Case Summaries – N.C. Court of Appeals (Sept. 6, 2022)

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on September 6, 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.

Trial court had continued jurisdiction over SBM order and statutory authority to impose SBM for unsupervised recidivist convicted of an offense involving the physical, mental, or sexual abuse of a minor.

State v. Cheers, 2022-NCCOA-597, ___ N.C. App. ___ (Sept. 6, 2022). In this Brunswick County case, defendant appealed an order vacating lifetime satellite-based monitoring (SBM) and imposing a 30-year term of SBM. Defendant argued (1) trial court lacked subject matter jurisdiction to impose SBM upon him; (2) trial court did not have statutory authority to impose a term of years based on his classification as a “recidivist;” and (3) the trial court erred in determining defendant required the highest level of supervision applicable under the statute. The Court of Appeals disagreed and affirmed the order of the trial court.

Defendant was convicted of four counts of indecent liberties with a child in 1994. Subsequently defendant pleaded guilty to two counts of indecent liberties with a child in 2008 and received lifetime SBM. The court’s form order found that defendant “is classified as a sexually violent predator, is a recidivist, or was convicted of an aggravated offense,” but did not clarify which of these grounds justified the lifetime SBM. Slip Op. at ¶2. After the holding in State v. Grady (Grady III), 327 N.C. 509 (2019), prosecutors advised defendant that he was entitled to a hearing on the unconstitutional nature of his lifetime SBM, and defendant filed a motion for appropriate relief. Defendant’s motion was heard in January of 2021; the trial court found that defendant required the highest level of supervision, vacated the lifetime SBM and imposed a 30-year term, retroactive to the start of defendant’s monitoring in 2010.

Considering defendant’s first argument, the Court of Appeals found that the trial court had subject matter jurisdiction to conduct the January 2021 hearing and enter the new order imposing SBM. Although defendant pointed to State v. Billings, 278 N.C. App. 267 (2021) to support the trial court’s lack of jurisdiction, the Court of Appeals explained that the Billings fact pattern was not present in the current case, as “[d]efendant’s own motion properly brought the matter before the trial court.” Slip Op. at ¶9. Instead, the court applied State v. Hilton, 378 N.C. 692 (2021) and State v. Strudwick, 379 N.C. 94 (2021), holding that “the trial court had continued jurisdiction over the original 2008 SBM order and could modify it pursuant to [d]efendant’s motion.” Slip Op. at ¶12.

Reviewing defendant’s argument that the trial court lacked statutory authority to impose SBM, the court held that “[d]efendant’s reading of our statutes conflicts with precedent defining the Legislature’s intent.” Slip Op. at ¶14. The core of defendant’s argument came from the text of N.C.G.S. § 14-208.40A(d) in effect at the time of the 2021 hearing, specifically the following:

If the court finds that the offender committed an offense that involved the physical, mental, or sexual abuse of a minor, that the offense is not an aggravated offense or a violation of G.S. 14-27.23 or G.S. 14-27.28 and the offender is not a recidivist[. . . .]

Slip Op. at ¶18. As explained by the court, “[i]n holding our SBM statutes were unconstitutional as applied to unsupervised, recidivist offenders in Grady III, our Supreme Court created a loophole for individuals in Defendant’s position, as an unsupervised recidivist convicted of an offense involving the physical, mental, or sexual abuse of a minor.” Slip Op. at 21. The court rejected defendant’s reading of the applicable statute, as it “would lead to absurd results, contrary to the intent of the General Assembly in identifying specific categories of sex offenders subject to monitoring.” Slip Op. at 19. Instead, the court construed the applicable provisions along with the entire SBM statute classifying offenders, and applied Hilton and Strudwick to support the application of SBM for offenders like defendant. Slip Op. at 21. The court also noted that just months after the 2021 hearing, the General Assembly amended N.C.G.S. § 14-208.40A(d)-(e) to resolve the issue. Summarizing defendant’s situation, the court explained that the amendments to North Carolina’s SBM program created a ten-year cap on the term of SBM enrollment and a procedure for petitioning the trial court to end SBM, meaning that “since [d]efendant has been enrolled in SBM for more than ten years, he can obtain a court order terminating that enrollment today.” Slip Op. at ¶23.

