Preserving Motions to Dismiss for Insufficient Evidence

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 [...]