This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on March 7, 2023. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

Trial court did not err when denying motion to dismiss due to sufficient evidence in the record, despite possibility that victim was also involved in the management of defendant’s prostitution ring.

State v. Norman, COA22-812, ___ N.C. App. ___ (March 7, 2023). In this Alamance County case, defendant appealed his convictions for human trafficking and sexual servitude regarding his ex-wife, arguing error in the denial of his motion to dismiss for insufficient evidence. The Court of Appeals found no error.

From 2015 to 2018, defendant operated a prostitution ring in the Alamance County area, operating at truck stops and using websites such as backpage.com to solicit customers. Eight to twelve women were involved in defendant’s prostitution ring, and paid him for drugs and hotel rooms that he provided, which were to be used for liaisons with paying customers. One of the women involved in the prostitution ring was defendant’s ex-wife, who assisted him in doing whatever was needed to operate the prostitution ring. After several incidents with law enforcement, defendant was arrested and charged with several counts of human trafficking, sexual servitude, and promoting prostitution. Another prostitute that worked with defendant was also charged and reached a plea agreement after agreeing to testify for the state.

Reviewing defendant’s appeal, the court found ample evidence to support the denial of defendant’s motion to dismiss. Defendant argued that there was insufficient evidence showing he held his wife in sexual servitude or trafficked her. The court pointed to evidence showing that defendant arranged for and transported his ex-wife to a truck stop on at least one occasion in 2017 for prostitution, including evidence showing his name on a business card used by the caller requesting a prostitute. Evidence also showed that defendant sold drugs to his ex-wife and provided her with a room at the hotel where he provided rooms to the other prostitutes he managed. Based on this evidence in the record, the court found no error in dismissing defendant’s motion. Although the court noted that some evidence supported the conclusion that the ex-wife may have been involved in the management of the prostitution ring, the court explained that “[c]ontradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.” Slip Op. at 12-13, quoting State v. Scott, 356 N.C. 591, 596 (2002).

Officer’s testimony that “everyone” assumed substance was cocaine did not create a question regarding defendant’s guilty knowledge that he possessed fentanyl, and did not justify providing a guilty knowledge instruction to the jury.

State v. Hammond, COA22-715, ___ N.C. App. ___ (March 7, 2023). In this Henderson County case, defendant appealed his conviction for trafficking opium or heroin by possession, arguing error in the denial of his requested instruction that the jury must find he knew what he possessed was fentanyl. The Court of Appeals found no error.

In March of 2018 the Henderson County Sheriff’s Office executed a warrant for defendant’s arrest at a home in Fletcher. During the arrest, an officer smelled marijuana and heard a toilet running in the house, leading the police to obtain a search warrant for the entire home. During this search, officers found a plastic bag with white powder inside, as well as some white powder caked around the rim of a toilet. Officers performed a field test on the substance which came back positive for cocaine, but when lab tested, the substance turned out to be fentanyl. At trial, one of the officers testified that “everyone” at the scene believed the substance they found was cocaine on the day of the search. Defendant chose not to testify during the trial, and had previously refused to give a statement when arrested.

Turning to defendant’s arguments, the court found that no evidence in the record supported defendant’s contention that he lacked guilty knowledge the substance was fentanyl. Defendant pointed to the officer’s testimony that “everyone” believed the substance was cocaine, but “[r]ead in context, it is apparent that [the officer] was referring to the knowledge of the officers who initially arrested [defendant and another suspect] for possession of cocaine, as the excerpted testimony immediately follows a lengthy discussion of their rationale for doing so.” Slip Op. at 8. Because defendant did not testify and no other evidence supported his contention that he lacked knowledge, his circumstances differed from other cases where a defendant was entitled to a guilty knowledge instruction. The court explained that evidence of a crime lacking specific intent, like trafficking by possession, creates a presumption that defendant has the required guilty knowledge; unless other evidence in the record calls this presumption into question, a jury does not have to be instructed regarding guilty knowledge. Id. at 9.

Defendant’s prior acts of discipline towards children of his girlfriend were properly admitted under Rules 403 and 404(b) during trial for involuntary manslaughter.

State v. Buchanan, COA22-663, ___ N.C. App. ___ (March 7, 2023). In this Wake County case, defendant appealed his conviction for involuntary manslaughter, arguing error in the admission of evidence related to defendant’s prior acts of discipline under Rules 403 and 404(b). The Court of Appeals found no error.

In 2019, defendant lived with his then-girlfriend and her five children in Raleigh. In February, they had a dispute over discipline that led to the end of their relationship, and an agreement that defendant would move out and return to Maryland. However, just before defendant was to leave, his girlfriend had a job interview that required her to leave the home for several hours. Defendant was left watching her three youngest children. While she was gone, the youngest child suffered injuries leading to a 911 call. Defendant told paramedics that the child choked on a waffle, but a CT scan at the hospital revealed a skull fracture and hematomas on both sides of the child’s brain, with no sign of obstruction in the airway. Defendant was charged with involuntary manslaughter. At trial, the state moved to admit evidence of three previous episodes of defendant disciplining the children, two of which involved the defendant striking a child. The trial court admitted this evidence over defendant’s objection.

