Case Summaries: N.C. Court of Appeals (May 16, 2023)

Published for NC Criminal Law on May 18, 2023.

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on May 16, 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.

Single taking rule did not bar conviction for both larceny and obtaining property by false pretenses, and the offenses were not mutually exclusive.

State v. White, COA22-369, ___ N.C. App. ___ (May 16, 2023). In this Union County case, defendant appealed his convictions, arguing error in denying his motion to dismiss either the larceny or obtaining property by false pretenses charge under the single taking rule. The Court of Appeals found no error.

In December of 2018, Defendant and two associates were captured on surveillance video at a Wal-Mart, using an empty child car seat box and a plastic bin to remove several thousand dollars’ worth of electronics from a display case. As a part of the scheme to remove the property, defendant and his associates purchased the car seat through a self-checkout line for $89, instead of the true value of the electronics hidden inside. At trial, defendant moved to dismiss the charges against him, a motion the trial court denied. The trial court instructed the jury on felony larceny, conspiracy to commit felony larceny, and obtaining property by false pretenses, and the jury convicted defendant of all three, as well as habitual felony status.

The Court of Appeals first explained that the single taking rule prevents a defendant from being charged multiple times in a single transaction. However, the court noted that “in each of the cases upon which Defendant relies. . . the defendant was charged with either larceny offenses or obtaining property by false pretenses, but not both.” Slip Op. at 7. Previous decisions established that larceny and obtaining property by false pretenses are separate offenses with different elements; in particular, false and deceptive representation is not an element of larceny. As a result, defendant’s apparent purchase of a car seat, when he was actually hiding thousands of dollars of electronics inside, represented a distinguishable offense from larceny, and was not a duplicative charge.

The court also considered defendant’s argument under State v. Speckman, 326 N.C. 576 (1990), that G.S. 14-100(a) requires the trial court to present larceny and obtaining property by false pretenses as mutually exclusive options for conviction. The court rejected this argument, noting that the crime in question for Speckman was embezzlement, which requires first obtaining property lawfully before wrongfully converting it, making it mutually exclusive from obtaining property by false pretenses. Unlike embezzlement, the court explained that “[t]he offenses of larceny and obtaining property by false pretenses are not mutually exclusive, neither in their elements. . . nor as alleged in the instant indictments.” Slip Op. at 11-12.

Indictment for aiding and abetting possession of a firearm by a felon was not fatally defective; sufficient evidence supported the aiding and abetting conviction.

State v. Gunter, COA22-669, ___ N.C. App. ___ (May 16, 2023). In this Cleveland County case, defendant appealed his conviction for aiding and abetting possession of a firearm by a felon, arguing a fatally defective indictment and error in dismissing his motion to dismiss for insufficient evidence. The Court of Appeals disagreed on both points and found no error.

Detectives in an unmarked vehicle observed a black pickup truck swerve left of the center line several times while driving, and initiated a traffic stop. Defendant was seated in the passenger seat of the truck when the detectives approached. The driver of the vehicle was known to be a felon by the detectives, and they conducted Terry frisks of defendant and the driver of the truck, finding .32 caliber ammunition in the pocket of the driver. After finding the ammunition, the detectives searched the truck, finding a handgun inside the glovebox and another hidden under the center seat, as well as magazines and ammunition around the vehicle.

Reviewing defendant’s challenge to the indictment, the Court of Appeals first explained the necessary elements of aiding and abetting another person in a crime, and the then the necessary elements of possession of a firearm by a felon. Turning to the text of the indictment, the court found all the necessary elements for the crime, overruling defendant’s argument.

The court next looked to the sufficiency of the evidence, explaining that defendant argued no proof of his intent to commit the crime, even though the elements of the offense do not include an intent requirement, because the indictment referenced his knowledge of the driver’s prior felony conviction. Looking at the evidence in the record, the court found sufficient evidence that defendant provided a firearm to the driver of the vehicle, and that defendant was aware of the driver’s prior felony conviction. This led the court to conclude sufficient evidence existed to support the conviction.

