This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on September 5, 2023. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Court applied four-factor analysis to determine two of defendant’s convictions for indecent liberties were actually one continuous transaction.
State v. Calderon, COA22-822, ___ N.C. App. ___ (Sept. 5, 2023). In this Wake County case, defendant appealed his three indecent liberties with a child convictions, arguing his actions represented only one continuous act rather than three separate incidents. The Court of Appeals majority held that the evidence only supported two convictions, not three, and remanded the case so that the trial court could arrest judgment on one of the convictions and resentence defendant accordingly.
In 2019, defendant met the thirteen-year-old victim after a church service at the home where he rented a room in Raleigh. After a second conversation with the victim at a pool party, defendant became friends with her on social media platforms. On July 5, 2019, defendant showed up at the house where the victim lived while her grandmother was away. Testimony about the events after this varied, as the victim testified that defendant forcibly pulled her into his van and made sexual contact with her, while neighbors observed the two inside defendant’s van kissing without any apparent coercion. Defendant testified that the victim messaged him asking him to come over and that she came willingly into his van where they kissed but did not engage in other sexual conduct. After a trial, defendant was convicted of three counts for (1) kissing the victim outside his van, (2) kissing the victim on the mouth inside his van, and (3) a second count of kissing the victim on the mouth inside his van. Defendant was found not guilty of other charges related to sexual conduct with the victim.
Taking up defendant’s appeal, the majority agreed that the evidence did not support three distinct charges of indecent liberties. The court first determined that defendant’s actions represented “touching” not “sexual acts” for purposes of the indecent liberties charges. After establishing the acts were touching, the court considered relevant caselaw on continuous transactions as opposed to separate and distinct acts. Because no North Carolina case was directly on point, the court turned to a Kansas Supreme Court decision, State v. Sellers, 292 Kan. 346 (2011), to adopt a four-factor analysis applicable to “indecent liberties offenses involving multiple, non-sexual acts.” Slip Op. at 18. The four factors are:
(1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.
Id. at 17, quoting Sellers.
Applying the factors to the current case, the court concluded that the acts of kissing outside the van and inside the van were distinct, as they were in different locations and there was an intervening event of getting into defendant’s van before engaging in a second episode of kissing. The same framework led the court to conclude the kissing inside the van was one continuous transaction as the kisses took place close in time and were not separated by any intervening act. This supported arresting judgment on the third conviction, and resentencing defendant accordingly.
Judge Stading concurred in part and dissented in part by separate opinion, concurring with the majority’s adoption of the test from Sellers but dissenting from the conclusion that it called for dismissal of one of the three convictions.
Trial court failed to strictly adhere to plea agreement when imposing a 30-day split sentence not mentioned in the agreement.
State v. Robertson, COA23-24, ___ N.C. App. ___ (Sept. 5, 2023). In this Cabarrus County case, defendant appealed judgment entered on his guilty plea, arguing that the trial court refused to allow him to withdraw his plea after imposing a sentence differing from the plea agreement. The Court of Appeals agreed, vacating the judgment and remanding for further proceedings.
In August of 2022, defendant entered a plea agreement for felony fleeing to elude arrest. The agreement specified that defendant would receive a suspended sentence in the presumptive range. However, at defendant’s plea hearing, the trial court imposed an additional “split sentence of 30 days” in jail as a special condition of probation. Slip Op. at 2. Defense counsel moved to strike the plea, but the trial court denied the motion.
After reviewing the applicable caselaw and statutes, the Court of Appeals held that the trial court erred by failing to strictly adhere to the terms of the plea agreement. Based upon the transcript, it appeared that the trial court felt the addition was permitted because the plea agreement did not mention special conditions related to probation. The court explained:
Our courts have held that strict adherence to plea arrangements means giving the defendant what they bargained for. . . [t]o the extent the terms of the arrangement—including whether the parties had agreed to the imposition of a special condition of probation—were unclear, the trial court should have sought clarification from the parties rather than impose a sentence it decided was appropriate.
Id. at 6-7.