North Carolina Criminal Law NC Criminal Law

This post summarizes published criminal decisions from the Court of Appeals of North Carolina released on April 19, 2022. 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 circumstantial evidence that the defendant was the driver of a moped.

State v. Ingram, 2022-NCCOA-264, ___ N.C. App. ___ (Apr. 19, 2022). In this Rowan County case, the defendant appealed after being convicted of impaired driving after a jury trial. The conviction stemmed from a 2017 incident in which the defendant was found unresponsive on a fallen moped in the middle of the road.  Field sobriety tests and a toxicology test indicated that the defendant was impaired. The trial court denied the defendant’s motion to dismiss and the defendant was convicted. On appeal, the defendant contended that the trial court erred by denying his motion to dismiss because there was insufficient evidence that he drove the moped. Though no witness testified to seeing the defendant driving the moped, the Court of Appeals concluded that there was sufficient circumstantial evidence that he did. He was found alone, wearing a helmet, lying on the double yellow line in the middle of the road and mounted on the seat of the fallen moped. The Court thus found no error.

The trial court appropriately considered evidence regarding the interrogation of a juvenile without the need for further expert testimony.

State v. Benitez, 2022-NCCOA-261, ___ N.C. App. ___ (Apr. 19, 2022). This Lee county case has a lengthy procedural history, summarized in State v. Benitez, 258 N.C. App. 491, 813 S.E.2d 268 (2018) (Benitez I). Most recently, the case was remanded to the trial court to conduct a review of the totality of the circumstances of the juvenile defendant’s statements to law enforcement to determine if he knowingly and voluntarily waived his Miranda rights. The defendant made the statements at age 13 during two and a half hours of questioning that occurred at the Sheriff’s office. The statements were made through an interpreter and in the presence of the juvenile’s uncle. The juvenile’s initial motion to suppress was denied, and he subsequently pled guilty to first-degree murder.  On remand, the trial court again denied the motion to suppress.

The Court of Appeals rejected the defendant’s argument that the trial court was not in a position to make certain findings without the benefit of expert testimony. Whether a juvenile understood Miranda warnings does not require testimony of an expert. It is, the Court concluded, a question of law to be answered by the court based on the evidence presented by both sides. The trial court appropriately considered evidence regarding the circumstances surrounding the interrogation, as well as the juvenile’s age, experience, education, background, intelligence, and capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.  The trial court did not need further expert testimony on these topics to make its determination. The trial court was also clear that evidence from the capacity hearing, held well after the interrogation occurred, was not used in determining that the defendant understood the Miranda warnings at the time of interrogation. The binding findings of fact, considered as directed by Benitez I, support the trial court’s denial of the motion to suppress. The Court of Appeals therefore affirmed the trial court.

The trial court erred by instructing the jury on the aggressor doctrine.

State v. Hicks, 2022-NCCOA-263, ___ N.C. App. ___ (Apr. 19, 2022). In this Randolph County case, the defendant was convicted of second-degree murder for an incident in which she killed Caleb Adams, a romantic partner. On the day of the incident, Caleb stormed into her residence while under the influence of methamphetamine and began pushing, punching, kicking, and shoving her before the defendant shot him twice in the back. At trial, the judge instructed the jury on the aggressor doctrine over the defendant’s objection. The defendant argued on appeal that the trial court erred in instructing the jury on the aggressor doctrine because the evidence presented did not support any inference that she was the aggressor within the meaning of G.S. 14-51.4(2) (stating that self-defense under 14-51.2 and -51.3 is not available to a person who initially provokes the use of force against himself or herself unless an exception applies). Applying the relevant factors (the circumstances that precipitated the altercation, the presence or use of weapons, the degree and proportionality of the parties’ use of defensive force, the nature and severity of the parties’ injuries, and whether there is evidence that one party attempted to abandon the fight), the Court of Appeals concluded that the trial court erred in instructing the jury on the aggressor doctrine. The victim burst into the defendant’s residence even though the defendant told him not to come, he yelled at her and told her he was going to kill her, and he initiated a physical confrontation. Though the victim entered the home unarmed, he briefly took possession of the victim’s firearm before relinquishing it to her; she armed herself with it only after the victim continued to scream at her, and used it only after he physically assaulted her. The Court rejected the State’s argument that the defendant’s threat to send sexually explicit photographs to his wife on the night before the shooting made her the aggressor. The threat happened seven hours before the shooting, and therefore was not made at the time the self-defense occurred. Additionally, the Court declined to hold that a threat to expose one’s extramarital affair is conduct demonstrating an aggressive willfulness to engage in a physical altercation. The Court also rejected the State’s argument that the act of shooting the victim in the back necessarily made the defendant the aggressor. The Court distinguished State v. Cannon, 341 N.C. 79 (1995), in which the aggressor doctrine properly applied when the victim was actively retreating from the affray. In the absence of evidence that the defendant was the aggressor, the trial court erred in giving the aggressor instruction. The Court therefore ordered a new trial.