Reviewing defendant’s objection to the evidence, the Court of Appeals found no abuse of discretion in the trial court’s decision to admit the evidence under Rules 403 and 404(b). Because defendant did not dispute the findings of fact or conclusions of law on the motion, the issue on appeal was the Rule 403 analysis of whether the danger of unfair prejudice substantially outweighed the probative value of the three episodes. Defendant first argued that the probative value of the three episodes was minimal, although the trial court determined that two of the episodes involved him “striking” the children and the third was “indicative of a temper,” and the events were “probative of the intent . . .the motive . . . the absence of mistake or accident, and malice.” Slip Op. at 6-7. The court found that the trial court handled the unfair prejudice Rule 403 balancing test appropriately. Despite defendant’s arguments about the prejudicial nature of the evidence and the “verbs chosen” by his girlfriend when recounting his behavior toward her children, the court concluded that “the danger of unfair prejudice did not substantially outweigh the probative value of the evidence” under Rule 403. Id. at 8.

Although defendant was in a separate car from the contraband, he was liable under the acting-in-concert theory for purposes of trafficking by possession and trafficking by transportation charges.

State v. Christian, COA22-299, ___ N.C. App. ___ (March 7, 2023). In this Cleveland County case, defendant appealed his convictions for trafficking methamphetamine, arguing that his motion to dismiss should have been granted as he was not physically present when his travel companion was found in possession of the contraband. The Court of Appeals affirmed the denial of defendant’s motion to dismiss.

In February of 2020, an associate of defendant was arrested for possession of drugs and chose to assist police with their investigation of defendant in return for leniency. Defendant had asked the associate for assistance in bringing drugs from Georgia to North Carolina, and the police assisted the associate in developing a plan where they would drive together to pick up drugs for sale in North Carolina. The plan would conclude with the pair being pulled over as they re-entered the state. However, as the pair returned from Atlanta with the drugs, they became tired, and defendant called a female friend to assist them with driving from South Carolina to their destination in North Carolina. The female friend arrived with another woman, and the pair split up, leaving defendant’s associate in the car with the contraband and one woman, and defendant in a different car with the other woman. They were both pulled over when they passed into North Carolina, traveling three to five miles apart. At trial, defense counsel moved to dismiss the charges at the close of state’s evidence and again at the close of all evidence, but both motions were denied.

The Court of Appeals first explained that a person may be charged with a crime in North Carolina even if part of the crime occurred elsewhere, as long as at least one of the essential acts forming the crime occurred in North Carolina, and the person “has not been placed in jeopardy for the identical offense in another state.” Slip Op. at 5, quoting G.S. 15A-134. The court then moved to defendant’s arguments that he did not possess or transport the drugs while in North Carolina so he could not be charged with trafficking by possession or trafficking by transportation.

Although defendant did not have actual possession of the drugs in North Carolina, the court noted that the “knowing possession” element of trafficking by possession could also be shown by proving that “the defendant acted in concert with another to commit the crime.” Slip Op. at 6, quoting State v. Reid, 151 N.C. App. 420, 428 (2002). Along with the evidence in the current case showing the defendant acted in concert with his associate, the trafficking charge required showing that defendant was present when the offense occurred. Here, after exploring the applicable case law, the court found that defendant was “constructively present” because, although “parties in the present case were a few miles away from each other, they were not so far away that defendant could not render aid or encouragement [to his associate].” Id. at 11.

Moving to the trafficking by transportation charge, the court noted that “[a]s with trafficking by possession, ‘trafficking by transport can be proved by an acting in concert theory.’” Id. at 13, quoting State v. Ambriz, 880 S.E.2d 449, 459 (N.C. App. 2022). The court explained that “[f]or the same reasons we hold that defendant’s motion to dismiss the trafficking by possession charge was properly denied, we also hold that the motion to dismiss the trafficking by transportation charge was properly denied.” Id.

(1) Showing eyewitness a single picture of defendant during trial preparation conference was impermissibly suggestive but did not create substantial likelihood of irreparable misidentification; (2) showing witness the single picture of defendant was not a lineup or show-up for EIRA purposes; (3) allowing the jury to consider a picture admitted for illustrative purposes as substantive evidence did not represent plain error; (4) trial court erred by sentencing defendant for both selling and delivering cocaine during the same transaction.

State v. Morris, COA22-3, ___ N.C. App. ___ (March 7, 2023). In this Duplin County case, defendant appealed his convictions for sale and delivery of cocaine, arguing error (1) in denying his motion to suppress certain eyewitness testimony for due process violations, (2) denying the same motion to suppress for Eyewitness Identification Reform Act (“EIRA”) violations, (3) in permitting the jury to examine evidence admitted for illustrative purposes only, and (4) in entering judgment for both selling and delivering cocaine. The Court of Appeals affirmed the denial of defendant’s motion and found no plain error with the jury examining illustrative evidence, but remanded for resentencing due to the error of sentencing defendant for both the sale and delivery of cocaine.

