Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 11/08/2024
E.g., 11/08/2024

In this Durham County case, the Supreme Court modified and affirmed the Court of Appeals opinion denying defendant’s appeal of the revocation of his probation after a hearing. 

Defendant was placed on probation in 2015 for discharging a weapon into occupied property and possession of a firearm by a convicted felon. Probation reports filed in 2017 alleged that defendant violated the terms of probation by committing new criminal offenses. The new criminal offenses were 2016 charges of possession of a firearm by a felon and carrying a concealed weapon that arose from a traffic stop. When the 2016 firearm charges went to trial, defendant filed a motion to suppress evidence obtained through the traffic stop; the trial court denied that motion, but the jury did not reach a unanimous verdict, resulting in a mistrial on July 14, 2017. Subsequently the probation violations went to hearing on September 14, 2017, and the State sought to admit the order from the motion to suppress over the objection of defense counsel. Notably, defense counsel did not attempt to call the arresting officer to testify or request that he otherwise remain available to testify at the probation hearing. When the trial court admitted the order, the court also admitted the hearing transcript with the arresting officer’s testimony, and at the conclusion of the probation hearing the court found defendant had committed the violations and revoked defendant’s probation. 

On appeal, defendant argued that admission of the transcript with testimony from the arresting officer deprived him of his right to confront and cross-examine witnesses against him. Examining defendant’s appeal, the Supreme Court explained that “a probation revocation proceeding is not a criminal trial,” and defendant was not entitled to the full Sixth Amendment rights afforded in a criminal prosecution. Slip Op. at ¶13. Instead, defendant was entitled to a more limited set of rights for probation revocation hearings. Slip Op. at ¶14, quoting Black v. Romano, 471 U.S. 606, 612 (1985). The court noted that traditional rules of evidence do not apply, and N.C.G.S. § 15A-1345(e) establishes the procedural requirements for a probation revocation hearing. Slip Op. at ¶15. In particular, N.C.G.S. § 15A-1345(e) provides that defendant “may confront and cross-examine adverse witnesses unless the court finds good cause for not allowing confrontation.” However, defendant’s objection during the probation hearing was not because of his inability to cross-examine the arresting officer, but instead because the order on the motion to suppress was irrelevant since the jury did not convict defendant of the crimes. Slip Op. at ¶19. 

Because defendant’s objection was not clearly about confrontational rights, and defendant never attempted to actually confront or cross examine the arresting officer at the probation hearing, the Supreme Court found that he failed to preserve the issue on appeal. Further, the court noted that this was not a situation where a statutory mandate would preserve the objection, because the “plain language of N.C.G.S. § 15A-1345(e) contains a conditional statutory mandate which means normal rules of preservation apply unless the trial court fails to make a finding of good cause when the court does not permit confrontation despite a defendant’s request to do so.” Slip Op. at ¶26. The trial court never received a request for confrontation, and never indicated that it would not permit confrontation or examination, meaning no finding of good cause was necessary.  

Justice Earls dissented from the majority opinion. 

The defendant worked full-time at Knightdale High School, initially as an In-School Suspension teacher and then as a Physical Education teacher. Although not certified as a teacher, he worked the same hours as a certified teacher, which included a regularly scheduled planning period. During his time teaching at the school, the defendant met a minor, D.F., a student at the school. On October 29, 2014, D.F. went to the defendant’s home and later alleged the two engaged in sexual activity.

The defendant was indicted for two counts of engaging in sexual activity with a student pursuant to G.S. 14-27.7. At the close of the State’s evidence, defense counsel made a motion to dismiss based on insufficient evidence, asserting that the State’s evidence was conflicting. The trial court denied the motion. At the end of all the evidence, defense counsel renewed the motion to dismiss, asserting that there was no physical evidence. The trial court again denied the motion, and the defendant was ultimately convicted of two counts of sexual activity with a student.

