure to discharge the duties of his office. The jury acquitted on one count of felony obstruction and the conspiracy count but convicted on the remaining charges (with the exception that the jury returned a verdict of guilty of misdemeanor obstruction on one of the remaining felony obstruction counts). The trial court subsequently arrested judgment on the aiding and abetting obtaining property conviction. The charges stemmed from a scheme whereby the defendant and another elected District Attorney hired each other’s wives to work in each other’s offices. Under this arrangement, both wives were wrongfully paid for working hours that they had not actually worked.

(1) There was insufficient evidence to support the conviction for obtaining property by false pretenses. The State alleged that the defendant acted in concert with the employee who improperly submitted work hours. Acting in concert requires the actual or constructive presence of the defendant at the scene of the crime. “A person is constructively present during the commission of a crime if he is close enough to provide assistance if needed and to encourage the actual execution of the crime.” Slip op. at 15 (citation omitted). Although the employee at issue worked for the defendant, she was allowed to work at her husband’s office in another district. The defendant was therefore not physically present when the fraud of reporting unworked hours occurred. The State argued that the defendant was constructively present, pointing out that the fraudulent hours were approved by a supervisor at the defendant’s direction. The court rejected this argument, noting that the approval of hours occurred at a much later time than when the hours were submitted. While “actual distance is not determinative, . . . the accused must be near enough to render assistance if need be and to encourage the actual perpetration of the crime.” Id. at 19 (citation omitted). Here, the defendant was not in the same county as the employee who submitted the fraudulent hours at the time they were submitted. The fact that the employee could have called the defendant for help with the crime at the time was not enough to satisfy the constructive presence element. “To hold the theory of acting in concert would be satisfied merely where ‘remote assistance’ is possible would broadly expand the universe of criminal conduct under this theory.” Id. at 22. Thus, the defendant’s conviction for acting in concert to obtain property by false pretenses was vacated for insufficient evidence [although the trial court was instructed on remand to reinstate the judgment previously arrested for aiding and abetting obtaining property].

(2) There was also insufficient evidence of felony obstruction of justice. That offense requires the State to prove that the defendant actually impeded the administration of justice. The indictment alleged that the defendant made false statements to an SBI investigator concerning the employee. One of the defendant’s statements at issue was “at most misleading, and not false,” as it was a misrepresentation by omission and not affirmatively a false statement as the indictment charged. There was sufficient evidence that another of the defendant’s statements to the investigator was false, but there was no evidence that this statement actually obstructed the course of the investigation. The defendant responded truthfully to some of the investigator’s questions about the employee, which actually facilitated the investigation. The defendant was never directly asked whether the employee was in fact performing work for the defendant. “To support a conviction for obstruction of justice, the State must establish substantial evidence for every element of the crime, including that the act in question ‘obstructed justice[.]’” Id. at 27 (citation omitted). The motion to dismiss for felony obstruction of justice therefore should have been granted, and that conviction was vacated.

(3) The defendant argued that the trial court improperly excluded testimony regarding an email sent by an assistant to the Administrative Office of the Courts at the defendant’s direction. At trial, the defendant argued that the email fell within the business records exception to the prohibition on hearsay, that the email was simply not hearsay, and that the State opened the door to the admission of the email through its questions of the witness. On appeal, the defendant argued that the email should have been admitted because it was a directive to his employee, pointing to cases holding that commands are not hearsay because they are not offered for the truth of the matter (rather, they are offered to show that the command was given). It was not apparent from context that the defendant was arguing for the email’s admission as a command, and the parties and trial court did not address that argument. Since this argument was not made at the trial level, it was not preserved and was waived on appeal.

(4) The trial court did not commit plain error by failing to instruct the jury on the specific misrepresentations for the obtaining property by false pretenses offenses. “[A] jury instruction that is not specific to the misrepresentation in the indictment is acceptable so long as the court finds ‘no variance between the indictment, the proof presented at trial, and the instructions to the jury.’” Id. at 34 (citation omitted). The defendant argued that the evidence showed alternative false representations that the jury could have improperly relied on in rendering its verdict of guilty for the two offenses. Reviewing the evidence, the court rejected this argument. “We hold the trial court did not err, nor plainly err, in failing to give an instruction about the misrepresentation alleged in the indictment.” Id. at 37.

