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Case Summaries – NC Court of Appeals (June 2, 2020)

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This post summarizes opinions issued by the North Carolina Court of Appeals on June 2, 2020.

By failing to move to strike testimony that had been the subject of pretrial suppression motions which were denied, the defendant failed to preserve his arguments concerning the admissibility of the testimony

State v. Anthony, ___ N.C. App. ___, ___ S.E.2d ___ (June 2, 2020).  In a case involving charges of possession of a firearm by a felon and possession of a weapon on educational property, the defendant failed to preserve for appellate review his argument that the trial court erred by denying his pretrial suppression motions related to the lawfulness of a traffic stop and a subsequent weapons frisk.  At trial, the defendant objected to an officer’s testimony regarding the officer’s discovery of a handgun in the defendant’s pocket, but the defendant did not move to strike the testimony.  Citing precedent with regard to situations where the inadmissibility of testimony is not indicated by a question but becomes apparent by some feature of a witness’s answer, the court stated that the “[d]efendant was obligated to move to strike [the officer’s] answer after objecting for the record and before the jury to preserve his objection.”  Because he did not move to strike at trial or specifically argue plain error on appeal, the defendant failed to preserve his arguments concerning the admission of evidence about the handgun.

The court went on to reject the defendant’s argument that his trial counsel was ineffective during the pretrial hearing on the suppression motion related to the weapons frisk.  During that hearing, defense counsel expressed the view that the officer had the reasonable and articulable suspicion necessary to conduct a frisk upon seeing a bulge in the defendant’s pocket while arguing that the officer unlawfully had decided to conduct the frisk prior to seeing the bulge.  Noting that the defendant could not show prejudice and that the trial court did not rely on defense counsel’s statement when ruling on the motion, the court overruled the defendant’s IAC argument.

 

In a drug trafficking case, there was insufficient evidence that the defendant knowingly possessed methamphetamine where the defendant mistakenly believed that the drugs provided to him at a controlled sale were fake and handled them only for the purpose of inspection

State v. Campbell, ___ N.C. App. ___, ___ S.E.2d ___ (June 2, 2020).  In this trafficking of methamphetamine case, substantial evidence showed that the defendant believed the white substance handed to him during a controlled drug sale was fake, rather than an impure mixture containing methamphetamine, and therefore there was insufficient evidence that the defendant knowingly possessed the methamphetamine.  At a controlled drug sale arranged by law enforcement with the help of an informant, the defendant stated his belief that the substance presented to him as methamphetamine was, contrary to his expectations, “re-rock,” a term that was defined by the State’s witnesses to describe “fake” drugs.  In fact, the substance was a mixture of 1 gram of methamphetamine and at least 28 grams of a cutting agent.  As the defendant and an associate inspected the substance, law enforcement officers entered the room and arrested them.  Finding the case to be controlled by State v. Wheeler, 138 N.C. App. 163 (2000), the court explained that when there is no evidence that a person intends to continue a drug transaction because he or she believes the drugs are fake, handling the drugs for the sole purpose of inspection does not constitute possession.

Judge Berger dissented and expressed his view that there was sufficient evidence that the defendant knowingly possessed the methamphetamine because of his previous dealings in methamphetamine with the informant and because the defendant’s use of the term “re-rock” may have been a reference to impure, rather than fake, methamphetamine.  Judge Berger also distinguished Wheeler on the grounds that the defendant in this case did not affirmatively reject the methamphetamine mixture

 

Where the defendant was convicted of sale of cocaine and delivery of cocaine based on a single transfer, the trial court did not commit plain error by arresting judgment on the delivery conviction and sentencing the defendant on the sale conviction

State v. Canady, ___ N.C. App. ___, ___ S.E.2d ___ (June 2, 2020).  In this case involving convictions for, among other offenses, sale of cocaine and delivery of cocaine, the trial court did not commit plain error in its application of G.S. 90-95 and in sentencing the defendant.  At sentencing, the trial judge arrested judgment on the conviction of delivering cocaine, a Class H felony, and consolidated other convictions into the single count of selling cocaine, a Class G felony.  On appeal the defendant argued that G.S. 90-95, which generally punishes the sale of cocaine more severely than the delivery of cocaine, is ambiguous as to the appropriate punishment for a judgment based on the “sale or delivery” of cocaine and that the rule of lenity requires that the lesser punishment be imposed.  Taking note of the North Carolina Supreme Court’s decision in State v. Moore, 327 N.C. 378 (1990) establishing that a defendant may not be convicted of both the sale and the delivery of a controlled substance when both offenses arise from a single transfer, the court held that the purpose of Moore was accomplished here by the trial judge arresting judgment on the delivery of cocaine conviction and that the defendant did not show that plain error occurred.