(1) On appeal, the defendant argued that (1) the evidence at trial did not establish that he was a “teacher” within the meaning of G.S. 14-27.7, and (2) alternatively, there was a fatal variance between the indictment and proof at trial since the indictment alleged that he was a “teacher,” but his status as a substitute teacher made him “school personnel” under G.S. 14-27.7(b). The Court of Appeals concluded that the defendant failed to preserved either argument for appellate review, reasoning that because the defendant’s motions to dismiss “focused on the veracity of D.F.’s testimony and the lack of physical evidence” that sexual conduct had occurred, the defendant preserved a sufficiency of the evidence argument for only that specific element. The Court of Appeals also concluded that the fatal variance argument was not preserved because it was not expressly presented to the trial court.

At the time that the Court of Appeals decided this case, the Supreme Court has not addressed the issue of when a motion to dismiss preserves all sufficiency of the evidence issues for appellate review. Subsequently, in State v. Golder, the Court held that “Rule 10(a)(3) provides that a defendant preserves all insufficiency of the evidence issues for appellate review simply by making a motion to dismiss the action at the proper time.” 374 N.C. 238 (2020). The Court held that because the defendant here made a general motion to dismiss at the appropriate time and renewed that motion to dismiss at the close of the evidence., his motion properly preserved all sufficiency of the evidence issues.

(2) On the merits of the case, the defendant argued that there was no substantial evidence that he was a “teacher” under the statute. G.S. 14-27.7(b) (2013) provides: “For purposes of this subsection, the terms “school”, “school personnel”, and “student” shall have the same meaning as in G.S. 14-202.4(d),” which in turn refers to G.S. 115C-332. The latter statute provides that “school personnel” includes substitute teachers, driving training teachers, bus drivers, clerical staff, and custodians. The Court determined that it was “evident that the General Assembly intended to cast a wide net prohibiting criminal sexual conduct with students by any adult working on school property” and that “a person’s categorization as a ‘teacher’ should be based on a common-sense evaluation of all of the facts of the case, not a hyper-technical interpretation based solely on the individual’s title.”

Despite his lack of certification, defendant was at the school on a long-term assignment, an employee of Wake County Public Schools, and held to the same standards as a certified teacher. Defendant taught at the school daily, had a planning period, and had full access to students as any certified teacher would. The only difference between the defendant and other teachers was his title based on his lack of a teaching certificate at that time. The Court held that the defendant was correctly deemed a teacher in this case and the trial court properly denied the defendant’s motion to dismiss.

In a case involving charges of possession of a firearm by a felon and possession of a weapon on educational property, the defendant failed to preserve for appellate review his argument that the trial court erred by denying his pretrial suppression motions related to the lawfulness of a traffic stop and a subsequent weapons frisk.  At trial, the defendant objected to an officer’s testimony regarding the officer’s discovery of a handgun in the defendant’s pocket, but the defendant did not move to strike the testimony.  Citing precedent with regard to situations where the inadmissibility of testimony is not indicated by a question but becomes apparent by some feature of a witness’s answer, the court stated that the “[d]efendant was obligated to move to strike [the officer’s] answer after objecting for the record and before the jury to preserve his objection.”  Because he did not move to strike at trial or specifically argue plain error on appeal, the defendant failed to preserve his arguments concerning the admission of evidence about the handgun.

The court went on to reject the defendant’s argument that his trial counsel was ineffective during the pretrial hearing on the suppression motion related to the weapons frisk.  During that hearing, defense counsel expressed the view that the officer had the reasonable and articulable suspicion necessary to conduct a frisk upon seeing a bulge in the defendant’s pocket while arguing that the officer unlawfully had decided to conduct the frisk prior to seeing the bulge.  Noting that the defendant could not show prejudice and that the trial court did not rely on defense counsel’s statement when ruling on the motion, the court overruled the defendant’s IAC argument.

The defendant was convicted of trafficking in opium or heroin. He argued on appeal that the trial court committed plain error by allowing the State to introduce into evidence the drugs found in his vehicle. The Court of Appeals concluded that the defendant waived appellate review of this claim because he did not move before the trial court to suppress evidence of the hydrocodone tablets and there was no suppression hearing. In such circumstances, the appellate court lacks the fully developed record necessary to conduct plain error review.