State presented insufficient evidence that passenger in the front seat of a vehicle with other occupants had constructive possession of firearm found in the back seat.  

State v. Sharpe, COA22-491, ___ N.C. App. ___ (May 16, 2023). In this Nash County case, defendant appealed his conviction for possession of a firearm by a felon, arguing insufficient evidence to establish his constructive possession of the firearm. The Court of Appeals agreed, reversing and remanding for resentencing.

In May of 2020, a problem oriented policing team was attempting to prevent retaliatory shootings by locating individuals that may have been involved in the incidents, and defendant was identified as one person possibly involved. Officers located a vehicle with defendant inside and initiated a traffic stop; defendant was in the front passenger seat of the vehicle. After the stop, defendant exited the vehicle and went inside a gas station, where he resisted being frisked, leading to the officers tasing him and detaining him in the police car. Searching the vehicle, the officers found a rifle in the backseat and ammunition between the driver and passenger seats. No DNA or fingerprints were taken from the firearm. At trial, defendant testified that the vehicle was his mothers, and he was not allowed to drive it because he did not have a license. Defendant also called a witness who testified that he was another passenger in the vehicle and the firearm was his. Despite the testimony, defendant was convicted of resisting a public officer and possession of a firearm by a felon, and he appealed the firearm charge.

On appeal, the Court of Appeals first noted that to establish constructive possession, the prosecutor was required to prove that defendant had the “’power and intent to control’ the disposition or use of the firearm.” Slip Op. at 6, quoting State v. Taylor, 203 N.C. App. 448 (2010). Here, the state attempted to show this by first arguing that defendant was the custodian of the vehicle, pointing to State v. Mitchell, 224 N.C. App 171 (2012). The court did not agree with this analysis, examining the relevant caselaw and concluding that “under our existing case law, the driver was also a custodian of the vehicle.  As such, the evidence fails to show Defendant was in exclusive possession of the vehicle at the time the rifle was found.” Slip Op. at 9. The court looked for additional incriminating circumstances that could link defendant to constructive possession of the firearm, but found none, concluding “the evidence, without more, is not sufficient to support a finding Defendant, while seated in the front passenger seat and one of four occupants, was in constructive possession of a firearm found in the rear passenger compartment of a vehicle not owned or operated by Defendant.” Id. at 12.

Admission of defendant’s text message conversations with a prior girlfriend represented improper character evidence and was plain error.

State v. Reber, COA22-130, ___ N.C. App. ___ (May 16, 2023). In this Ashe County case, defendant appealed his convictions for rape and sex offense with a child, arguing plain error in the admission of two text message conversations with a woman that were improper character evidence. The Court of Appeals agreed, reversing and remanding for a new trial.

In August of 2021, defendant came to trial for four counts of rape and six counts of sex offense with a child based upon conduct that allegedly occurred between him and the daughter of a couple he knew well. At trial, defendant was questioned about his prior sexual relationships with adult women and several text message conversations during cross-examination. In particular, the prosecutor asked about a text message exchange where defendant’s adult girlfriend admitted to being too drunk to remember a sexual encounter. Defendant was also questioned about another exchange where defendant and his girlfriend were attempting to find a place to engage in sexual activity as defendant lived with his grandparents and could not have girlfriends spend the night. Defendant texted his girlfriend that he hoped his daughter (who was not the child allegedly abused) would not tell his grandparents, but that she had a big mouth.

On appeal, the Court of Appeals agreed with defendant’s argument that the admission of these text message exchanges was plain error. The court explained that this evidence showing defendant’s past sexual relationship was unrelated to his alleged abuse of the child in question, and inadmissible for any Rule of Evidence 404(b) purpose. The court noted there was no similarly in how the crimes and the Rule 404(b) offenses occurred other than they both involved sexual intercourse. The events took place in dissimilar locations, and the charges did not involve the consumption of alcohol or drugs with the child. The court also noted the exchange regarding defendant’s daughter was not sufficiently similar to defendant allegedly asking the victim not to reveal sexual abuse. The court explained:

Here, the evidence portraying Defendant as manipulative by (1) engaging in sexual intercourse with a woman who had been drinking alcohol, and (2) for contemplating asking his daughter to not share his plans to meet a girlfriend at a motel so they could engage in sexual intercourse is highly prejudicial and impermissibly attacked Defendant’s character.