Having ordered a new trial, the Court did not reach the defendant’s argument that the trial court admitted certain evidence in error.

(1) Lifetime SBM was not unreasonable as applied to the defendant. (2) The trial court erred by ordering a second SBM determination hearing upon the defendant’s release from prison.

State v. Carter, 2022-NCCOA-262, ___ N.C. App. ___ (Apr. 19, 2022). In this Forsyth County case, the defendant was convicted of multiple sex crimes in 2020. Based on a prior conviction from 2002, he was deemed to be a recidivist and ordered to enroll in satellite-based monitoring (SBM). In its written order, the trial court ordered SBM for life based on the defendant’s status as a recidivist. The Court of Appeals noted that the defendant was also statutorily eligible for lifetime SBM based on his convictions for “sexual offenses with a child younger than thirteen” (although there was no clear indication in the opinion that the defendant was convicted of statutory sexual offense with a child by an adult under G.S. 14-208.28). The trial court made findings as to the reasonableness of SBM in light of State v. Grady, 372 N.C. 509 (2019), but ultimately ordered that the defendant be brought back before the court at the conclusion of his lengthy active sentence for a determination of the reasonableness the search under then-existing circumstances and technology.

(1) On appeal, the defendant argued that the trial court erred by ordering lifetime SBM when the State failed to present evidence about reasonableness and the trial court did not conduct a formal hearing on the issue. The Court of Appeals disagreed. As to SBM ordered during the defendant’s term of PRS, the Court concluded that it was reasonable in light of a supervised offender’s diminished expectation of privacy. As to the SBM extending beyond the period of PRS, the Court concluded under the totality of the circumstances that it too was reasonable in light of the 10-year cap on monitoring under 2021 statutory amendments; the fact that the defendant here was not just a recidivist, but was also convicted of a sexual offense with a victim under the age of thirteen; and the fact that SBM was deemed effective without the need for an individualized determination in State v. Hilton, 378 N.C. 692 (2021). The Court thus affirmed the trial court order requiring lifetime SBM.

(2) The defendant also argued that the trial court was without authority to order a second SBM determination hearing upon the defendant’s release from prison. The Court of Appeals agreed that there was no statutory authority for the procedure, but noted that SBM, as a civil matter, could be modified under authority of Rule 60 of the Rules of Civil Procedure. The Court thus vacated the trial court’s order for a second SBM hearing upon the defendant’s release.

(1) There was sufficient evidence of malice in a second-degree murder prosecution stemming from the defendant’s impaired driving. (2) The trial court properly denied the defendant’s motion for appropriate relief.

State v. Williamson, 2022-NCCOA-265, ___ N.C. App. ___ (Apr. 19, 2022). In this Robeson County case, the defendant was found guilty after a jury trial of second-degree murder, aggravated felony death by vehicle, and other offenses based on a motor vehicle crash that resulted in the death of a passenger. On appeal, the defendant argued that the trial court erred by failing to dismiss the charge of second-degree murder based on insufficiency of the evidence on malice. The Court of Appeals disagreed, noting evidence that showed the defendant, who had a history of impaired driving convictions, drove after consuming alcohol, continued to consume alcohol while driving over several hours, had a BAC that may have been as high as 0.20, and drove recklessly by engaging the emergency break and falling asleep while driving. Viewing that evidence in the light most favorable to the State, the Court concluded that there was sufficient evidence to submit the charge of second-degree murder to the jury.

The defendant also argued that the trial court erred by denying his motion for appropriate relief (MAR) alleging that a witness had recanted his trial testimony indicating that the defendant was the driver of the vehicle. That witness testified at an evidentiary hearing on the MAR that his trial testimony was false, but later asserted his Fifth Amendment privilege against self-incrimination on cross-examination, and then eventually failed to show up at all for a final hearing on the motion. The trial court found that the witness waived his privilege by testifying at the first hearing, but then substantially prejudiced the State’s ability to present its argument by failing to reappear and undergo cross-examination. The Court of Appeals concluded that the trial court properly applied the rule from State v. Ray, 336 N.C. 463 (1994), by striking the witness’s direct evidence in its entirety. Without that testimony, the defendant failed to meet his burden of proof, and the trial court thus properly denied the motion.