The Court of Appeals further held that the trial court improperly imposed attorney’s fees and an attorney-appointment fee against Defendant without providing him with notice and an opportunity to be heard. Thus, the court vacated the civil judgments imposing attorney’s fees and the attorney-appointment fee, and remanded for further proceedings.

The defendant in this case was not a licensed bondsman, but over a period of five to six years he paid an employee at the clerk’s office to make entries into a computer record system indicating that the defendant had filed motions to set aside the bond forfeiture in numerous cases, even though no motions had been filed. Since no motions were actually filed or served on the district attorney or board of education, neither agency was on notice to file a response within the statutorily required 20-day period, meaning the bond forfeitures would be set aside automatically. The clerk was eventually fired for his role in the scheme and began cooperating with the State Bureau of Investigation. The defendant was ultimately convicted of aiding and abetting obtaining property by false pretenses, accessing a government computer, and altering court records, as well as unlicensed bail bonding.

On appeal, the defendant argued that the trial court erred in denying his motions to dismiss on the grounds that the state had failed to present sufficient evidence that he (i) aided and abetted the commission of the felony offenses, or (ii) obtained property in excess of $100,000, since at the time the false representations were made the interests of the state and the school board in the bonds to be forfeited were only speculative. The Court of Appeals rejected both arguments, finding that they were not properly preserved at trial. The aiding and abetting argument was never specifically raised in the defendant’s motions, and while the defendant did raise the property argument in his first motion to dismiss, his later motion to dismiss at the close of all the evidence only challenged the dollar value of the property rather than the issue of whether it qualified as a thing of value at all, so the court ruled that the second argument was likewise barred on appeal.

The North Carolina Supreme Court disagreed and held that the defendant properly preserved both arguments for appeal. Distinguishing objections and constitutional challenges which must be specifically argued at trial to be preserved, the arguments challenging the sufficiency of the evidence in this case were properly preserved under Rule 10(a)(3) of the Rules of Appellate Procedure. A motion to dismiss “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,” so the “simple act of moving to dismiss at the proper time preserved all issues related to the sufficiency of the evidence for appellate review.” The jurisprudence of the Court of Appeals that has attempted to distinguished between general and specific motions to dismiss for sufficiency of the evidence “and to assign different scopes of appellate review to each category, is inconsistent with Rule 10(a)(3).”

Turning to the merits of the defendant’s arguments, the court held that the state presented sufficient evidence to withstand a motion to dismiss on both issues. First, viewed in the light most favorable to the state, the evidence established that the defendant aided and abetted the clerk’s actions by meeting with him and agreeing to the scheme, sending him text messages with instructions and case names, and paying him for entering the fraudulent motions. Second, G.S. 14-100 covers both obtaining and attempting to obtain a thing of value, so the defendant’s efforts to reduce the amount he would have to pay on the forfeited bonds constituted a “thing of value” within the broad scope of the statute.

(1) At his trial for habitual DWI, the defendant took the stand, denied driving, and admitted his prior DWI convictions in explaining why he did not drive on the night in question and why, based on his past interactions with law enforcement, he did not speak to the arresting officers. On cross-examination, the State asked the defendant about the offense, date, and place of each of those convictions. The defendant asked the trial judge to instruct the jury pursuant to North Carolina Pattern Jury Instruction 105.40, which instructs that the jury should not consider a defendant’s prior convictions as evidence of the defendant’s guilt in the current case. The trial judge refused to give the instruction. Relying on State v. Jackson, 161 N.C. App. 118 (2003), the Court of Appeals found no error. Per that opinion, a defendant is not entitled to a special instruction instructing the jury to consider a defendant’s testimony about prior convictions for purposes of the defendant’s credibility only, where the defendant initially offers the testimony on direct examination. The Court held that the State’s cross-examination of the defendant in this case was limited and did not constitute sufficient impeachment to require the instruction. The Court rejected the defendant’s argument that it should reconsider Jackson, finding that it was bound by the prior decision. (2) Before his first trial on the habitual DWI charge, the defendant moved for and the trial judge conducted an in camera review of the arresting officers’ personnel records. The trial judge denied release, finding no favorable and material evidence, and the Court of Appeals upheld the denial in an unpublished opinion. On appeal in this case, the defendant asked the Court of Appeals to review the records, which the trial judge had placed under seal at the first trial. The Court of Appeals held that the defendant failed to preserve the issue for appeal, having failed to make any motion asking the trial judge to review the records before his second trial. The Court stated that a mistrial has the legal effect of no trial. Therefore, the defendant could not rely on a motion made at his first trial to preserve issues for appeal at his later trial.

