This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on September 17, 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.
Evidence supported defendant’s intent to permanently deprive even though she reimbursed her employer for missing funds after being arrested; defendant’s record level was properly calculated because General Assembly reclassified offense as felony in the same year as the plea.
State v. Evans, COA23-1160, ___ N.C. App. ___ (Sept. 17, 2024). In this Johnston County case, defendant appealed her convictions for three counts of larceny by an employee, arguing error in denying her motion to dismiss for insufficient evidence and calculating her prior record level. The Court of Appeals found no error.
From May 13 -15, 2021, defendant was responsible for making cash deposits from her Dollar General store to the bank. In the store’s deposit log, defendant recorded that deposits were made on each day; she quit her job at the store on May 17. An audit later determined that defendant never made the deposits and stole over $11,000 from the store. A loss prevention officer tried to contact defendant, but could not reach her, and the matter was reported to the local sheriff’s office. Defendant was finally located and served with arrest warrants in September of 2021. After being served with arrest warrants, defendant made deposits into the Dollar General bank account in March and April of 2022, totaling the missing amount. When the matter came for trial, defendant testified that she left the deposit bags containing the missing amount in her car, and assumed her daughter had made the necessary deposits. When asked where she obtained the money to make the deposits in 2022, defendant said that she scraped together the money from working jobs and borrowing from family members, admitting that it was not the same money that had been taken from the store.
The Court of Appeals explained the evidence supported a conclusion that defendant intended to take and deprive Dollar General of the money because defendant “quit her job the day after she falsely indicated that she had deposited Dollar General’s money into its bank account and left town.” Slip Op. at 7. The court rejected defendant’s argument that she did not have an intent to permanently deprive Dollar General of the funds, noting that defendant reimbursed the missing funds only after being arrested for larceny.
Moving to the record level calculation, the court noted that defendant pleaded guilty to misdemeanor possession of methamphetamine in 1999, but the same year the General Assembly reclassified the possession of any amount of methamphetamine as a felony. As a result, defendant’s plea agreement to the apparent misdemeanor was properly classified as a felony under G.S. 15A-1340.14(c), adding two points to her prior record level. The court explained that this did not breach defendant’s plea agreement, as “[s]he ‘bargained’ for a conviction to a lesser degree of possession of methamphetamine, dismissal of the possession of drug paraphernalia charge, and a sentence in accordance with that agreement.” Id. at 10.
Petitioner properly filed to terminate sex offender registration in North Carolina county where he resided before moving to Florida.
In re Goldberg, COA 23-1015, ___ N.C. App. ___ (Sept. 17, 2024). In this Mecklenburg County case, petitioner appealed the dismissal of his petition to terminate his sex offender registration for improper venue. The Court of Appeals agreed, reversing and remanding to the trial court for consideration of the petition.
In 2003, petitioner was convicted of possession of child pornography in South Carolina, where he initially registered as a sex offender. In 2005, he moved to Mecklenburg County and registered as a sex offender in North Carolina. He subsequently moved to Florida, but in November of 2022, he successfully petitioned for removal from the South Carolina sex offender registry. In June of 2022, he filed his petition in Mecklenburg County, as this was the place he last resided in North Carolina. At the hearing, the State argued the trial court did not have jurisdiction under G.S. 14-208.12A as the statute requires a petitioner to file “in the district where the person resides” and petitioner resided in Florida. Slip Op. at 2. The trial court concluded that the venue was improper and dismissed the petition.
The Court of Appeals first turned to the text of the statute, noting that G.S. 14-208.12A “expressly assigns the proper district for filing a petition for (1) those with in-state convictions (the district of conviction) and (2) those with out-of-state convictions who reside in North Carolina (their district of residence).” Id. at 4. The court disagreed with the State’s contention that “filing the Petition in Mecklenburg was improper because there is no district in which it can be properly filed.” Id. at 6. Because the statute does not provide an alternative procedure for registered offenders who move out of state, “for purposes of the North Carolina Sex Offender Registry, Petitioner’s residency in North Carolina remains in Mecklenburg County.” Id. at 8. This led the court to conclude venue in Mecklenburg County was proper and the trial court erred by dismissing the petition.
Trial Court properly assessed credibility of witnesses in 1999 trial and weighed mitigating factors when conducting life without parole resentencing hearing.
State v. McCord, COA23-915, ___ N.C. App. ___ (Sept. 17, 2024). In this Cleveland County case, defendant appealed the result of his resentencing hearing for life without parole and the denial of his constitutional challenges to his sentence. The Court of Appeals affirmed the trial court’s orders.
In 1999, defendant received a sentence of life without parole for a murder committed when he was 16 years old. Subsequently, the U.S. Supreme Court decided Miller v. Alabama, 567 U.S. 460 (2012), holding that mandatory life without parole sentences for defendants under age 18 were unconstitutional, and Montgomery v. Louisiana, 577 U.S. 190 (2016), holding that Miller v. Alabama was retroactive. The General Assembly adopted G.S. 15A-1340.19A, referred to by the court as “the Miller statute,” to require a resentencing hearing for every defendant convicted of first-degree murder committed while under 18 and with a sentence of life without parole. Slip Op. at 2. Defendant’s Miller resentencing hearing in 2020 gave rise to the current case.