In re J.A.D., 2022-NCCOA-259, ___ N.C. App. ___ (Apr. 19, 2022). In this Surry County juvenile case, a petition was filed alleging that the juvenile committed extortion by obtaining a digital image of a victim, without her knowledge or consent, in which she was in only her bra and underwear. The petition also alleged that the juvenile used the image to obtain food from the school cafeteria while threatening to expose the image if the victim refused to buy the food or do what the juvenile asked of her. The petition did not name the victim. The juvenile was adjudicated delinquent and the court entered a Level 1 disposition. On appeal the juvenile asserted that (1) the court lacked subject matter jurisdiction because the petition was fatally defective in that it failed to name the victim, (2) the juvenile’s motion to dismiss should have been granted because the crime of extortion requires threat of unlawful physical violence and the juvenile did not make such a threat, (3) there was a fatal variance between the threat alleged in the petition and the proof at the adjudication hearing, (4) the written findings in the adjudication order were insufficient, and (5) the disposition order was insufficient in its failure to contain findings of fact to demonstrate that the court considered all the required factors in G.S. 7B-2501(c).

(1) The Court of Appeals concluded that there was no fatal defect in the petition. Juvenile petitions are generally held to the same standards as criminal indictments in that they must aver every element of the offense with sufficient specificity to clearly apprises the juvenile of the conduct being charged. Like an indictment, a fatally deficient petition fails to evoke the jurisdiction of the court. Central to the offense of extortion is the wrongfulness of the method by which the juvenile seeks to obtain something of value. Slip op. at ¶ 23. A charging instrument charging extortion need only aver the material elements of the offense, which are 1) that a wrongful demand was made with 2) the intent to demand something of value. Slip op. at ¶ 24. The petition in this case sufficiently alleged each of these elements. It was not necessary to specifically name the victim.

(2) The Court also assumed, without holding, that G.S. 14-118.4 is an anti-threat statute, the court holds that First Amendment jurisprudence does not limit the application of this statute to threats of unlawful physical violence. Slip op. at ¶ 31. The definition of a true threat, as provided in State v. Taylor, 379 N.C. 589, 2021-NCSC-164, does not require that a threat includes unlawful physical violence. There is no constitutional rule that threats are protected speech unless they threaten unlawful physical violence. Slip op. at ¶ 34. The State was not required to prove that the juvenile threatened unlawful physical violence.

(3) Next, the Court concluded that there was no fatal variance between the petition and the evidence. The essential element of extortion is that the juvenile used a wrongful threat to obtain something of value. The precise identification of what that thing of value was is not material, as long as the State proves that the juvenile obtained or attempted to obtain something of value. Slip op. at ¶ 40. The specific language in the petition alleging that the juvenile sought to obtain food from the cafeteria was unnecessarily specific and therefore surplusage. The fact that the evidence showed that the juvenile asked the victim to do his homework and the petition alleged that he asked her to obtain food from the cafeteria did not create a fatal variance.

 (4) Next, the Court concluded that there were insufficient written findings in the adjudication order. G.S. 7B-2411 requires that, at a minimum, the court state in a written adjudication order that the allegations in the petition have been proved beyond a reasonable doubt. Language on the pre-printed form used, stating that “The following facts have been proven beyond a reasonable doubt: . . ,”  followed by a finding that states, “[a]t the hearing before the judge, the juvenile was found to be responsible for extortion in violation of 14-118.4,” is insufficient to satisfy this statutory requirement. Only a conclusory statement that the juvenile was responsible for the offense is insufficient. The trial court must affirmatively state the burden of proof in its written findings without regard to the pre-printed language on the form. The case is remanded for the court to make the necessary written findings in the adjudication order. The dispositional order also incorporated the predisposition report and the juvenile’s risk and needs assessment by reference. There were no written findings related to the factors the court is required to consider under G.S. 7B-2501(c) when ordering a disposition. The order is therefore insufficient. Because the adjudication order is vacated, this disposition order is also vacated. However, the insufficiency of the disposition order provides an independent ground for vacating the disposition order. On remand, the trial court may hold a new dispositional hearing to hear additional evidence needed to appropriately consider the factors required by G.S. 7B-2501(c).