Case Summaries — North Carolina Court of Appeals (August 4, 2020)

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This post summarizes opinions issued by the Court of Appeals of North Carolina on August 4, 2020.

(1) Trial court did not commit plain error in instructing the jury regarding the charges of felonious child abuse by sexual act based on the pattern jury instruction providing a broader definition of sexual act than applies to offenses under Article 7B of Chapter 14; (2) Trial court did not commit plain error by failing to strike testimony from forensic interviewer that child made a tentative rather than a full disclosure; (3) Trial court did not commit a clerical error in sentencing the defendant to a maximum sentence that was calculated based on the minimum term actually imposed.

State v. Wohlers, ___ N.C. App. ___, ___ S.E.2d ____ (August 4, 2020). The defendant was convicted of indecent liberties with a child and felony child abuse by sexual act based on crimes committed against his daughter and stepdaughter. He raised three arguments on appeal:  (1) the trial court plainly erred by instructing the jury on felonious child abuse by sexual act; (2) the trial court plainly erred in permitting testimony from a forensic interviewer about the nature of his stepdaughter’s disclosure; and (3) that the trial court erred in calculating the maximum term of imprisonment.

(1) The court of appeals determined that the trial court did not plainly err in instructing the jury on felonious child abuse by sexual act. G.S. 14-318.4(a2) provides that any parent or legal guardian of a child under 16 who “commits or allows the commission of any sexual act upon the child is guilty of a Class D felony.” The trial court instructed the jury in accordance with NC Pattern Jury Instruction – Criminal 239-55B that a “sexual act is an immoral, improper or indecent touching or act by the defendant upon the child.” On appeal, the defendant argued that the definition of “sexual act” in G.S. 14-27.20(4) should apply. The term is therein defined as “[c]unninglingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse.” It also includes “the penetration, however slight, by any object into the genital or anal opening of another person’s body.”

The court of appeals in Wohlers found the defendant’s argument foreclosed by State v. Alonzo, 373 N.C. 437 (2020). In Alonzo, the state supreme court concluded that the definitions in G.S. 14-27.20 applied only within Article 7B of Chapter 14. Thus, the Alonzo court held that it was error for the court of appeals below to have concluded that the definition of sexual act in G.S. 14-27.20(4) applied to offenses under G.S. 14-318.4(a2), which is contained in Article 39 of Chapter 14.

(2) The court of appeals determined that even if the trial court erred in failing to strike testimony from a forensic interviewer that arguably vouched for the victim’s credibility, the defendant could not show he was prejudiced by the error. The interviewer testified that the defendant’s stepdaughter’s disclosure was “tentative,” and that “she’s a child who falls into the I want to tell someone so this will stop, but I don’t really want it to go past that, and I just want it to be done.” The defendant did not move to strike the testimony at trial, but argued on appeal that it was impermissible vouching of the victim’s credibility.

The court held that the defendant could not show that the alleged error had a probable impact on the jury’s finding that he was guilty, noting that the defendant himself had provided a written statement that was consistent with the victim’s testimony and which was introduced as evidence at trial.

(3) The court of appeals held that the trial court properly determined the defendant’s maximum term of imprisonment for felony child abuse by sexual act, a Class D felony, based upon the minimum term it had selected (64 months) rather than the minimum term permitted by statute (51 months). G.S. 15A-1340.17(f) provides that, for offenders sentenced for reportable convictions that are Class B1 through E felonies, the maximum term of imprisonment “shall be equal to the minimum term of imprisonment and twenty percent (20%) of the minimum term of imprisonment, rounded to the next highest month, plus 60 additional months.” Once the trial court set the defendant’s minimum term of imprisonment at 64 months (the top of the presumptive range), it properly added 64 plus 13 (20 percent of 64, 12.8, rounded to the next highest month) plus 60, totaling 137 months.

(1) Wake County Superior Court retained jurisdiction over hearing to determine whether the defendant was required to register as a sex offender based upon his conviction for felony secret peeping when defendant agreed to subsequent hearing that was postponed to allow defendant to demonstrate that he was not a danger to the community and where defendant received adequate notice of hearing; (2) Order remanded for correction of clerical error.