The Court of Appeals considered three arguments from defendant. First, defendant argued that the resentencing judge erred when he “impermissibly assessed the credibility of witnesses who testified during the 1999 trial, where he was not the presiding judge at that trial.” Id. at 3. The court disagreed, pointing to the language of the Miller statute as well as general practice allowing substitution of new judges during criminal trials. The court concluded “the judge thoroughly reviewed the record and could appropriately assess the credibility of the two co-defendants who testified against Defendant at the 1999 trial.” Id. at 6.
Defendant next argued that the trial court improperly weighed several mitigating factors: “(1) age, (2) immaturity, (3) reduced ability to appreciate risks and consequences, (4) family and peer pressure exerted upon the defendant, and (5) the defendant’s likelihood to benefit from rehabilitation.” Id. at 7. The court walked through the analysis for each factor, concluding the trial court did not abuse its discretion when considering the mitigating factors.
Finally, the court reached defendant’s constitutional arguments that (1) the Miller statute was unconstitutional as it contained a presumption in favor of life without parole and lacks guidance for resentencing, and (2) that life without parole sentences for juvenile offenders is unconstitutional under the Eighth Amendment and North Carolina constitution. The court rejected both arguments, noting for (1) that State v. James, 371 N.C. 77 (2018), upheld the constitutionality of the Miller statute, and for (2) that State v. Conner, 381 N.C. 643 (2022), and State v. Kelliher, 381 N.C. 558 (2022), upheld the constitutionality of life without parole sentences. Slip Op. at 10.
Trial court properly admitted Rule 404(b) evidence related to past sexual abuse of another minor.
State v. Nova, COA23-883, ___ N.C. App. ___ (Sept. 17, 2024). In this Gaston County case, defendant appealed his conviction for taking indecent liberties with a child, arguing error in admitting testimony under Rule of Evidence 404(b) that was dissimilar to the crime charged and unfairly prejudicial. The Court of Appeals found no error.
In 2014, defendant fondled a youth member of his church during a worship practice. The minor victim initially reported the abuse to a youth leader at the church, and then learned that defendant had abused another minor in the church. At that point, the victim reported defendant to law enforcement. Before trial, the State moved to introduce evidence of the other youth member abused by defendant under Rule 404(b). The trial court granted the motion, reasoning that the previous abuse was sufficiently similar to the current case and the temporal proximity was “not so remote that it would render the evidence inadmissible in the present case.” Slip Op. at 3.
Taking up defendant’s argument, the Court of Appeals first looked to State v. Beckelheimer, 366 N.C. 127 (2012), for the similarity and temporal requirements applicable to Rule 404(b) evidence. The court concluded that the evidence here met those standards, as the two victims were both young boys of similar in age at the time of the acts, and defendant met and formed his relationships with both through the church. When considering proximity, the court noted “[h]ere, the modus operandi of the crime being tried is not only strikingly similar to [the other victim’s] testimony, but also occurred only two years earlier.” Slip Op. at 11. Having determined the evidence was admissible under Rule 404(b), the court then moved to the Rule of Evidence 403 balancing test, determining that the trial court conducted a fair evaluation of the possible prejudice and provided a limiting instruction to “curtail[] the risk of unfair prejudice.” Id. at 13.
Sheriff submitting false documentation to maintain law enforcement certification did not support obtaining property by false pretenses convictions; indictment for obstruction of justice was invalid because it did not allege the wrongful acts were done to subvert a potential investigation or legal proceeding.
State v. Wilkins, COA 23-839, ___ N.C. App. ___ (Sept. 17, 2024). In this Wake County case, defendant appealed his convictions for six counts of obtaining property by false pretenses and six counts of felony obstruction of justice, arguing error in denying his motions to dismiss the charges. The Court of Appeals agreed, reversing the denial of the motion to dismiss the obtaining property by false pretenses charges, and vacating the convictions for obstruction of justice.
Defendant was elected Granville County Sheriff in 2010, and between the years of 2013 and 2019, defendant reported that he had completed voluntary in-service training and firearm qualification classes. However, a 2019 investigation determined that defendant’s signatures on training class rosters were falsified. At trial, defendant admitted he did not complete the required trainings and submitted false records, testifying “he submitted the false records for ‘a personal reason’ and that he ‘wanted to get credit for it.’” Slip Op. at 3.
The Court of Appeals first considered the obtaining property by false pretenses convictions, noting defendant’s argument that he did not submit the false records in an attempt to obtain a thing of value from another, an essential element of the charge. Instead, defendant argued “that he did not obtain anything because of his misrepresentation but only maintained possession of a certification obtained prior.” Id. at 5. The court considered whether renewal of his certification represented “obtaining property” for purposes of the applicable statute, concluding “that renewing a previously acquired law enforcement certification does not constitute obtaining property.” Id. at 6. Because defendant did not attempt to obtain property, the trial court erred by denying his motion to dismiss, and the court reversed.
Moving to the obstruction of justice charges, the court explained that it did not reach the sufficiency of the evidence issue for these charges because the indictments were facially invalid. The court looked back to State v. Coffey, 898 S.E.2d 359, 364, disc. review denied 901 S.E.2d 796 (2024), where the defendant in that case certified the current defendant’s falsified attendance and firearms records. Considering the indictment, the court held that “[i]t does not allege that [defendant’s] wrongful acts were done to subvert a potential investigation or legal proceeding . . . [t]he indictment therefore fails entirely to charge Defendant with a criminal offense.” Slip Op. at 11. Because the indictment failed to charge defendant with a criminal offense, the trial court lacked jurisdiction, and the court vacated the convictions.