This post summarizes published criminal decisions from the North Carolina Supreme Court released on October 29, 2021. As always, these summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present.
There was sufficient evidence that the defendant committed multiple assaults against his girlfriend where a “distinct interruption” occurred between the assaults
State v. Dew, ___ N.C. ___, 2021-NCSC-124 (Oct. 29, 2021). There was sufficient evidence that the defendant committed multiple assaults against his girlfriend and the Court was equally divided as to whether there was sufficient evidence to establish that the defendant used his hands, feet, or teeth as deadly weapons. The Court characterized “the question of how to delineate between assaults—to know where one assault ends and another begins—in order to determine whether the State may charge a defendant with multiple assaults” as an issue of first impression. Reviewing case law, the Court explained that a single assault “might refer to a single harmful contact or several harmful contacts within a single incident,” depending on the facts. The Court declined to extend the three-factor analysis of State v. Rambert, 341 N.C. 173 (1995), applicable to discharging a firearm into occupied property, to assault cases generally, saying that the Rambert factors were “not the ideal analogy” because of differences in the nature of the acts of discharging a firearm and throwing a punch or kick. The Court determined that a defendant may be charged with more than one assault only when there is substantial evidence that a “distinct interruption” occurred between assaults. Building on Court of Appeals jurisprudence, the Court said:
[W]e now take the opportunity to provide examples but not an exclusive list to further explain what can qualify as a distinct interruption: a distinct interruption may take the form of an intervening event, a lapse of time in which a reasonable person could calm down, an interruption in the momentum of the attack, a change in location, or some other clear break delineating the end of one assault and the beginning of another.
The Court went on to explain that neither evidence of a victim’s multiple, distinct injuries nor evidence of different methods of attack alone are sufficient to show a “distinct interruption” between assaults.
Turning to the facts at hand, the Court concluded that evidence showing that the defendant beat the victim for hours inside a trailer and subsequently beat the victim in a car while driving home was sufficient to support multiple charges of assault. The assaults were separated by an intervening event interrupting the momentum of the attack – cleaning the trailer and packing the car. The assaults also were distinct in time and location. Though the defendant was charged with at least two assaults for conduct occurring inside the trailer, the Court concluded that the evidence indicated that there was only a single assault inside the trailer as the attack was continuous and ongoing.
There was sufficient evidence of the value of a stolen propane tank for purposes of felonious larceny and felonious possession of stolen goods
State v. Wright, ___ N.C. ___, 2021-NCSC-126 (Oct. 29, 2021). The Supreme Court affirmed per curiam State v. Wright, 273 N.C. App. 188 (2020), a case where the Court of Appeals majority determined there was sufficient evidence of the value of a stolen propane tank for purposes of felonious larceny and felonious possession of stolen goods.
A Georgia conviction for statutory rape was substantially similar to a North Carolina Class B1 felony for purposes of calculating the defendant’s PRL for sentencing
State v. Graham, ___ N.C. ___, 2021-NCSC-125 (Oct. 29, 2021). The Court of Appeals properly applied the comparative elements test of State v. Sanders, 367 N.C. 716 (2014) in affirming the trial court’s consideration of the defendant’s Georgia conviction for statutory rape as equivalent to a North Carolina Class B1 felony for purposes of calculating the defendant’s PRL for sentencing. Comparing the elements of the Georgia statutory rape offense with the elements of G.S. 14-27.25, the Court found the offenses substantially similar despite variations in the states’ punishment schemes based on the ages of the offender and the victim.
Justice Earls, joined by Justice Ervin, dissented, expressing the view that the majority misapplied Sanders and that the offenses were not substantially similar because the Georgia statute “indisputably encompasses conduct which is not a Class B1 felony in North Carolina.” Justice Earls explained that, at the time of the defendant’s Georgia offense, a person who was 18 years old who had sexual intercourse with a 14-year-old would have violated the Georgia statute at issue but would not have violated any North Carolina statute creating a Class B1 felony.