In December of 2017, the Duplin County Sheriff’s Office had confidential informants performing drug buys from defendant in a trailer park. The informants purchased crack cocaine on two different days from defendant, coming within three to five feet of him on clear days. At a trial preparation meeting in October of 2020, the prosecutor and a detective met with the lead informant; at the meeting, the informant saw a DMV picture of defendant with his name written on it, and responded “yes” when asked if that was the person from whom the informant purchased cocaine. No other pictures were shown to the informant at this meeting. Defense counsel subsequently filed a motion to suppress the testimony of the informant based on this meeting, as well as motions in limine, all of which the trial court denied.

The Court of Appeals first considered (1) the denial of defendant’s motion to suppress, where defendant argued that the identification procedure violated his due process rights. The due process inquiry consists of two parts: whether the identification procedure was “impermissibly suggestive,” and if the answer is yes, “whether the procedures create a substantial likelihood of irreparable misidentification” after a five-factor analysis. Slip Op. at 9-10, quoting State v. Rouse, 284 N.C. App. 473, 480-81 (2022). Applying the Rouse framework and similar circumstances in State v. Malone, 373 N.C. 134 (2019) and State v. Jones, 98 N.C. App. 342 (1990), the court determined that “[the informant] seeing the photo of Defendant in the file during the trial preparation meeting was impermissibly suggestive,” satisfying the first part. Id. at 18. However, when the court turned to the five-factor analysis, it determined that only the third factor (accuracy of the prior description of the accused) and the fifth factor (the time between the crime and the confrontation of the accused) supported finding of a due process violation. The court concluded that “[b]ecause there was not a substantial likelihood of irreparable misidentification, the identification did not violate due process.” Id. at 24.

The court also considered (2) defendant’s argument that the EIRA applied and supported his motion to suppress. After reviewing the scope of the EIRA, the court applied State v. Macon, 236 N.C. App. 182 (2014), for the conclusion that a single-photo identification could not be a lineup for EIRA purposes. Slip Op. at 28. The court then considered whether the procedure was a show-up:

In contrast to our longstanding description of show-ups, the procedure here was not conducted in close proximity to the crime and, critically, it was not conducted to try to determine if a suspect was the perpetrator. The identification here took place during a meeting to prepare for [trial]. As a result, the State, both the police and the prosecution, had already concluded Defendant was the perpetrator. The identification acted to bolster their evidence in support of that conclusion since they would need to convince a jury of the same. Since the identification here did not seek the same purpose as a show-up, it was not a show-up under the EIRA.

Id. at 30. The court emphasized the limited nature of its holding regarding the scope of the EIRA, and that this opinion “[did] not address a situation where the police present a single photograph to a witness shortly after the crime and ask if that was the person who committed the crime or any other scenario.” Id. at 32.

Moving to (3), the court rejected defendant’s argument of plain error in allowing the jury to review his DMV photograph as substantive evidence when it was admitted for illustrative purposes, pointing to the “overwhelming evidence” of defendant’s guilt in the record, including other photographs and recordings of defendant. Id. at 34.

Finally, the court considered (4) the sentencing issues by the trial court. Here, the trial court improperly sentenced defendant for both selling and delivering cocaine. The court explained that while “a defendant can be tried for both the sale and delivery of a controlled substance, he cannot be sentenced for ‘both the sale and the delivery of a controlled substance arising from a single transfer.’” Id. at 35, quoting State v. Moore, 327 N.C. 378, 382-83 (1990). This error required remand to the trial court for resentencing in keeping with only one conviction for sale or delivery.

Defendant’s intent to meet with fifteen-year-old before her sixteenth birthday could be inferred from the content of messages and prior conduct, justifying denial of his motion to dismiss.

State v. Wilkinson, COA22-563, ___ N.C. App. ___ (March 7, 2023). In this New Hanover County case, defendant appealed his conviction for soliciting a child by computer, arguing error in denying his motion to dismiss for insufficient evidence. The Court of Appeals found no error.

In 2019, defendant began communicating with a fifteen-year-old girl online. Defendant was aware of her age, but still messaged her regarding sexual activity, and on at least four occasions the girl went to defendant’s house. During these visits, defendant groped and kissed the girl. The FBI received a tip regarding defendant’s behavior and observed a conversation in August of 2019 where defendant messaged the girl on snapchat. Defendant was indicted on several charges related to his contact with the fifteen-year-old, but during the trial moved to dismiss only the charge of soliciting a child by computer. After being convicted of indecent liberties with a child and several over related offenses, defendant appealed the sufficiency of the evidence regarding the soliciting a child by computer charge alone.

Defendant argued that the evidence for soliciting a child by computer was insufficient because the snapchat messages from August of 2019 did not arrange a plan or show a request to meet in person before the fifteen-year-old’s sixteenth birthday. Defendant argued that this evidence failed to prove he intended to “commit an unlawful sex act” as required by G.S. 14-202.3(a). Slip Op. at 4-5. The Court of Appeals disagreed, explaining that although there was no explicit plan to meet in the snapchat messages, defendant’s intent could be inferred from the content of the messages and his previous conduct with the girl when she came to his house. Because defendant’s intent could be inferred regarding the necessary sex act, the court found no error when dismissing defendant’s motion.

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