Where the defendant presented substantial evidence of lawful possession of weapons of mass destruction, the trial court plainly erred in failing to instruct on that exception to the offense

State v. Carey, ___ N.C. App. ___ (Oct. 6, 2020). The defendant was convicted at trial of impersonating an officer and possession of a weapon of mass destruction (flashbang grenades) in Onslow County. On appeal, the Court of Appeals determined that flashbang grenades did not qualify as a weapon of mass destruction and vacated that conviction. The N.C. Supreme Court reversed on that point and remanded for the Court of Appeals to consider the defendant’s other arguments. The defendant filed a new brief with the court, arguing the trial court erred by failing to instruct the jury about the exception for lawful possession of weapons of mass destruction. See G.S. § 14-288.8(b)(3). The defendant contended that he presented evidence that he qualified for the exception as a person “under contract with the United States” and it was error to fail to instruct the jury on the exception. While the defendant challenged jury instructions in his original brief to the Court of Appeals, he did not raise this issue. He therefore asked the court to invoke Rule 2 of the Rules of Appellate Procedure to review this argument, and the court granted that request.

At trial, the defendant presented evidence that he was an active-duty U.S. Marine serving as a weapons technician, and that he came into possession of the grenades as part of his duties in that capacity. The State did not contest this evidence at trial, but argued on appeal that the defendant failed to promptly return the weapons to the Marine Corps and that the defendant was “on a detour” (and not acting in his capacity as a solider) at the time of the offense. “Even if the State’s argument is true, this would not overcome Defendant’s properly admitted testimony and his right for the jury to resolve this issue.” Carey Slip op. at 8. The trial court had a duty to instruct the jury on all substantial features of the case, including the defense of lawful possession raised by the defendant’s evidence, and its failure to do so was plain error. The judgment of conviction for possession of a weapon of mass destruction was therefore vacated and the matter remanded for a new trial on that offense.

Judge Young dissented. According to his opinion, the N.C. Supreme Court’s decision remanding the case was limited to “the defendant’s remaining challenges” – those that were raised but not decided in the defendant’s original appeal to the Court of Appeals. The mandate therefore did not include new arguments that had not previously been raised at all, and Judge Young would not have considered the lawful possession argument.

(1) Child abduction is a general intent crime, and the State need only show that the defendant acted knowingly, not willfully; (2) There was sufficient evidence to support child abduction where the defendant continued fleeing in a stolen car after realizing a child was present in the vehicle; (3) Because child abduction is not a specific intent crime, the trial court did not plainly err in failing to instruct the jury that the defendant must have acted willfully; (4) Where the evidence supported each possible theory of first-degree kidnapping, the trial court did not plainly err in instructing the jury on each theory notwithstanding the single theory alleged in the indictment; (5) Where defendant was improperly convicted of larceny of a motor vehicle and possession of stolen goods for the same property, the possession of stolen goods conviction was vacated

State v. French, ___ N.C. App. ___ (Oct. 6, 2020). In this Lincoln County case, the defendant stole a car left running outside of a gas station. A three-year old child was in the backseat. Once officers attempted to stop the car, the defendant led police on a high-speed chase and ultimately crashed. The child was not harmed. During the chase, the defendant called 911 and attempted to bargain for the child’s release. He was charged with first-degree kidnapping, abduction of a child, larceny of a motor vehicle, possession of stolen property, and habitual felon. The jury convicted on all counts. The defendant did not appeal, but later filed a petition for writ of certiorari seeking review of his convictions, which was granted.

(1) The child abduction statute includes language that the offense must occur “without legal justification or excuse.” See G.S. § 14-41(a). The defendant contended that this language required the State to prove that the defendant acted willfully, and that the failure to instruct the jury on mens rea improperly treated the crime as a strict liability offense. The Court of Appeals disagreed. There is no requirement of “willfulness” in the language of the statute. While the offense is not a strict liability crime, it is also not a specific intent crime as defendant argued. Rather, the offense is a general intent crime, requiring a showing only that the defendant acted “knowingly.” The “without justification or excuse” language in the statute allows the defendant to argue defenses like mistake of fact, necessity, or others, but does not create a specific intent requirement. This argument was therefore rejected.