Finally, the court examined defendant’s argument that the trial court misapplied his risk assessment when determining he required the highest level of supervision. The court explained that, even if it misapplied or misinterpreted the risk assessment tool, the “trial court made sufficient findings to support its determination that [d]efendant required the ‘highest possible level of supervision and monitoring’ for a term of 30 years.” Slip Op. at ¶28.

Defendants’ “tug of war” over child represented substantial risk of physical injury; trial court reasonably exercised discretion when denying motion to reopen voir dire; trial court erred by requiring defendant to complete co-parenting classes while appeal was pending.

State v. Adams, 2022-NCCOA-596, ___ N.C. App. ___ (Sept. 6, 2022). In this Yadkin County case, two defendants, Defendant A and Defendant P, appealed their convictions for misdemeanor child abuse. Both defendants appealed trial court’s (1) denial of their motion to dismiss at the close of evidence and (2) denial of their motion to reopen voir dire of a juror for bias; Defendant A also appealed trial court’s imposition of conditions of probation while the appeal was pending. The Court of Appeals found no error with the denial of motions, but did find error in imposing conditions of probation while an appeal was pending.

Defendants’ convictions arose from a 2018 incident in the parking lot of the Yadkin County Sheriff’s Office. An officer from the Yadkinville Police Department, located across the street, walked out of the police department to head home when he heard a commotion across the street, and observed Defendant A pulling on something in the back seat of a car. When the officer approached, he observed Defendant A and Defendant P were having a “tug of war” over their child in the back seat of a car; both defendants were tried and eventually convicted of misdemeanor child abuse in 2021.

The court first considered the motion to dismiss, reviewing whether substantial evidence of each element of child abuse under N.C.G.S. § 14-318.2 was present in the record. Because there was no dispute that the defendants were the parents of the child in question, and that the child was less than 16 years old, the only element in dispute was whether defendants “created or allowed to be created a substantial risk of physical injury” for the child. Slip Op. at ¶11, quoting State v. Watkins, 247 N.C. App. 391 (2019). The court noted the “paucity” of caselaw, observing that Watkins appears to be the only reported case on the “substantial risk” theory under N.C.G.S. § 14-318.2. Slip Op. at ¶13. However, after exploring Watkins and unreported caselaw, the court explained that even a brief period of time placing the child at risk of physical harm could represent “substantial risk,” justifying the jury’s consideration of the question. After examining the evidence against both defendants, the court found no error with the trial court.

Examining the motion to reopen voir dire, the court explained that N.C.G.S. § 15A-1214(g) granted substantial leeway to the trial court when conducting an inquiry into possible juror bias. Here, the trial court directly questioned the juror during a period spanning two days, allowing the juror to consider the instructions overnight. Slip Op. at ¶30. Additionally, the trial court permitted arguments from counsel on both days of questioning the juror. The Court of Appeals found the trial court did not abuse its discretion in refusing to reopen voir dire in these circumstances.

The Court of Appeals did find error when the trial court ordered Defendant A to enroll and complete co-parenting classes while the appeal in this matter was pending. Slip Op. at ¶34. Under N.C.G.S. § 15A-1451(a)(4), a defendant’s notice of appeal stays probation, meaning trial court’s imposition of the co-parenting condition was error. As a result, the court remanded for resentencing Defendant A only.

Horse’s name represented surplus language in indictment that could be removed; prosecutor’s recitation of caselaw during closing argument was not gross impropriety and did not justify new trial.

State v. Lawson, 2022-NCCOA-598, ___ N.C. App. ___ (Sept. 6, 2022). In this Durham County case, defendant appealed his conviction for felony animal cruelty, arguing that (1) the removal of the name of a horse from the indictment rendered it invalid, and (2) the prosecutor’s recitation of caselaw during closing argument represented gross impropriety. The Court of Appeals found no error and affirmed the conviction.