Slip Op. at 18. Examining the other evidence in the case, the court concluded that due to the disputed nature of the allegations, the outcome depended on the perception of truthfulness for each witness, and the improperly admitted evidence had a probable impact on the jury’s finding of guilty. The court also found that closing argument remarks by the prosecutor regarding defendant’s sexual history were highly prejudicial and “the trial court erred by failing to intervene ex mero motu in response to the grossly improper and prejudicial statements.” Id. at 25.

Judge Dillon dissented by separate opinion, and would have held that defendant failed to show reversible error.

State’s disclosure of discovery material on second day of trial did not justify mistrial; defense counsel’s statements in closing argument did not represent Harbison error.

State v. Mahatha, COA20-656, ___ N.C. App. ___ (May 16, 2023). In this Guilford County case, defendant appealed his convictions for communicating threats and assault charges, arguing abuse of discretion in denying his motion for a mistrial based on the late disclosure of discoverable material, and ineffective assistance of counsel by implicitly conceding guilt. The Court of Appeals found no abuse of discretion or error.

Defendant came to trial in February of 2020 for charges related to a dispute with his girlfriend regarding access to her phone. On the Thursday before the trial, the state provided a set of body camera videos. On the first day of trial, the state provided additional photographs of the crime scene and injuries after they were mislabeled with the wrong case number. And on the second day of trial, the state provided a set of 29 phone call recordings from defendant while he was in jail. Defense counsel only raised a discovery objection to the phone call recordings produced on the second day of trial. The trial court denied the motion and allowed the state to play one of the recorded calls for the jury. At the close of state’s evidence, defendant moved for a mistrial based on the discovery violations. The trial court denied the motion.

On appeal, the Court of Appeals first noted that the right to a mistrial was not automatic, and that a mistrial was one of several sanctions permitted under G.S. 15A-910 for failure to comply with required disclosures, all of which are discretionary. Because defense counsel only objected to the phone call recordings, that was the only evidence considered by the court when reviewing the motion for mistrial. The court noted that defense counsel could not identify any element of the calls which would have been exculpatory for defendant. Additionally, the court noted that G.S. 15A-910 did not establish any other basis for granting the mistrial or finding an abuse of discretion.

Turning to defendant’s ineffective assistance of counsel claim, the court noted that the standards from State v. Harbison, 315 N.C. 175 (1985), applied to defendant’s claim regarding admission of guilt, and that State v. McAllister, 375 N.C. 455 (2020), showed implied concessions of guilt may rise to the level of a Harbison error. However, the court explained that implied concessions of guilt must be based on statements that “cannot logically be interpreted as anything other than an implied concession of guilt.” Slip Op. at 16-17, quoting McAllister. The court did not find that logical conclusion from either of the statements pointed to by defendant as indicative of error. Instead the court distinguished the statements from the McAllister examples, finding no Harbison error.

Sufficient circumstantial evidence supported defendant’s conviction for second-degree murder.

State v. Wilkie, COA22-94, ___ N.C. App. ___ (May 16, 2023). In this Randolph County case, defendant appealed his conviction for second-degree murder, arguing error in denying his motion to dismiss due to no direct evidence he shot the victim. The Court of Appeals found no error.

Defendant was indicted for first-degree murder for the killing of another dump truck driver from the dump site where defendant worked. The jury ultimately convicted defendant of second-degree murder. On appeal, defendant argued that no direct evidence supported the conviction, and the circumstantial evidence was not sufficient to support his conviction. The Court of Appeals disagreed, noting extensive circumstantial evidence that defendant knew and worked with the victim, was seen with the victim shortly before the killing, and defendant was found next to the truck containing the victim with a gun. The court explained “[t]he State was not required to produce an eyewitness to the shooting or physical evidence linking Defendant to the gun as Defendant implies, considering the other substantial evidence.” Slip Op. at 5.

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