Earlier this month, the North Carolina Supreme Court decided State v. Golder, ___ N.C. ___, ___ S.E.2d ___, 2020 WL 1650899 (April 3, 2020). Before that decision, there were somewhat tricky rules about how to preserve appellate review of all issues in a motion to dismiss for insufficiency of the evidence. No more. The Golder decision clarifies that all sufficiency issues are preserved with a properly timed motion to dismiss at trial. This decision overrules a line of cases holding otherwise and simplifies the process of preserving sufficiency issues at trial for defense counsel. Read on for the details.
The Problem. I blogged about the now-defunct rules for preserving sufficiency of evidence issues at trial here. This was the issue: Under Rule 10(a)(1) of the North Carolina Rules of Appellate Procedure, the specific grounds for an objection must appear in the record to preserve the issue for review (except where the grounds of the objection are clear from the context). A related principle is that a party may not “swap horses” on appeal—if one argument is made in the trial court, the reviewing court will not consider a novel or new issue beyond the argument below. See, e.g., State v. Sharpe, 344 N.C. 190 (1996). Rule 10(a)(3), though, specifically speaks to sufficiency motions. It lays out the rules for preservation of these motions—the motion must be made at the close of the State’s evidence and must be renewed at the close of all evidence if the defendant puts on evidence. There is no requirement in Rule 10(a)(3) that specific grounds are necessary to preserve review of sufficiency motions.
Under State v. Benson, 234 N.C. 263 (1951), a case decided before the enactment of the Rules of Appellate Procedure, and more recent cases from the Court of Appeals, the “specific grounds” requirements of Rule 10(a)(1) and the horse-swapping rule were being applied to appellate review of sufficiency motions. If specific grounds for insufficiency were argued at trial and no “global” motion was made, any un-argued sufficiency issues were waived on appeal. See, e.g., State v. Walker, 252 N.C App. 409 (2017). Thus, it became important for defenders to remember the “magic words” needed to make a global motion and preserve all sufficiency issues. As you can imagine, this became a significant point in felony defense training. You can see the script recommended by the Office of the Appellate Defender in the trial volume of the North Carolina Defender Manual. See § 30.3D, Procedural Requirements, at p. 7 (Nov. 2018).
The Solution. All of that was wrong, according to the Supreme Court in Golder. Unlike other issues that must be specifically raised at trial to be preserved under Rule 10(a)(1), sufficiency of the evidence is different. In the words of the court:
[M]erely moving to dismiss at the proper time under Rule 10(a)(3) preserves all issues related to the sufficiency of the evidence for appellate review. Therefore, the Court of Appeals’ jurisprudence, which has attempted to categorize motions to dismiss as general, specifically general, or specific, and to assign different scopes of appellate review to each category, is inconsistent with Rule 10(a)(3). Golder, Slip Op. at 17 (emphasis in original).
The Supreme Court noted that a trial judge, faced with a motion to dismiss for insufficiency, has a duty to determine whether the State presented substantial evidence of each element of the challenged offense under well-established caselaw. See, e.g. State v. Stephens, 244 N.C. 380 (1956). The court’s reading of Rule 10(a)(3) emphasizes that duty:
Because our case law places an affirmative duty upon the trial court to examine the sufficiency of the evidence against the accused for every element of each crime charged, it follows that, under Rule 10(a)(3), a defendant’s motion to dismiss preserves all issues related to sufficiency. . . Golder, Slip Op. at 12.
Benson, the pre-Rules case, was “inapposite” and did not control, according to the court. Walker and the other Court of Appeals cases applying Rule 10(a)(1) to sufficiency motions were wrongly decided and consequently overruled.
So It’s Easier Now? Simply put, yes—it’s much easier to preserve a sufficiency of evidence issue for an offense at trial now. But there are still a few wrinkles that might cause cautious defender to fret. For one, only a properly timed motion preserves the sufficiency issue. If the defendant fails to make the motion at all, or fails to renew it after putting on evidence, sufficiency issues are still waived (and I mean waived—Golder also reminds us that plain error review is not available for waived sufficiency issues). It’s a basic point, but one I think bears repeating. I remember forgetting to make a sufficiency motion during my first jury trial and a kind judge asking twice if I had any motions before I recalled what needed to be done. It’s easy to forget during the stress of trial, and the judge might not (and is not required to) remind you. So first and foremost, remember to make the motion at the close of the State’s evidence and to renew at the close of all evidence if you present evidence.
What about Cases with Multiple Charges? If a defendant with multiple charges simply moves to dismiss for insufficient evidence, without specifying any particular charges at all, does that motion preserve review of all offenses? Golder suggests it does. But what if the defendant moves to dismiss one charge for insufficient evidence and not another? There, I’m not so sure. On one hand, it is possible that Golder will be interpreted broadly on this point, so that any motion to dismiss (even one targeting only one charge, to the exclusion of other charges) will preserve all sufficiency issues for all offenses. In the quoted language above, the opinion mentions the duty of the trial court to examine the sufficiency of evidence as to “each crime” when a sufficiency motion is raised. But the opinion also emphasizes the requirement of Rule 10(a)(3) that there be a motion. There’s at least an argument that this means a motion as to each offense. The defendant in Golder raised challenges to both offenses at issue. The result might be different if he had only moved to dismiss only one of his charges. In other words, a motion to dismiss for insufficiency as to one offense may not preserve sufficiency review for other, unchallenged offenses. Until this point is fleshed out, I recommend defenders err on the side of caution and continue moving to dismiss all charges in cases with multiple offenses. When defenders have concerns about the sufficiency of the evidence in support of a specific charge or a specific element of a charge, they should emphasize the issues to the trial judge. Just don’t forget to move to dismiss all charges too.
What about Variance Motions? A fatal variance exists when the evidence at trial differs from a material (or essential) element as alleged in the indictment. See, e.g., State v. Pickens, 346 N.C. 628 (1997). This is another ground for a motion to dismiss at the close of the State’s evidence or before verdict. Conceptually, it is a sufficiency motion—with a fatal variance, the evidence wasn’t sufficient to support the allegations in the indictment. Golder doesn’t address variance arguments, but other cases hold that a variance argument will be waived on appeal if not specifically raised at trial, even if the defense moved to dismiss for insufficiency. See, e.g., State v. Hooks, 243 N.C. App. 435 (2015), disc. review denied, cert. denied, 368 N.C. 605 (2015) (declining to review variance argument raised on appeal for the first time when defendant argued sufficiency of the evidence at trial). Until we have clear authority to the contrary, defenders should make a specific motion to dismiss for a fatal variance in addition to a sufficiency motion to preserve any potential variance issue for appeal. For recommended language, see 2 North Carolina Defender Manual § 30.3D, Procedural Requirements, at p. 7 (Nov. 2018).
If you have thoughts or questions about Golder, post a comment below and let us know.