(2) There was sufficient evidence to support the conviction for child abduction. The evidence showed that the defendant continued driving the car at high speeds while fleeing police, even after realizing that a child was in the backseat. After the point at which the defendant called 911 and acknowledged the presence of the child in the car, he continued to disobey police and dispatch commands to stop and continued fleeing for at least 15 minutes. Though “[a] defendant may exculpate a mistake though subsequent conduct,” the defendant here made no such showing. Slip op. at 10.

(3) There was no error, much less plain error, in the trial court’s failure to instruct the jury that the defendant must have acted willfully in abducting the child, for the same reasons that the statute does not create a specific intent crime. There was therefore no error in the trial court’s instructions to the jury for that offense.

(4) During a pretrial conference, the parties agreed that the jury would be instructed only on removal as the State’s theory for first-degree kidnapping, which was the theory alleged in the indictment. At charge conference, the State requested and received jury instructions on all three possible theories (restraint, removal, or confinement). See G.S. § 14-39. Trial counsel for the defendant assented to those instructions and did not otherwise object. Despite trial counsel’s agreement, this argument was not waived and could be reviewed for plain error. However, the court found no plain error based on the evidence (which supported each theory), and the fact that there was no conflicting evidence as to the three theories. “Defendant cannot demonstrate plain error because it is undisputed that the evidence at trial supported the theory of kidnapping alleged in the indictment––removal––and also supported the two additional theories of kidnapping included in the instruction––restraint and confinement.” French Slip op. at 12.

(5) The trial court erred in sentencing the defendant for possession of stolen goods (the car) and larceny of a motor vehicle. “A defendant cannot be convicted of both [of these] offenses when the subject property is the same.” Id. at 14. The Court of Appeals therefore vacated the conviction for the possession of stolen goods conviction and found no error as to the defendant’s other convictions.

(1) Where State filed MAR within 10 days of judgment, trial court retained jurisdiction to amend judgment notwithstanding defendant’s notice of appeal; (2) Where the trial court amended the judgment to correct duplicative larceny convictions, that issue was moot on appeal; (3) Where judgment incorrectly reflected a habitual felon sentence rather than a habitual breaking or entering sentence, the matter was remanded for correction of clerical error

State v. Joiner, ___ N.C. App. ___ (Oct. 6, 2020). The defendant in this Forsyth County case was charged with two counts felony breaking or entering, two counts felony larceny after b/e, two counts felony larceny of property over $1000, and habitual breaking or entering, stemming from two break-ins and larcenies from Wake Forest University dormitory rooms. At trial, the jury convicted the defendant of the two felony breaking or entering offenses, two felony larceny after b/e offenses, one felony larceny for theft of property over $1000, and one misdemeanor larceny, along with habitual breaking and entering. Following his notice of appeal, the State filed a motion for appropriate relief (“MAR”) within ten days of the judgment, asking the trial court to arrest judgment on the felony larceny for theft of property over $1000 and the misdemeanor larceny as duplicative. The trial court granted that request and amended the judgment accordingly.

(1) The defendant argued that the trial court was divested of jurisdiction to amend the judgments in the case after he had given notice of appeal. This was incorrect. “The trial court retains jurisdiction until a notice of appeal is given and fourteen days have passed.” Slip op. at 5 (citation omitted). Further, once the State filed a timely 10-day MAR, the period of time for the defendant to give notice of appeal is extended 14 days under G.S. § 15A-1448(a)(2) from the date the trial court rules on the MAR. That statute provides that “when a proper motion for appropriate relief is made, the case shall remain open for the taking of an appeal until the court has ruled on the motion.” Id. (citing G.S. § 15A-1448). The trial court thus retained jurisdiction to amend the judgments.

(2) The defendant also argued that the trial court should have granted his motions to dismiss two of the larceny charges, pointing to the established rule that the taking of several items of property in the course of one act or event establishes only one larceny. Here, the defendant was improperly charged and convicted of multiple larcenies based on different items of property taken at one time. Because the trial court fixed the problem of duplicative larceny convictions with its MAR order, the issue was moot, and the argument dismissed.

(3) The trial court’s judgment incorrectly noted the defendant was a habitual felon, rather than one convicted of habitual breaking or entering. This was a clerical error, and the matter was remanded for correction of that error only. The convictions were otherwise affirmed.

