This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on September 20, 2022. This summary will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Pennsylvania statutory sexual assault offense was substantially similar to North Carolina statutory rape offense for purposes of registration as sex offender under N.C.G.S. § 14-208.7(a).
In re: Pellicciotti, 2022-NCCOA-624, ___ N.C. App. ___ (Sept. 20, 2022). In this Durham County case, defendant appealed an order requiring him to register as a sex offender after his relocation to North Carolina. Defendant argued that his offense was not substantially similar to the reportable offense under North Carolina law; the Court of Appeals disagreed and affirmed the order.
Defendant pleaded guilty to the Pennsylvania offense of second-degree statutory sexual assault in 2011. After relocating to Durham County in 2020, the Durham County Sheriff’s Office informed him that he was required to register as a sex offender as required by N.C.G.S. § 14-208.7(a). Defendant filed a petition contesting the registration and the petition was set for hearing in February of 2021. At the hearing, the trial court determined that defendant’s conviction was substantially similar to N.C.G.S. § 14-27.25(a), statutory rape of a person 15 years or younger.
The Court of Appeals looked at the language of the Pennsylvania statute in effect when defendant pleaded guilty, and examined each element of the offense along with the corresponding portion of the North Carolina statute. The court noted that the type of intercourse required and the age requirement for offenders varied between the two statutes, but looked to State v. Graham, 379 N.C. 75 (2021), and related precedent to determine these minor variations did not push the offenses beyond substantial similarity. Slip Op. at ¶18. The court also concluded that the rule of lenity was not applicable in the present case, as the statute was not ambiguous and the framework for comparison was well established. Slip Op. at ¶25.
Defendant’s malicious and willful act of arson justified a conviction for felonious cruelty to animals when the house fire set by defendant caused the death of a puppy in the house.
State v. Charles, 2022-NCCOA-628, ___ N.C. App. ___ (Sept. 20, 2022). In this Cumberland County case, defendant appealed after being convicted of second-degree arson and felonious cruelty to animals. The Court of Appeals found no error with the trial court.
In July of 2020, defendant lived in and around Fayetteville in a van with his sister. Defendant frequently spent time with his sister and her boyfriend, who had a residence in Fayetteville. After a confrontation between defendant and the sister’s boyfriend, defendant went to the boyfriend’s house and set fire to the residence; the fire also killed the boyfriend’s puppy which was inside the house, leading to defendant’s convictions for arson and animal cruelty.
On appeal, defendant first argued that the jury instruction including the doctrine of transferred intent regarding the animal cruelty charge was error. The Court of Appeals declined to determine whether transferred intent was applicable in the case, because the plain language of N.C.G.S. § 14-360 (cruelty to animals) supported the instruction to the jury. Regarding the elements of felonious cruelty to animals, the court pointed out that “one who merely acts maliciously is guilty of felonious cruelty to animals under the statute if that act ‘cause[s] . . . to be . . . killed, any animal.’” Slip Op. at ¶19. Because defendant was convicted of second-degree arson, a crime requiring malicious intent, “[i]t is enough to prove that the defendant acted maliciously and that the act proximately caused the death of an animal. Id.
Defendant also argued that the trial court’s denial of his motion to dismiss was error as he was not aware there was an animal inside the house; again, the court disagreed. Referencing the jury instruction discussion above, the court explained that defendant’s lack of knowledge regarding the puppy was irrelevant. Instead, “it was sufficient for the State to show that [d]efendant intentionally and maliciously started the fire which proximately resulted in the animal’s death.” Slip Op. at ¶22.
Finally, defendant argued that the indictment was deficient as it lacked the elements of “maliciously” and “intentionally” from the charge of felonious cruelty to animals. The court noted that indictments are not subject to rigid rules of construction; while the indictment must adequately allege each element of the charge, it may do so in the words of the statute or similar language. Slip Op. at ¶25. Here, the “maliciously” element of the charge was included in the accompanying second-degree arson charge, which stated defendant “unlawfully, willfully and feloniously did maliciously burn the dwelling.” Slip Op. at ¶27. The “intentionally” element was included as “willfully” in the animal cruelty charge, as the court noted that “’willfully’ adequately expresses that the offense requires an intentional act.” Slip Op. at ¶28.
Defendant threatening a police dog with a knife and homemade spear represented willful attempt to cause serious harm, not self-defense.
State v. Pierce, 2022-NCCOA-631, ___ N.C. App. ___ (Sept. 20, 2022). In this Randolph County case, defendant appealed a conviction for attempting to cause serious harm to a law enforcement animal, arguing the trial court committed error when it declined to instruct the jury on (1) a lesser-included offense, (2) self-defense, and (3) willfulness. The Court of Appeals disagreed, finding no error by the trial court.