North Carolina’s SBM program is not facially unconstitutional and the trial court did not err by ordering the defendant to submit to lifetime SBM
State v. Strudwick, ___ N.C. ___, 2021-NCSC-127 (Oct. 29, 2021). The trial court did not err by ordering the defendant to submit to lifetime SBM after he pleaded guilty to first-degree forcible rape and other offenses. In State v. Strudwick, 273 N.C. App. 676 (2020), the Court of Appeals reversed the trial court’s lifetime SBM order, relying on State v. Gordon, 270 N.C. App. 468 (2020) on its way to determining that the State did not demonstrate the reasonableness of the SBM search which would occur decades in the future. In its opinion, the Court of Appeals indicated that “further guidance” about SBM procedure from the Supreme Court would be helpful. The Court provided that guidance in this opinion, though it noted that S.L. 2021-138 made major revisions to the SBM program which are effective December 1, 2021.
The Court first concluded that the SBM scheme, which requires a trial court to determine the reasonableness of an SBM search at the time of sentencing rather than at the time of the actual effectuation of the search, is not facially unconstitutional. The Court noted that under G.S. 14-208.43 a defendant may petition for release from the SBM program, and further noted that a defendant potentially may be able to have a SBM order set aside through Rule 60 of the North Carolina Rules of Civil Procedure.
The Court then turned to the reasonableness of the lifetime SBM order in this case, finding that the SBM program’s promotion of the “legitimate and compelling governmental interest” in preventing and prosecuting future crimes committed by the defendant outweighed the program’s “narrow, tailored intrusion into [the] defendant’s expectation of privacy in his person, home, vehicle, and location.” The court explained, among other things, that the trial court found that the ET-1 SBM device is “relatively small” and “unobtrusive,” and that the SBM scheme only provides the State with the physical location of the defendant, who had a diminished expectation of privacy because of his status as a convicted felon sex offender, for use in the prevention and prosecution of future crimes he potentially could commit. The Court noted that unlike Grady III, a State’s witness had testified in the defendant’s case “concerning situations in which lifetime SBM would be obviously effective in assisting law enforcement with . . . preventing and solving future crimes by sex offenders.” Thus, the Court reversed the opinion of the Court of Appeals and kept the trial court’s lifetime SBM order in full effect.
Justice Earls, joined by Justices Hudson and Ervin, dissented. Justice Earls described the majority’s view that “a court today can assess the reasonableness of a search [of lifetime duration] that will be initiated when (and if) [the defendant] is released from prison decades in the future” as a “remarkable conclusion” and “cavalier disregard” of constitutional protections. Justice Earls went on to criticize the majority’s application and interpretation of Grady III as well as the majority’s analysis of whether the State had shown that the SBM search was reasonable.
A homicide defendant failed to show that the trial court committed prejudicial error in giving an unmodified version of the self-defense instruction from N.C.P.I. – Crim 206.10
State v. Leaks, ___ N.C. ___, 2021-NCSC-123 (Oct. 29, 2021). Even if the trial court erred by declining to instruct the jury using the defendant’s requested modified self-defense instruction, the defendant did not demonstrate that any such error was prejudicial. Testimony at trial described alternate versions of events that ultimately culminated in the defendant fatally stabbing the victim outside the home of the victim’s girlfriend. Generally, some witnesses described the stabbing as an unprovoked attack while others, including the defendant, testified that the victim threatened the defendant with a two-by-four board. The trial court instructed the jury on self-defense using N.C.P.I. – Crim 206.10, which states as an element of self-defense that a homicide defendant must believe it necessary “to kill” the victim. The trial court refused the defendant’s request to instead instruct the jury that he must believe it necessary “to use deadly force against the victim.” Taking account of other portions of the instruction which informed the jury that the defendant’s belief regarding his use of force must have been reasonable and that he must not have used “excessive force,” the Court concluded that the defendant had not shown that there was a reasonable possibility the jury would have found he acted in self-defense had the trail court given the modified instruction. The Court noted that the defendant suffered only minor injuries in the incident but had inflicted a “highly lethal wound” upon the victim using a knife so large that it looked like a machete. The Court said that the “uncontradicted medical evidence strongly suggests that [the] defendant’s use of deadly force was not reasonable under the circumstances but rather it was excessive.” In a footnote, the Court recommended that the North Carolina Pattern Jury Instruction Committee review N.C.P.I. – Crim 206.10.