In July of 2016, Durham County Animal Services responded to a report of several deceased horses on the property where defendant kept his horses. On the scene, Animal Services discovered the skeletal remains of three horses and one still-living horse, a chestnut mare, in severely emaciated condition. This horse was initially identified as “Diamond” in the indictment, but the prosecution successfully moved to strike the name from the indictment prior to trial. Defendant was found guilty of felony animal cruelty under N.C.G.S. § 14-360(b) in January 2021.

Reviewing defendant’s first argument on appeal, the Court of Appeals noted that under N.C.G.S. § 15A-923(e) an indictment may not be amended, but “surplus language which ‘in no way change[s] the nature or the degree of the offense charged’ may be stricken from an indictment.” Slip Op. at ¶20, quoting State v. Peele, 16 N.C. App. 227 (1972). The court explained that under N.C.G.S. § 14-360(b), the name of an animal is not considered an essential element of the crime, and applicable precedent established that it was acceptable to identify animals by general descriptions in indictments. Slip Op. at ¶24, citing State v. Credle, 91 N.C. 640 (1884). Because there was only one horse at issue in this case, and striking its name “Diamond” caused no confusion or difficulty for defendant when presenting his defense, the court found no error in striking the horse’s name from the indictment.

The court next considered the prosecutor’s recitation of case law during closing argument. Noting that defense counsel did not object during trial, the court explained that defendant must show the remarks were “so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu,” a heightened standard of review. Slip Op. at ¶27, quoting State v. Jones, 355 N.C. 117 (2002). The court emphasized that “the prosecutor’s statements must have been so improper that they ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” Slip Op. at ¶29, quoting Darden v. Wainwright, 477 U.S. 168 (1983). Based upon this high standard for relief, and the substantial evidence admitted at trial supporting defendant’s conviction, the court could not establish that defendant was deprived of a fair trial.

Defendant was not entitled to laboratory’s audit, non-conformity, and corrective-action records under N.C.G.S. § 15A-903

State v. See, 2022-NCCOA-599, ___ N.C. App. ___ (Sept. 6, 2022). In this Wake County case, defendant appealed her convictions of driving while impaired and felony death by vehicle, arguing the trial court erred by (1) denying her requests for voluntary discovery of laboratory audits and records, and (2) admitting her blood test results into evidence. The Court of Appeals found no error by the trial court.

While driving to work at 6:00 am in June of 2020, defendant struck and killed a pedestrian walking along the roadway. The section of roadway was straight and conditions were clear that morning. When Raleigh Police responded to the scene, they did not suspect that alcohol was a factor, but an officer requested a blood sample for chemical analysis. After testing at the City-County Bureau of Identification (CCBI), it was determined that defendant had a blood alcohol concentration of 0.18. In May of 2021, defendant was convicted by a jury of driving while impaired and felony death by vehicle.

Defendant argued that she should have been granted the CCBI laboratory’s audit, non-conformity, and corrective-action records under N.C.G.S. § 15A-903, as they “may have contained information demonstrating ‘an increased possibility of user error in the operation of th[e] machine’ used to analyze her blood sample.” Slip Op. at ¶19. The Court of Appeals disagreed, pointing out that defendant cited no cases to support this proposition. The court explained that while N.C.G.S. § 15A-903 provides that defendant was entitled to complete test results and data involving test procedures, normally “the State need not provide ‘information concerning peer review of the testing procedure, whether the procedure has been submitted to the scrutiny of the scientific community, or is generally accepted in the scientific community.’” Slip Op. at ¶¶23-24, quoting State v. Fair, 164 N.C. App. 770 (2004). After reviewing the extensive amount of information produced related to CCBI’s testing and chain of custody, the court could not establish that defendant suffered any prejudice to her ability to cross-examine the prosecution’s expert, or to her due process rights or right to a fair trial.

Moving to defendant’s second argument that her blood sample was improperly admitted into evidence because she did not knowingly or voluntarily consent to the blood draw, the court noted that this issue was not raised at trial. Because defendant failed to raise the issue at trial, it was not preserved for appellate review, and the court declined to exercise Appellate Rule 2 to review the issue. Slip Op. at ¶35.