(1) Defendant’s constitutional challenges to consecutive terms of life with parole were preserved; (2a) De facto life sentences may violate Miller and its progeny; (2b) Consecutive sentences may aggregate to create a de facto life sentence; (2c) Defendant’s minimum sentence of 50 years constituted a de facto life sentence in violation of Miller

State v. Kelliher, ___ N.C. App. ___ (Oct. 6, 2020).  The defendant was a participant in a double murder at the age of 17 and sentenced to consecutive terms of life without parole (“LWOP”) in Cumberland County in 2001. He moved for resentencing pursuant to Miller v. Alabama, 567 U.S. 460 (2012) (holding that mandatory life without parole sentences for juvenile offenders violates the 8th Amendment) and its progeny. The trial court determined at resentencing that the defendant did not present the rare case of an “irredeemable” or” incorrigible” juvenile, and therefore did not qualify for an LWOP sentence. The defendant’s evidence at resentencing showed an abusive childhood, early substance abuse, substantial educational and self-improvement while in prison. He also presented expert mental health testimony indicating he was at low-risk to reoffend and evidence of a near-perfect disciplinary record while in prison (among other evidence). The trial court resentenced the defendant to two consecutive terms of life with parole, which meant that the defendant would be parole-eligible after a term of at least 50 years. The defendant appealed, arguing that the sentence amounted to a de facto life sentence in violation of state and federal constitutional protections. The Court of Appeals unanimously agreed.

(1) The defendant’s challenge to his sentence was preserved. He raised Miller, the 8th Amendment, and comparable provisions of the state constitution in his MAR seeking resentencing, and specifically argued for concurrent life with parole sentences. The specific grounds of his objections to the sentence were thus clear from context and at least amounted to “an implied argument” that his sentence violated constitutional protections. Even if the argument was not preserved, the defendant asked the court to invoke Rule 2 of the Rules of Appellate Procedure to consider the argument, and the court found that invocation of the rule was appropriate here to review the constitutional issue.

(2) Conducting an extensive review of the Miller line of cases, the court made three rulings of first impression in the state. (2a) A “clear majority” of jurisdictions have held that a de facto life sentences are reviewable under Miller, and North Carolina joined that majority. To allow Miller protections to be circumvented by labeling a sentence a term of years as opposed to life without parole when the effect of the sentence would preclude a meaningful opportunity for release would render the constitutional protections hollow. “Roper, Graham, and Miller are all concerned with ‘imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.’ A de jure LWOP sentence is certainly as ‘harsh’ as its functional equivalent.” Kelliher Slip op. at 30. (2b) Consecutive sentences that aggregate to create a de facto life sentence for juveniles not otherwise eligible for LWOP violate the constitutional protections for the punishment of juveniles. The court recognized that courts around the country are “sharply divided” on this point. A majority of jurisdictions have determined that consecutive sentences may lead to an impermissible de facto life sentence, and North Carolina again joined that majority. “The applicability and scope of protection found in the Eighth Amendment . . . [turn] on the identity of the defendant, not on the crimes perpetrated.” Id. at 35. The court distinguished North Carolina law from that of other jurisdictions holding otherwise. (2c) The defendant’s sentence to consecutive life with parole terms was unconstitutional. The defendant would become eligible for parole at age 67 under his current sentence. This was long enough to constitute a de facto life sentence. In the words of the court:

To release an individual after their opportunity to directly contribute to society—both through a career and in other respects, like raising a family—does not provide a meaningful opportunity to demonstrate the ‘maturity and rehabilitation’ required to obtain release and reenter society as required by Graham. Id. at 40 (citation omitted) (cleaned up).

The court observed that the defendant would not necessarily be released from prison even after becoming parole eligible. However, to afford the defendant the constitutional protections established by the Miller line of cases, the defendant’s consecutive sentences could not stand. The sentences were therefore vacated, and the trial court was ordered to impose concurrent life with parole sentences on remand.

(1) Sufficiency of evidence argument as to rape was waived on appeal; convictions for rape and first-degree kidnapping did not violate double jeopardy where a separate sexual assault was used to enhance the kidnapping to first-degree; (2) Sufficient evidence supported aggravating factor of occupying a position of trust over victim; (3) Evidence of prior sexual assaults on the sisters of the victim were properly admitted under Rule 404(b); (4) Substitute analyst testimony was properly admitted and did not violate defendant’s confrontation rights; (5a) Rape indictment identifying victim only by her initials was not fatally flawed; (5b) First-degree kidnapping indictment was not defective for failure to specify sexual assault; (6) Jury instructions on aggravating factor were erroneous but not prejudicial and did not constitute plain error; (7) Defendant’s challenge to SBM order was not argued on appeal and was deemed waived

State v. Pabon, ___ N.C. App ___ (Oct. 6, 2020). In this Cabarrus County case, the defendant was convicted of first-degree kidnapping and second-degree rape. After developing a friendship with the victim, he drugged her without her knowledge, took her to a friend’s house and raped her. The defendant appealed, raising numerous challenges.