In this Duplin County case, the defendant was convicted by a jury of financial card fraud, obtaining property by false pretenses, identity theft, and habitual felon. She appealed, arguing that her motion to dismiss for insufficiency of the evidence should have been granted as to the identity theft and that she received ineffective assistance of counsel. The Court of Appeals unanimously affirmed.

(1) The evidence showed that the defendant used the credit cards of two other people to make purchases for herself, representing herself as the owner of the cards. The defendant eventually admitted to police that she used the credit cards and provided a full written confession. At the close of evidence, the defendant asked the trial court to dismiss two (of six) counts of identity theft regarding Victim #1 based on a lack of proof that the defendant acted without that victim’s permission. On appeal, the defendant challenged all six identity theft convictions, contending that there was no evidence she meant to represent herself as the two victims. This was a different argument than the one made to the trial court and was not preserved under State v. Walker, 252 N.C. App. 409 (2017) (holding that, without a “global” motion to dismiss, sufficiency arguments not raised in the trial court are waived on appeal).

Defendant failed to preserve any argument as to the four charges of identity theft pertaining to [Victim #2]. Likewise, the defendant failed to preserve the specific argument—that there was insufficient evidence that Defendant intended to represent that she was [Victim #1]. We thus decline to reach the merits of her argument.

The court declined to invoke its discretionary authority under Rule 2 of the Appellate Rules of Procedure to consider the unpreserved arguments.

(2) The defendant argued that she received ineffective assistance of counsel based on her trial lawyer’s failure to preserve the above issues, arguing that the motion to dismiss for insufficiency would have been granted if had her trial lawyer made the argument. While ineffective assistance claims should normally be litigated through a motion for appropriate relief, here, the “cold record” was sufficient to allow appellate review of the claim. The defendant’s argument that the State failed to present evidence that she represented herself as the victims was meritless under State v. Jones, 367 N.C. 299, 304 (2014) (rejecting interpretation of identity theft statute to require use of the victim’s name, which would cause “absurd” results). The defendant’s use of the victims’ credit card numbers was sufficient “identifying information” under the statute and it was not error for defense counsel to fail to make this argument. The defendant did not therefore receive ineffective assistance of counsel.

(3) The trial court instructed the jury on false or conflicting statements of the defendant under N.C. P. I.—Crim. 105.21. The defendant originally told police that an ex-boyfriend was responsible for the fraud before later admitting to the conduct. On appeal, she argued that this instruction to the jury prejudiced her trial by impugning her character. The court disagreed.

[This] instruction is proper not only where defendant’s own statements contradict each other but also where the defendant’s statements flatly contradict relevant evidence. The instruction is in appropriate if it fails to make clear to the jury that the falsehood does not create a presumption of guilt.

The statements of the defendant to law enforcement were contradictory and conflicting, “tending to reflect the mental processes of a person possessed of a guilty conscience seeking to divert suspicion and to exculpate [her]self.” The instruction was given in accordance with the considerable warnings in the commentary to that pattern instruction, was supported by the evidence, and was therefore proper under these facts.  