The Archdale Police Department responded to a call that defendant was drunk, locked in his bedroom, and threatening self-harm in September 2018. When police responded, defendant was locked in his room and had a knife and a homemade spear, which consisted of a knife attached to the end of a level. Defendant refused to come out of the bedroom and said police would have to kill him if they entered. Officers used a police dog named Storm to subdue defendant; while the dog was in defendant’s bedroom, defendant initially thrust the spear towards the dog, and also raised the hand holding the knife. The dog bit defendant’s arm and he dropped the knife, leading to officers taking defendant into custody.
Reviewing defendant’s first argument, the Court of Appeals noted that the trial court refused defendant’s request for the lesser-included offense of attempting to harm a law enforcement animal, and the only distinction between the two offenses is the gravity of harm involved. Applying the definition of “serious harm” in N.C.G.S. § 14-163.1(a)(4), the court concluded that defendant communicated and intended serious harm to the police dog justifying the denial of his request for the lesser-included charge. Although defendant argued he was acting in self-defense, the court found “[d]efendant’s purportedly defensive actions do not negate or conflict with the evidence that he intended serious harm—through verbal threats of death and wielding a makeshift spear and knife against Storm.” Slip Op. at ¶16.
Regarding defendant’s request for an instruction on self-defense, this defense is typically not available when the actions were taken against a law enforcement officer. Defendant argued that the officers were not acting in furtherance of their official duties because defendant was not committing a crime in his bedroom. The court explained that “official duties” for law enforcement is more expansive than simply investigating crime. Regarding defendant’s situation, the court pointed out that “[d]efendant does not cite, and we cannot find, any North Carolina caselaw where a police response to a domestic disturbance or an emergency call involving threats of self-harm was deemed outside law enforcements’ official duties.” Slip Op. at ¶20.
Examining defendant’s final argument, that “willfulness” was not included in the jury instruction for the charge, the court first noted that the trial court followed the pattern jury instructions. The court then explained that defendant could not show prejudice rising to plain error, as the evidence admitted “unequivocally shows that [d]efendant acted willfully,” making it improbable that the jury would have reached a different conclusion with the willfulness instruction. Slip Op. at ¶25.
Trial court’s order to shackle defendant under N.C.G.S. § 15A-1031 did not cause prejudice justifying a new trial.
State v. Slaughter, 2022-NCCOA-632, ___ N.C. App. ___ (Sept. 20, 2022). In this Cherokee County case, defendant appealed his conviction for assault with a deadly weapon with intent to kill inflicting serious injury, arguing the trial court abused its discretion when ordering him to be shackled at trial, and erred by failing to hold an evidentiary hearing on his motion for appropriate relief (MAR). The Court of Appeals found no error and dismissed the MAR.
Defendant struck an individual with a knife in 2017, and went to trial for attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury in March of 2021. Because of statements that defendant made to those assisting him getting to and from the courtroom, the trial court ordered that defendant be shackled in a manner that was not visible to the jury. Defendant was subsequently convicted of assault with a deadly weapon but the jury did not reach a unanimous verdict on the attempted murder charge. After sentencing, defendant filed an MAR requesting dismissal of the assault charge, or in the alternative a new trial; the trial court denied the MAR without a hearing.
Reviewing the decision to have defendant shackled at trial, the Court of Appeals explained that N.C.G.S. § 15A-1031 provided the authorization necessary to order a defendant shackled, a decision that must be made under the framework provided by that statute. Slip Op. at ¶9. The court first noted that defendant and his counsel never objected to the shackling of defendant, but even assuming the objection, the court could find no prejudice. Although the trial court did not instruct the jury regarding the shackles, the court explained that “[d]efendant has not pointed to anything in the record that indicates the jury ‘was affected by, or even aware of [defendant’s] restraint,’” suggesting the risk for prejudice was negligible. Slip Op. at ¶12, quoting State v. Simpson, 153 N.C. App. 807, 809 (2002).
Regarding defendant’s MAR, the court refused to review the motion as notice of appeal was not timely filed. The North Carolina Rules of Appellate Procedure require notice of appeal within 14 days of a ruling on an MAR. Because the record did not contain a notice of appeal, the court found no jurisdiction to review the MAR.
Defendant’s actions towards law enforcement officer were willful resistance, delay, or obstruction of official duties, not mere criticism; once defendant waived counsel in district court, his waiver was effective at subsequent proceedings even though he did not sign a second waiver in superior court.