(1) The defendant argued there was insufficient evidence to support his convictions and that his motion to dismiss should have been granted. He did not raise an argument about the rape conviction on appeal. Any argument as to the sufficiency of evidence for that offense was therefore deemed abandoned and waived. As to the kidnapping conviction, the defendant argued he could not be sentenced for both kidnapping and the rape as a matter of double jeopardy, since the rape was used to elevate the kidnapping to first degree. “The proper remedy in the event of conviction of first-degree kidnapping and the sexual assault that constitutes an element of first-degree kidnapping is to arrest judgement on the first-degree kidnapping and resentence the defendant for second-degree kidnapping.” Slip op. at 10-11 (citation omitted). While the defendant correctly noted this rule, the court found it inapplicable to the defendant’s case. The State’s evidence showed at least two distinct sexual assaults. In addition to the rape, the defendant also committed a separate sexual battery, and that offense was used to elevate the kidnapping offense to first-degree (and not the rape). Following the sexual battery in one room, the defendant moved the victim to another room to commit the rape. This showed separate and distinct offenses. The trial court also correctly instructed the jury on these principles and its instructions required the jury to find a separate and distinct sexual battery in support of the first-degree kidnapping. Because the defendant was not convicted of the underlying sexual battery used to support the first-degree kidnapping, double jeopardy did not preclude separate punishments for the distinct rape and kidnapping.

(2) The was also sufficient evidence to support the aggravating factor that the defendant took advantage of a position of trust to accomplish the crimes. The Court of Appeals noted it “has upheld a finding of the ‘trust or confidence’ factor in very limited factual circumstances.” Id. at 18 (citation omitted). Here, the State presented sufficient evidence of the factor in aggravation. The defendant was a family friend and was close with the victim. Evidence showed the defendant gave the victim’s family Christmas gifts, checked on family members, frequently spent time with the victim and advised her on various matters, among other connections. This was sufficient to demonstrate a position of trust over the victim which the defendant exploited in order to commit the crimes.

(3) The two sisters of the victim testified to prior instances of sexual assault by the defendant towards each of them. The trial court admitted this evidence pursuant to Rule 404(b) of the Rules of Evidence as proof of a common plan or scheme by the defendant. The defendant raped one of the sisters in a nearly identical manner as the victim and committed sexual battery upon the other sister “in a manner indicating an intent to go further.” Id. at 21. Like with the victim, the defendant developed a position of trust with each of the sisters before committing sexual assaults on them. The trial court therefore correctly determined the prior bad acts were substantially similar to the circumstances of the current offense. The assaults occurred 10 and 8 years before the events of the current case. The court agreed with the trial judge that this evidence was not too remote in time to satisfy the requirements of Rule 404(b):

Our Supreme Court has held that ‘[w]hen similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan’ rendering the prior bad acts ‘not too remote to be considered as evidence of defendant’s common scheme to abuse the victim sexually.’ Id. at 22 (citation omitted) (emphasis in original).

The evidence showed the defendant’s acts were continuous over the course of time and therefore not too remote in time to be admitted under Rule 404(b). The trial court also conducted the necessary balancing under Rule 403 of the Rules of Evidence to determine the testimony was not more prejudicial than probative and instructed the jury about the limited purpose of the evidence. The admission of this evidence was therefore not error or an abuse of discretion.

(4) The defendant argued that the admission of toxicology results by way of a substitute analyst violated his Sixth Amendment rights to confrontation. The court disagreed, noting the rule on substitute analyst testimony:

[A]n expert witness may testify as to the testing or analysis conducted by another expert if: (i) that information is reasonably relied on by experts in the field in forming their opinions; and (ii) the testifying expert witness independently reviewed the information and reached his or her own conclusion in this case. Id. at 26 (citation omitted).