The defendant was charged with solicitation to commit first-degree murder after he asked someone he met through a mutual acquaintance (“Edwards”) to murder his wife for money. After repeated requests from the defendant over the next few days, Edwards contacted law enforcement and assisted their investigation by wearing recording equipment at a subsequent meeting with the defendant to discuss details of the murder. The defendant was indicted for solicitation to commit first-degree murder, and after being convicted at a jury trial he was sentenced for a Class C offense. On appeal, the defendant argued that he was sentenced incorrectly because the jury was only instructed on solicitation to commit “murder.” The jury was not asked to make any special findings regarding the level of malice it found regarding the crime solicited. Therefore, the defendant argued that he should have been convicted of soliciting only the lowest possible level of any form that offense (second-degree murder punished as Class B2 offense). Pursuant to G.S. 14-2.6(a), a solicitation to commit a B2 offense would be punished as a Class D felony, rather than as Class C felony for soliciting a Class A or B1 offense. The appellate court disagreed, noting that “Defendant creatively sidesteps the fact that he was not charged with murder, but with solicitation to commit murder. The jury was not required to find any of the elements of murder. As previously explained, one may be guilty of solicitation regardless of whether the solicited crime—murder, in this case—actually occurs. […] The crime was in the asking.” Rather than alleging a sentencing error, the defendant’s appeal was really an argument against the sufficiency of the jury instructions. However, since the defendant did not object and raise that issue at trial, nor did he allege plain error on appeal, the issue was not properly before the court. “In that Defendant’s entire appeal was predicated on an unpreserved issue and he failed to request plain error review, his conviction and subsequent sentence shall remain undisturbed.”

On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 813 S.E.2d 463 (2018), the court held that although the defendant failed to preserve his argument that the trial court erred by imposing lifetime SBM without determining whether the monitoring was a reasonable search under the Fourth Amendment, the Court of Appeals did not abuse its discretion by invoking Appellate Rule 2 to review the unpreserved constitutional issue. The Court of Appeals concluded that the defendant properly preserved the issue of whether his SBM was reasonable under the Fourth Amendment and that alternatively, if the defendant had failed to preserve the issue, it would invoke Rule 2 to relax Rule 10’s issue preservation requirement and review the claim on the merits. The Court of Appeals then vacated the SBM order without prejudice to the State’s ability to file a subsequent SBM application. The Supreme Court held that because the defendant failed to object to the SBM order on Fourth Amendment constitutional grounds with the requisite specificity, he waived the ability to raise that issue on appeal. However, the Court of Appeals did not abuse its discretion by invoking Appellate Rule 2 to review the unpreserved argument. In this respect the court found it significant that the State conceded that the trial court committed error relating to a substantial right.

In this drug case, the defendant failed to preserve her argument that the trial court erred by failing to sua sponte conduct a hearing to confirm that the defendant’s in-custody statements to law enforcement were knowing and voluntary. The defendant did not move to suppress the statements before or at any time during trial. When the State first asked about the statements at trial, defense counsel stated “objection.” The trial court overruled the objection, and defense counsel said nothing more. When no exception to making a motion to suppress before trial applies, a defendant’s failure to make a pretrial motion to suppress waives any right to contest the admissibility of evidence at trial on constitutional grounds. Thus, the trial court properly overruled the defendant’s objection as procedurally barred.

In this indecent liberties case, the defendant waived any right of appellate review with respect to his arguments challenging admission of his inculpatory statements (he had asserted a Miranda violation and that the statements were involuntary). The defendant has the burden of establishing that a motion to suppress is made both timely and in proper form. Here, the defendant failed to meet that burden and thus waved appellate review of these issues. The court continued, however, holding that the record was insufficient to consider the defendant’s related ineffective assistance of counsel claim, and dismissed that claim without prejudice to the defendant’s right to file a motion for appropriate relief in superior court.

State v. Conley, 264 N.C.App. 85, 825 S.E.2d 10 2019-02-19 aff'd on other grounds, 264 N.C.App. 85, 825 S.E.2d 10 (Apr 3 2020)

Because the defendant failed to present his constitutional double jeopardy argument before the trial court, it was not properly preserved for appellate review. The defendant was found guilty of, among other things, five counts of possession of a gun on educational property. On appeal the defendant argued that the trial court erred by entering judgment on five counts of possession of a gun on educational property, asserting that double jeopardy bars entry of judgment on more than one count when there is simultaneous possession of guns. The court held that the issue was not preserved and declined the defendant’s request that it invoke Rule 2 of the Rules of Appellate Procedure to consider the issue.

The court per curiam affirmed a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 817 S.E.2d 833 (2018), in which the court declined the defendant’s request to grant his petition for writ of certiorari to review the trial court’s order requiring him to enroll in lifetime SBM. The defendant argued that the trial court erred by ordering him to submit to SBM without first making a reasonableness determination as required by Grady. The defendant conceded that he failed to make his constitutional argument at trial and that his appeal from the SBM order was untimely.