State v. Harper, 2022-NCCOA-630, ___ N.C. App. ___ (Sept. 20, 2022). In this Pitt County case, defendant appealed his conviction for willingly resisting, delaying, or obstructing a public officer; the Court of Appeals found no error by the trial court.
In September of 2019, two officers from the Winterville Police Department responded to a disturbance at a gas station. Defendant was allegedly arguing with another customer about police practices and race relations in the United States. When police arrived, defendant initially refused to provide identification, then produced a card with his name and a quotation from City of Houston v. Hill, 482 U.S. 451 (1987). After an extended exchange regarding the card and defendant’s refusal to produce identification, officers arrested defendant for resisting, delaying, or obstructing a public officer. Later in 2019, defendant appeared at two traffic stops conducted by one of the arresting officers, once telling the officer he was watching him, and the second time driving by while making a hand gesture resembling a gun pointed at the officer. Defendant was subsequently charged for communicating threats, and both charges went to trial, where defendant was convicted of resisting, delaying or obstructing an officer but acquitted of communicating threats.
Defendant first argued that the trial court erred by denying his motion to dismiss the resisting, delaying or obstructing an officer charge. The Court of Appeals reviewed the denial and the evidence in the record to determine if each element of the charge was present. In this case only three elements were at issue, specifically if: (1) the officer was lawfully discharging a duty, (2) the defendant resisted, delayed, or obstructed the officer in discharge of that duty, and (3) the defendant acted willfully and unlawfully. Examining (1), the court walked through the reasonable suspicion the officer formed while approaching defendant, and explained that responding to the disturbance and attempting to identify defendant was well within the officer’s duties. Turning to (2), the court made the distinction between mere criticism of the police and the actions of defendant, who was at that time a reasonable suspect in the disturbance that the officers were investigating, and applied precent that “failure by an individual to provide personal identifying information during a lawful stop constitutes resistance, delay, or obstruction within the meaning of N.C. Gen. Stat. § 14-223.” Slip Op. at ¶31. Finally, considering (3), the court explained that since the stop was lawful and the officers were reasonably investigating defendant as the subject of the disturbance, his actions refusing to provide identification and cooperate were willful and intended to hinder the duty of the officer. Slip Op. at ¶40.
The court then turned to defendant’s argument that the trial court erred by allowing defendant to waive counsel and represent himself in superior court after signing a waiver of counsel in district court. The Court of Appeals explained that N.C.G.S. § 15A-1242 contains the required colloquy for wavier of counsel and the appropriate procedure for the court to follow. Here defendant executed a waiver during district court proceedings, and the record contains no objection or request to withdraw the waiver. The court explained that “[o]nce the initial waiver of counsel was executed, it was not necessary for successive written waivers to be executed, nor for additional inquiries to be made by the district or superior court pursuant to N.C. Gen. Stat. § 15A-1242.” Slip Op. at ¶49. The waiver created a “rebuttable presumption” and no further inquiries were necessary. Since defendant did not identify any issue or deficiency in the initial waiver, there was no error.
Reviewing defendant’s final argument that the trial court erred by failing to provide a jury instruction on justification or excuse for the offense, the court noted that defendant did not object to the jury instructions even when given opportunity to do so. Defendant also had agreed to the jury instructions as presented to him. This led to the court’s conclusion that “[b]y failing to object at trial and expressly agreeing to the jury instructions as given, [d]efendant waived any right to appeal this issue.” Slip Op. at ¶57.
Judge Inman concurred in the result.
Admitting testimony from State’s expert that exhibit was “in his opinion” cocaine was not plain error; trial court improperly considered a joined conviction as a prior conviction when applying N.C.G.S. § 90-96(a).
State v. Campbell, 2022-NCCOA-627, ___ N.C. App. ___ (Sept. 20, 2022). In this Mecklenburg County case, defendant appealed his convictions for possession and sale of cocaine. Defendant argued that the trial court erred by (1) admitting testimony from State’s expert that in his opinion, the State’s exhibit was cocaine, (2) in instructing the jury regarding actual and constructive possession, and (3) failing to conditionally discharge the defendant due to his lack of prior convictions. The Court of Appeals found no error with (1) and (2), but remanded to the trial court for resentencing because defendant was eligible for conditional discharge.
In 2018 a confidential informant told an officer of the Charlotte-Mecklenburg Police Department that defendant was selling cocaine in the Charlotte area. Officers opened an investigation and set up a purchase of cocaine from defendant. In February of 2018, an officer purchased what appeared to be cocaine from defendant. After testing the substance, police arrested defendant and he was indicted on charges related to trafficking and sale of cocaine.