The evidence showed that the substitute analyst reviewed the results of the testing done by the non-testifying analysts and formed his own opinion about the results. “Thus, [the analyst’s] opinion was based on his own analysis and not merely surrogate testimony for an otherwise inadmissible lab report . . .” Id. at 31. Under these circumstances, the defendant was not entitled to cross-examine the analysts who actually performed the testing. According to the court, “when an expert gives an opinion, the opinion is the substantive evidence, and the expert is the witness whom the defendant has the right to confront.” Id. Because the expert opinion was properly admitted and the defendant was able to cross-examine that expert, there was no violation of the defendant’s confrontation rights.

(5a) The indictment for second-degree rape identified the victim only by reference to her initials, and the defendant argued this constituted a fatal indictment defect for failure to identify the victim.  He pointed to a recent case holding that “Victim #1” was insufficient to identify the victim. State v. McKoy, 196 N.C. App. 650, 654 (2009), foreclosed this argument. Citing from that case, the court observed:

[W]here the statutes defining second-degree rape and second-degree sexual offense require the offenses to be against ‘another person,’ the indictments charging these offenses do not need to state the victim’s full name, nor do they need to add periods after each letter in initials in order to accomplish the common sense understanding that initials represent a person. Id.

Unlike the situation where the indictment names only a “victim,” the use of initials sufficed to identify the victim and did not constitute a fatal defect. [Jeff Welty blogged about the use of initials in charging documents here.]

(5b) The first-degree kidnapping indictment was also not defective. The defendant claimed a fatal flaw based on the indictment’s failure to identify the specific crime constituting the sexual assault for purposes of first-degree kidnapping. There is no requirement that an indictment for first-degree kidnapping identify the felony used to enhance the offense to first-degree. The indictment was otherwise sufficient to put the defendant on notice and was valid in all respects.

(6) The trial court’s instructions to the jury on the existence of the aggravating factor violated G.S. § 15A-1340.16(d). That statute provides in pertinent part that evidence used at trial to support the existence of an element of the offense may not thereafter be used to prove a factor in aggravation. The jury instructions permitted the jury to consider “all of the evidence,” rather than limiting its consideration to evidence not used to support the intent requirements for the two crimes. The defendant did not object to the instructions at the time and alleged plain error on appeal. Plain error requires that the defendant demonstrate “a reasonable possibility that, had the instruction been given, the jury would have failed to find the existence of the aggravating factor.” Id. at 36. The court noted that occupying a position of trust is not an element of either of the crimes at issue and rejected the contention that the same evidence was used to prove both the intent to commit the crimes and the aggravating factor. The defendant could not demonstrate the possibility of a different result absent the instructions on the aggravating factor, and accordingly could not demonstrate prejudice for plain error.

(7) The defendant’s argument that his objections to an order requiring him to enroll in satellite-based monitoring (“SBM”) were improperly overruled were abandoned on appeal, because the defendant failed to raise any argument for this issue.

A majority of the court determined there was no reversible error in the trial and the convictions were affirmed.

Judge Murphy dissented in part. He wrote separately to note his disagreement with the majority’s analysis of the Confrontation Clause issue. Judge Murphy would have granted a new trial based on the Sixth Amendment violation and would have held the plain error jury instruction issue in (5) above, as well as the SBM issue in (6), were therefore moot. He otherwise concurred in the majority’s judgment.

When SBM enrollment would not occur for at least 30 years, the State could not demonstrate the reasonableness of the search; SBM order reversed

State v. Strudwick, ___ N.C. App. ___ (Oct. 6, 2020). In this Mecklenburg County case, the defendant pled guilty to various sex offenses and was ordered to enroll in satellite-based monitoring (“SBM”) for life, following a contested hearing on that issue. The defendant appealed and the Court of Appeals reversed the order in an unpublished opinion. The State sought review in the North Carolina Supreme Court. That court granted the state’s petition for discretionary review and remanded the matter back to the Court of Appeals in light of State v. Grady, 372 N.C. 509 (2019) (“Grady III”). On remand, the Court of Appeals reached the same conclusion and reversed the trial court’s SBM order.