 

The trial court erred in calculating the defendant’s prior record level by using a joinable offense as a prior conviction

State v. High, ___ N.C. App. ___, ___ S.E.2d ___ (June 2, 2020).  The trial court erred in calculating the defendant’s prior record level, which was proved by stipulation, by using a joinable offense as a prior conviction for sentencing purposes.  In 2004 the defendant was convicted of first-degree murder and armed robbery based on an incident where he killed his father and took money from his father’s bedroom.  The defendant was 15 years old at the time of the offenses but was tried as an adult and sentenced to life in prison without the possibility of parole.  In 2014 post-conviction proceedings based on Miller v. Alabama, the first-degree murder conviction was vacated and the defendant pleaded guilty to second-degree murder.  As part of that plea agreement, the State and the defendant stipulated that the defendant had a prior record level of III, a record level that was the result of six prior record points arising from the 2004 armed robbery conviction.  Noting that a defendant’s stipulation regarding his or her prior record level does not preclude the court’s review where calculation of the record level requires answering a legal question, the court found that use of the 2004 armed robbery conviction violated the rule from State v. West, 180 N.C. App. 664 (2006) that a joinable offense may not be used in calculating a defendant’s prior record level.

 

In a neglect of an elder adult case there was sufficient evidence that the defendant was her elderly mother’s “caretaker”; the admission of video of a police interview with the mother containing alleged hearsay was not prejudicial

State v. Stubbs, ___ N.C. App. ___, ___ S.E.2d ___ (June 2, 2020).  In this neglect of an elder adult case, the trial court did not err by denying the defendant’s motion to dismiss for insufficient evidence that she was her elderly mother’s “caretaker” as that word is defined by G.S. 14-32.3(d)(1), and the trial court did not commit plain error by allowing a video of the defendant’s mother to be played for the jury.  Despite the defendant’s argument that she and her mother, who lived at the defendant’s house, did not have a “close relationship” and were “more like roommates” and testimony describing the mother as a “very private person [who] liked to keep to herself,” the court found the State’s evidence sufficient to send the question of the defendant’s caretaker status to the jury.  This evidence included that in her mother’s final weeks of life the defendant helped her bathe; purchased food and supplies for her; assisted her in paying her bills; helped with “general normal care, daily things;” and purchased life insurance on her behalf and at her request.

The court went on to determine that the trial court did not commit plain error by admitting a video of a police interview with the defendant’s mother to be played for the jury.  The defendant argued that her mother’s statements in that video, which went to the issue of whether the defendant was her caretaker, were inadmissible hearsay.  The court found that admission of the video, even if error, was not prejudicial because the State’s other evidence was adequate to prove that the defendant was her mother’s caretaker.

 

In a keeping or maintaining a vehicle drug case, there was insufficient evidence that the defendant kept or maintained a vehicle; assuming evidence of keeping or maintaining the vehicle was sufficient, there was insufficient evidence that the defendant’s purpose for doing so was keeping or selling controlled substances

State v. Weldy, ___ N.C. App. ___, ___ S.E.2d ___ (June 2, 2020).  In this keeping or maintaining a vehicle for the keeping or sale of controlled substances case, there was insufficient evidence that the defendant kept or maintained a vehicle or did so for the keeping or selling of controlled substances.  Officers had received information from another agency indicating that the defendant was selling drugs.  During a traffic stop and weapons frisk following 20-25 minutes of surveillance of the defendant driving, approximately 56 grams of methamphetamine and 7 grams of heroin were discovered on the defendant’s person, and an officer later testified that neither amount was consistent with personal use.  The defendant was driving a vehicle registered to his wife and mother-in-law.

Noting that North Carolina courts have defined the words “keep” and “maintain” separately, the court explained that they are similar terms, “often used interchangeably, to establish a singular element of the offense” and that whether a vehicle is “kept or maintained” for the keeping or selling of controlled substances depends on the totality of the circumstances.  Finding that the State presented no evidence that the defendant “maintained” the vehicle because there was no evidence that the defendant had title to or owned the vehicle, had a property interest in it, or paid for its purchase or upkeep, the court turned to whether there was sufficient evidence that the defendant “kept” the car within the meaning of G.S. 90-108(a)(7).  Reviewing relevant caselaw, which establishes that the “keep or maintain” language of the statute “refers to possessing something at least for a short period of time—or intending to retain possession of something in the future—for a certain use,” the court determined that evidence of the defendant’s possession of the vehicle for approximately 20-25 minutes, standing alone, was insufficient to prove that the defendant “kept” the vehicle.

The court then turned to whether, assuming there had been sufficient evidence of the defendant’s keeping or maintaining the vehicle, the State presented sufficient evidence that the defendant’s purpose in doing so was the “keeping or selling” of controlled substances.  Again reviewing relevant caselaw, the court determined that the discovery on the defendant’s person of single bags containing approximately 56 grams of methamphetamine and 7 grams of heroin was insufficient to prove the purpose of keeping or maintaining the vehicle was the keeping or selling of controlled substances.  The court noted that the State presented no evidence that cell phones, cash, scales, baggies or other paraphernalia had been discovered in the vehicle.  There also was no evidence that the vehicle had been modified to conceal drugs or that drugs had been discovered in the vehicle itself, hidden or otherwise.

Judge Berger dissented and expressed his view that there was sufficient evidence of the offense and that the majority erroneously conflated “keeping” and “maintaining” in its analysis of whether the defendant kept or maintained the vehicle.  In Judge Berger’s view there was sufficient evidence that the defendant “kept” the vehicle based on his possession of the vehicle while engaging in drug activity.  He also would have found sufficient evidence that the defendant’s purpose in doing so was the keeping or selling of controlled substances based on the defendant’s use of the vehicle to transport drugs, the discovery of a purported drug ledger in the vehicle, and other evidence that the defendant was involved in the sale of drugs.

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