Reviewing defendant’s first issue on appeal, the court applied a plain error standard because defendant did not object to the expert’s opinion at trial. At trial the expert witness did not testify about the methodology of his “chemical analysis,” but did state that in his opinion, the substance in question was cocaine. Slip Op. at ¶11. Defendant argued that this did not meet the reliability test under by Rule of Evidence 702(a). Examining applicable precedent, the court explained “even assuming . . . that it was error for the trial court to allow [State’s expert] to testify that, in his opinion, the substance he tested was cocaine, the error did not amount to plain error because [State’s expert] testified that he performed a chemical analysis and testified to the results of that chemical analysis.” Slip Op. at ¶14, citing State v. Sasek, 271 N.C. App. 568 (2020).
Turning next to defendant’s argument about constructive possession, the court explained that even if the theory of constructive possession was not justified by the evidence admitted, overwhelming evidence in the record supported that defendant had actual possession of the cocaine. The court noted that “[t]he evidence of [d]efendant’s actual possession of the cocaine was sufficient to support [d]efendant’s convictions,” meaning defendant could not show plain error even if the instruction was an error by the trial court. Slip Op. at ¶17.
The court found merit in defendant’s final argument regarding conditional discharge, justifying a remand to the trial court for resentencing. Discussing the applicable statute, the court explained “according to the language of N.C.G.S. § 90-96(a), a trial court must place an eligible defendant under a conditional discharge, unless the trial court determines with a written finding . . . that the offender is inappropriate for a conditional discharge for factors related to the offense.” Slip Op. at ¶21. Here, the State argued that defendant’s “same-day conviction” for sale of cocaine made him ineligible for conditional discharge. Slip Op. at ¶22. The question of what “previously been convicted of” means for purposes of N.C.G.S. § 90-96(a) is not defined by statute. The court examined similar statutes and applicable precedent, arriving at the reasoning in a similar situation from State v. West, 180 N.C. App. 664 (2006), that joined convictions should not be considered as a prior conviction when applying N.C.G.S. § 90-96(a). Slip Op. at ¶29. Because N.C.G.S. § 90-96 calls for an opportunity to discuss defendant’s suitability for conditional discharge, and this was not done in defendant’s sentencing, the court vacated the conviction and remanded for a new resentencing hearing.
Defendant’s use of a fake name when being admitted to a hospital did not represent an attempt to use identifying information of another person for purposes of an identity theft charge.
State v. Faucette, 2022-NCCOA-629, ___ N.C. App. ___ (Sept. 20, 2022). In this New Hanover County case, defendant appealed his conviction for identity theft, challenging the denial of his motion to dismiss for insufficient evidence. Notably, the State conceded that “there was insufficient evidence presented at trial showing that [d]efendant knowingly used identifying information of another person living or dead within the meaning of the identity theft statute.” Slip Op. at ¶1. The Court of Appeals agreed with the parties and found that the trial court erred by denying defendant’s motion to dismiss, vacating defendant’s conviction.
In November of 2018, defendant was at a trailer where he was formerly a tenant, causing a disturbance. The owner of the trailer asked a friend to check on the situation at the trailer, which resulted in the owner’s friend confronting defendant and telling him to leave. Defendant struck the other man with a machete in the head multiple times. After this encounter, defendant went to a local hospital and gave a fake name (“David Bostic”) and birth date to avoid being arrested for a failure to appear warrant. Defendant was subsequently recognized by a police officer and arrested, admitting to the officer he went into the hospital under a fake name. In February of 2019, defendant was indicted for assault with a deadly weapon inflicting serious injury and identity theft. At trial, the State admitted the wrist band from the hospital with a fake name, and called a man from a neighboring county named David Bostic (who did not have the same birthdate) to testify that he did not know defendant and did not give defendant permission to use his identity.
Reviewing the denial of the motion to dismiss de novo, the court laid out the relevant element of identity theft from N.C.G.S. § 14-113.20, explaining “identity theft exists when “[a] person . . . knowingly obtains, possesses, or uses identifying information of another person, living or dead, with the intent to fraudulently represent that the person is the other person . . . for the purpose of avoiding legal consequences.” Slip Op. at ¶12. Applicable precedent supports that a person’s name, date of birth, and address may be identifying information; however, in this case defendant did not use the name and birth date with the intent to represent himself as any real person named David Bostic. The court noted that no evidence connected the name and birth date used by defendant with any person identified by the State, and the birth date given was not that of the David Bostic the State found to testify in this matter. Explaining its conclusion, the court found “[t]here was insufficient evidence at trial to show that [d]efendant intended to fraudulently represent he was the David Bostic who testified at trial or that [d]efendant used the identifying information of any other actual person, living or dead.” Slip Op. at ¶16.