The defendant was sentenced to at least 30 years in prison for his crimes in this case. While Grady III dealt with recidivists specifically (a category of potential SBM registrants not at issue in this case), the Court of Appeals nonetheless determined that the Grady III analysis was a guidepost. The facts of this case were parallel to those in State v. Gordon, 840 S.E.2d 907 (2020). There, the SBM enrollment and Fourth Amendment search would not take effect until the defendant was released from prison—at least 15 years later. Here, the SBM search would not begin for at least 30 years. As in Gordon, that the defendant will not enroll in SBM for a matter of decades reduced the ability of the State to demonstrate the search is reasonable. Citing Gordon, the court observed that the State “is hampered by a lack of knowledge concerning the unknown future circumstances relevant to that analysis.” Slip op. at 7 (citation omitted). A concurring judge in the original Court of Appeals opinion in Gordon noted that this created “an impossible burden” for the State to meet. The court noted that if the SBM statutes were amended to provide for SBM hearings at the time of a defendant’s release from prison, that burden would be alleviated. “But until we receive further guidance from the Supreme Court or new options for addressing the SBM procedure from the General Assembly, under existing law, we are required to reverse defendant’s SBM order.” Id. at 9.

Judge Tyson dissented. He would have found that Grady III did not require this result and that the majority improperly extended the reach of that case. He would have affirmed the trial court’s SBM order.

(1) Expert testimony of victim’s PTSD diagnosis was properly admitted for corroborative purposes; failure of trial court to give unrequested limiting instruction on the use of that evidence was not plain error; (2) Where the State raised and the court addressed Fourth Amendment concerns during SBM hearing, the issue was preserved for review despite defendant’s lack of constitutional objection; (2a) lifetime SBM order was unreasonable and reversed where defendant would not enroll in the program for at least 50 years; (2b) second SBM order for term of 10 years was reasonable and was affirmed

State v. Thompson, ___ N.C. App. ___ (Oct. 6, 2020). The defendant was convicted at trial of numerous sex offenses against minor children, including statutory sex offense, sexual activity by substitute parent, and sale of controlled substances to minors in Cleveland County. He was sentenced to a minimum of 600 months and ordered to enroll in satellite-based monitoring (“SBM”) for life upon release based on the convictions relating to one victim, with an additional 10 year term of SBM for the other victim. The defendant properly appealed his convictions but failed to give notice of appeal of the SBM orders. In its discretion, the Court of Appeals granted his petition for writ of certiorari to review that issue.

(1) A therapist for one of the minor victims testified as an expert in childhood and teen trauma for the State at trial. She testified that the child had post-traumatic stress disorder (“PTSD”) and major depression and relayed to the jury disclosures by the victim of instances of sexual abuse by the defendant. This testimony was offered for corroborative purposes. The defendant did not object, and no limiting instruction about the testimony was given to the jury. The court therefore reviewed for plain error only. The North Carolina Supreme Court has held that it is improper to admit evidence of a PTSD diagnosis for substantive purposes. See State v. Hall, 330 N.C. 808, 821 (1992). However, such testimony may be admitted to corroborate substantive evidence, to rebut defense evidence of consent, or to explain why disclosure of the crime was delayed. When such evidence is admitted, the trial court should provide a limiting instruction to the jury regarding the use of the testimony. Failure to give the limiting instruction is not error, however, if the defendant fails to request one. Here, the testimony was properly admitted for corroborative purposes. Further, “even if a limiting instruction were required in the absence of a specific request by defendant, defendant was not prejudiced by the omission such that it would amount to fundamental error.” Thompson Slip op. at 8. There was therefore no plain error in the admission of the therapist’s diagnosis of PTSD.

(2) The defendant failed to raise a Fourth Amendment objection during the SBM hearing. However, because the State raised the constitutional issue and it was considered by the trial court in its ruling, the issue was preserved for appellate review. (2a) Here, the defendant’s enrollment in SBM would not occur until at least the expiration of his minimum term of imprisonment, at least 50 years from the time of judgment. As in State v. Gordon, 840 S.E.2d 907 (2020), “it is therefore difficult to assess the reasonableness of subjecting him to SBM given the unknown future circumstances of the program.” Thompson Slip op. at 16. Finding that the State failed to meet its burden to show that the lifetime SBM search was reasonable under the Fourth Amendment, the trial court’s order of lifetime SBM was reversed.