On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 806 S.E.2d 682 (2017), the court modified and affirmed the decision below, holding that the defendant waived her Eighth Amendment sentencing argument by failing to raise it before the sentencing court and that although her non-constitutional sentencing issues were preserved for review despite her failure to object at trial, they are without merit. The defendant was convicted of 3 counts of drug trafficking; she was sentenced to a minimum of 70 months in prison on each count, with the sentences for two counts to be served concurrently and the third sentence to be served consecutively to the first two. The defendant appealed asserting, in relevant part, that the sentencing judge improperly overruled another judge’s safekeeping order; that the trial court abused his discretion in imposing consecutive sentences on an elderly first offender for a single drug transaction; and that the sentences are grossly disproportionate in violation of the Eighth Amendment. The Court of Appeals found no error, concluding that the defendant failed to preserve her arguments as required by Appellate Rule 10(a)(1). The Supreme Court allowed discretionary review.

          The Supreme Court noted that, as a general matter, Rule 10 requires parties to take action to preserve an issue for appeal. It further noted its decision in State v. Canady, 330 N.C. 398, 410 S.E.2d 875 (1991), inspired a series of decisions by the Court of Appeals holding that Rule 10(a)(1) does not apply to sentencing errors. The court determined that “[t]o derive such a categorical rule from Canady, however, one must ignore the opinion’s rationale.” It explained that in Canady, it determined that the purpose of the rule is to require a party to call an issue to the trial court’s attention before the party can assign error to the matter on appeal. Canady determined that the rule discourages gamesmanship; a party cannot simply allow something to happen at trial as a matter of trial strategy and then assign error to the matter if the strategy does not pan out. Rather than create a categorical rule, the court explained that in Canady it found that the danger of gamesmanship was not present and held that no contemporaneous objection was required to preserve the issue for appellate review in that case. Here, defense counsel asked that all three sentences be consolidated, noting the defendant’s advanced age, poor health, and clean criminal record. The judge however consolidated only 2 of the 3 sentences. Here, the sentencing court knew that the defendant sought the minimum possible sentence, and the defendant was not required to voice to contemporaneous objection to preserve this issue for appellate review. The court further found that the defendant’s sentencing issues were preserved by statute. Specifically, G.S. 15A-1446(d) provides that certain issues are appealable without preservation, including an argument that the sentence imposed was unauthorized at the time, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as a matter of law.

          Having found that the Court of Appeals erred by declining to address the defendant’s sentencing arguments, the court went on to find them to be meritless. With respect to the safekeeping order, neither that order nor the judge’s oral remarks when it was imposed indicate that the judge intended to retain jurisdiction over the matter or to delay sentencing; in fact his oral remarks and written order indicate awareness that the defendant might be sentenced by some other judge. The court also rejected the defendant’s argument that the trial court abused its discretion in imposing her sentence and her suggestion that the trial court must have been influenced by the defendant’s decision to take her case to trial. The court found that this conclusory accusation lacked any support in the record.

         Having found that the defendant’s non-constitutional sentencing issues were preserved without contemporaneous objection consistent with Canaday and G.S. 15A-1446(d), the court found that the defendant’s constitutional argument was not so preserved. Rule 14(b)(2) of the Rules of Appellate Procedure requires that a constitutional issue must be timely raised in the trial court in order to be preserved for appellate review. Because the defendant failed to argue to the sentencing court that the sentence imposed violated the Eighth Amendment, she may not raise that argument on appeal.

The defendant failed to preserve for appellate review his argument that the trial court erred by admitting 404(b) evidence. The defense objected to the witness’s testimony outside the presence of the jury and before the witness was sworn. After a voir dire, the trial court overruled the defendant’s objection. The jury then was called back to the courtroom and the witness testified without objection. As such, the defendant failed to preserve the issue.

(1) By failing to raise the argument at trial, the defendant failed to preserve for appellate review the argument that the trial court erred by failing to require the State to file a written pretrial motion to suppress or motion in limine to exclude the testimony of a defense witness.