State v. Vorndran, ___ N.C. App. ___, ___ S.E.2d ____ (August 4, 2020). On March 21, 2018, the defendant pled guilty in Wake County Superior Court to felony secret peeping in violation of G.S. 14-202(e). Pursuant to a plea agreement, the defendant was placed on four years of supervised probation. Among other conditions, the defendant was not permitted to be unsupervised around children under the age of 14. The trial judge conducted a separate hearing the same day on whether the defendant would be required to register as a sex offender pursuant to G.S. 14-202(l). The trial court opted, in light of the defendant’s age, to give him a chance to show that he was not a danger to the community. The court announced that there would be a hearing in 12 months to see whether the defendant was in compliance with probation. The parties agreed to a subsequent hearing, which they agreed could be accelerated for noncompliance.

On December 1, 2018, the defendant was arrested in New Hanover County for felony secret peeping. Three days later, the State notified the defendant that based on his recent arrest he should be required to register for his Wake County conviction and that his registration hearing was being accelerated. On December 20, 2018, the defendant appeared in Wake County Superior Court before a superior court judge who was not the sentencing judge in the original Wake County case. The judge ordered the defendant to register as a sex offender for 30 years.

(1) The defendant argued on appeal that the trial court lacked jurisdiction over the December 20 hearing because the presiding judge was not the “sentencing court” as contemplated by G.S. 14-202(l).

The court of appeals rejected the defendant’s argument, noting that the defendant agreed to a subsequent hearing, which he agreed could be accelerated, and agreed that he would not be unsupervised around any children under the age of 14. Thus, when he was arrested for felony secret peeping involving a nine-year-old child, he was in violation of the terms of his probation, and his hearing could be accelerated pursuant to the plea agreement. In addition, the State notified the defendant that it was accelerating his registration hearing, and the issues before the court in that hearing were to determine in the first instance whether the defendant was a danger to the community and whether his registration would further the purpose of the registration scheme. On these facts, the appellate court determined that Wake County Superior Court retained jurisdiction over the defendant’s second hearing and affirmed its order.

(2) The trial court erroneously checked box 1(b) on form AOC-CR-615 (the sex offender registration determination form), indicating the defendant was convicted of a sexually violent offense rather than box 1(d), to indicate that the defendant was convicted of felony secret peeping. The court of appeals remanded the matter to the trial court for the limited purpose of correcting that error.

(1) Trial court did not err by permitting lay witness to testify that the shots defendant fired were individual shots that were not as rapid as shots fired from an automatic weapon; (2) Evidence of seven distinct shots was sufficient to support seven charges of discharging a firearm into an occupied vehicle

State v. Morrison, ___ N.C. App. ___, ___ S.E.2d ____ (August 4, 2020). The defendant was convicted of possession of a firearm by a felon, three counts of assault with a deadly weapon and seven counts of discharging a firearm into an occupied vehicle based on an incident in which he chased two women from his house and fired at the car of a Good Samaritan who stopped to assist the women on the highway.

(1) Though the defendant did not object to the testimony at trial, he argued on appeal that the Good Samaritan should not have been permitted to testify as a lay witness that the shots were not fired from an automatic weapon. The court of appeals found no error in the admission of the testimony, which was based on the witness’s first-hand knowledge of the incident and his familiarity with the distinction between automatic and semi-automatic rifle fire, gained through decades of military service.

(2) Defendant argued on appeal that the State failed to prove the six additional shots fired into the truck after the first shot were discharged willfully or wantonly within the meaning of G.S. 14-34.1(b). The court of appeals rejected the defendant’s argument. The court noted that the Good Samaritan’s testimony provided evidence that the defendant did not use an automatic weapon but instead used a weapon that required him to pull and release the trigger (and thus employ his thought process) each time he decided to shoot into the occupied truck. In addition, testimony from the Good Samaritan and one of the women established that the shooting continued over an identifiable period of time, as opposed to occurring in a rapid burst of gunfire.

Finally, the court of appeals dismissed the defendant’s argument that he had been sentenced in violation of his right to be free from double jeopardy on the basis that the defendant failed to preserve the argument by objecting a trial.

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