(2b) The second SBM order requiring the defendant to enroll in SBM for a term of 10 years was proper. The evidence supported the finding that the offenses involved the sexual abuse of a minor child, and the trial court properly considered the relationship between the victim and defendant, the offenses, and the age of the victims. The defendant’s risk assessment indicated he was “low-risk,” but the trial judge was free to make its own determination of the defendant’s risk based on the totality of evidence, as it did here. Furthermore, “ten years is not ‘significantly burdensome and lengthy,’ especially given that the defendant will be subject to post-release supervision for half of that time period.” Id. at 20. The trial court committed a mere clerical error in failing to make a finding that the defendant required the highest possible level of supervision. This SBM order was therefore affirmed and remanded for correction of the clerical error.

Judge Berger concurred with the majority opinion as to the criminal judgment and concurred in result with the SBM portion of the opinion, joined by Judge Dietz. These judges would have found that the precedent by which the majority found the defendant’s Fourth Amendment challenge preserved (based on the State’s act of raising the constitutional issue) was inconsistent with the preservation requirements under the Rules of Appellate Procedure. However, given the uncertain and evolving nature of SBM case law in the State, as well as the fact that the SBM order here was issued before Gordon was decided, the concurring judges would have found that the defendant could not have preserved his constitutional arguments [and presumably would have found the issue preserved on that basis, rather than the precedent relied upon by the majority.]

 (1) Rule 702 governs the admission of expert evidence, including experimental evidence, which is reviewed for abuse of discretion (and not de novo, as pre-Rules of Evidence cases held); no abuse of discretion in admitting results of experiment to show pattern of bullet shell ejections; (2) No abuse of discretion to qualify expert to testify in field of bullet shell ejection patterns despite expert’s lack of training or experience in that specific field

State v. Turner, ___ N.C. App. ___ (Oct. 6, 2020). The defendant was convicted of first-degree murder in Person County. The victim was a neighbor with whom the defendant had long-running disputes. According to the defendant, he shot the neighbor in self-defense. The victim was shot 11 or 12 times, with the vast majority of the bullets having entered the victim from the back and side of his body. The State presented evidence from an experiment performed by a forensic firearms examiner attempting to replicate the production of the layout of bullet shell casings found at the scene in order to demonstrate the shooter’s location and to rebut the defendant’s self-defense claim. The expert only reported the results of the experiment and did not specifically opine about the shooter’s location.

(1) Relying on cases pre-dating the adoption of the Rules of Evidence, the defendant argued this evidence was improperly admitted in violation of the “substantial similarity” test. These older cases imposed stricter requirements for the admission of “experimental evidence” – that is, evidence “about an experiment that is used to prove something about the actual events that occurred in the case.” Slip op. at 8. The defendant argued that these rules controlled, rather than Rule of Evidence 702. Under those cases, the standard of review on appeal of this issue would have been de novo, rather than the abuse of discretion standard applied to Rule 702 challenges. The defendant did not argue or cite to Rule 702 or to any cases applying the rule since the 2011 amendments adopting the Daubert standard for expert testimony. Rejecting this argument, the court found that later cases, even those pre-dating the 2011 amendment to Rule 702, had in fact adopted an abuse of discretion standard of review for experimental evidence. The court also rejected the notion that the substantial similarity test stood apart from Rule 702. “The notion of ‘substantial similarity’ for experimental evidence is one of the many ‘particular factors articulated in previous cases’ that is now baked into the third prong of Rule 702’s reliability test.” Id. at 10. Thus, pursuant to Rule 702, the standard of review is abuse of discretion. Even if the defendant’s argument that the evidence was erroneously admitted was not forfeited by his failure to argue Rule 702 or abuse of discretion, the trial court did not err in admitting the testimony. In the words of the court: “Here, the trial court’s determination that the experiment met the Rule 702 criteria was a reasoned one and not manifestly arbitrary. Thus, we cannot hold that the trial court abused its discretion.” Id. at 12.

(2) The defendant also argued that the trial court erred in qualifying the expert to give an opinion about shell ejection patterns. Voir dire of the expert revealed that he had not received training on ejection patterns of bullet shells, that no certification for this subject exists, and that he had not previously performed this type of experiment. According to the court, the trial court did not abuse its discretion in so qualifying the expert: “’[I]t is not necessary that an expert be experienced with the identical subject matter at issue or be a specialist’ as long as ‘the expert witness because of his expertise is in a better position to have an opinion on the subject than is the trier of fact.’” Id. at 14. Based on his extensive training and experience in the field of firearms, the trial court acted within its discretion and did not err in qualifying the expert.

The conviction was therefore unanimously affirmed with Judges Berger and Arrowood concurring.

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