(2) By failing to raise a confrontation clause issue at trial, the defendant failed to preserve the issue for appeal.

In this drug case the defendant was not entitled to appellate review of whether the trial court erroneously admitted hearsay evidence. The defendant failed to demonstrate that any “judicial action” by the trial court amounted to error where he not only failed to object to admission of the statement, but also expressly consented to its admission. Even if error occurred, G.S. 15A-1443(c) (a defendant is not prejudiced by an error resulting from his own conduct) precludes a finding of prejudice. Here, by asking about the statement during cross-examination of the State’s witness, defense counsel opened the door to the State’s subsequent questions concerning the statement and its introduction.

The defendant failed to properly preserve the argument that there was a fatal variance between a drug trafficking indictment and the evidence at trial, where the issue was raised for the first time on appeal. The defendant never alleged a fatal variance when he moved to dismiss the charge. Rather, his motion was based on insufficiency of the evidence.

The defendant’s failure to object at trial to the admission of evidence encompassed by a separate motion to suppress, along with his failure to argue plain error constituted a failure to preserve review of that motion on appeal.

Because the defendant failed to raise at trial the constitutional argument that prosecutorial misconduct deprived him of a fair trial, it was not preserved for appellate review.

The court dismissed the defendant’s assertion that the trial court erred in its jury instructions for the offense of assault by pointing a gun, finding that the defendant failed to properly preserve this issue for appellate review by lodging objection at trial and failed to specifically and distinctly allege plain error on appeal.

The defendant failed to preserve for appellate review his claim that the trial court erred by requiring him to enroll in satellite-based monitoring (SBM). The defendant asserted that the State failed to meet its burden of proving that imposing SBM is reasonable under the fourth amendment. Because the defendant raised no fourth amendment objection at the SBM hearing and the issue was not implicitly addressed or ruled upon by the trial court, it was not preserved for appellate review. In its discretion, the court declined to grant review under Rule 2, reasoning that the law was well-established at the time of the hearing and the State was not on notice of the need to address Grady issues due to the defendant’s failure to raise the constitutional issue.

On appeal from a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 795 S.E.2d 374 (2016), the court reversed, holding that the defendant’s Fourth Amendment claims regarding the traffic stop are not reviewable on direct appeal, even for plain error, because the defendant waived them by not moving to suppress the evidence discovered during the stop before or at trial. The defendant did not move to suppress the evidence before or at trial, but instead argued for the first time on appeal that the seizure of the evidence—here cocaine--resulted from various Fourth Amendment violations. Deciding this issue of first impression, the court held that plain error review is not available when a defendant has not moved to suppress at the trial level. It noted that when a defendant does not move to suppress in the trial court, the evidentiary record pertaining to the suppression issue is not fully developed, and may not be developed at all. Without a fully developed record, and appellate court lacks the information necessary to assess the merits of a defendant’s plain error arguments. Here, for example, the Court of Appeals reviewed the officer’s body camera footage and determined that the officer did not have reasonable suspicion to extend the stop. However, the officer never testified at a suppression hearing, and thus never gave testimony regarding whether he had reasonable suspicion, including testimony about facts that were not captured on the camera footage. The court reversed and remanded to the Court of Appeals for consideration of the defendant’s claim that counsel rendered ineffective assistance by failing to move to suppress the evidence in question.

On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 789 S.E.2d 679 (2016), the court reversed because of errors in the jury instructions on self-defense. At trial, the parties agreed to the delivery of N.C.P.I.–Crim. 206.10, the pattern instruction on first-degree murder and self-defense. That instruction provides, in relevant part: “Furthermore, the defendant has no duty to retreat in a place where the defendant has a lawful right to be.” Additionally, N.C.P.I.–Crim. 308.10, which is incorporated by reference in footnote 7 of N.C.P.I.–Crim. 206.10 and entitled “Self-Defense, Retreat,” states that “[i]f the defendant was not the aggressor and the defendant was . . . [at a place the defendant had a lawful right to be], the defendant could stand the defendant’s ground and repel force with force.” Although the trial court agreed to instruct the jury on self-defense according to N.C.P.I.–Crim. 206.10, it ultimately omitted the “no duty to retreat” language of N.C.P.I.–Crim. 206.10 from its actual instructions without prior notice to the parties and did not give any part of the “stand-your-ground” instruction. Defense counsel did not object to the instruction as given. The jury convicted defendant of second-degree murder and the defendant appealed. The Court of Appeals affirmed the conviction, reasoning that the law limits a defendant’s right to stand his ground to any place he or she has the lawful right to be, which did not include the public street where the incident occurred. The Supreme Court allowed defendant’s petition for discretionary review and reversed.

(1) The court held that when a trial court agrees to give a requested pattern instruction, an erroneous deviation from that instruction is preserved for appellate review without further request or objection. Here, because the trial court agreed to instruct the jury in accordance with N.C.P.I.–Crim. 206.10, its omission of the required stand-your-ground provision substantively deviated from the agreed-upon pattern jury instruction, thus preserving this issue for appellate review.

(2) By omitting the relevant stand-your-ground provision, the trial court’s jury instructions were an inaccurate and misleading statement of the law. The court concluded, in part, that “[c]ontrary to the opinion below, the phrase “any place he or she has the lawful right to be” is not limited to one’s home, motor vehicle, or workplace, but includes any place the citizenry has a general right to be under the circumstances.” Here, the defendant offered ample evidence that he acted in self-defense while standing in a public street, where he had a right to be when he shot the victim. Because the defendant showed a reasonable possibility that, had the trial court given the required stand-your-ground instruction, a different result would have been reached at trial, the court reversed the Court of Appeals, finding that the defendant was entitled to a new trial.

In this felony assault case, the defendant failed to preserve for appeal the argument that double jeopardy precluded his second trial. During the defendant’s first trial, the trial court expressed concern about moving forward with the trial. A juror would become unavailable because of his wife’s upcoming heart procedure and the trial court expressed “no confidence” and “absolutely no faith” in the alternate juror, indicating the belief that the alternate “has not been able to hear much of what has transpired.” The trial court asked the parties if they wished to be heard on the matter. Defense counsel indicated that he supported the mistrial. The trial court then declared a mistrial based on manifest necessity and neither party objected. The defendant was convicted at a second trial. On direct appeal from that conviction the defendant asserted that he was subjected to double jeopardy because the trial court erred by declaring a mistrial in the absence of manifest necessity. The court concluded that the defendant failed to preserve this issue by consenting to the mistrial and by failing to raise the double jeopardy issue at his second trial.

State v. Bursell, 258 N.C.App. 527, 813 S.E.2d 463 2018-03-20 aff’d in part, rev’d in part, 258 N.C.App. 527, 813 S.E.2d 463 (May 10 2019)

On an appeal from an order requiring the defendant to enroll in lifetime SBM, the court held--as conceded by the State--that the trial court erred by imposing lifetime SBM without conducting the required Grady hearing to determine whether monitoring would amount to a reasonable search under the Fourth Amendment. The court vacated the SBM order without prejudice to the State’s ability to file a subsequent SBM application.

In this kidnapping and sexual assault case, the court held that by failing to object and raise a constitutional double jeopardy argument in the trial court, it was waived on appeal. The defendant tried to assert on appeal that the trial court violated double jeopardy by sentencing him for both kidnapping and sexual offense. The court declined to invoke Rule 2 of the Rules of Appellate Procedure to address the merits of the defendant’s unpreserved constitutional argument.

 

In this possession of a firearm by a felon case, the court reversed in part the decision of the Court of Appeals, ___ N.C. App. ___, 801 S.E.2d 169 (2017), for the reasons stated in the dissent. A divided panel of the court of appeals had held that the trial court erred by admitting 404(b) evidence. The current charges were filed after officers found an AK-47 rifle in the back seat of a vehicle and a Highpoint .380 pistol underneath the vehicle, next to the rear tire on the passenger side. At trial, the State offered, and the trial court admitted, evidence of a prior incident in which officers found a Glock 22 pistol in a different vehicle occupied by the defendant. The evidence was admitted to show the defendant’s knowledge and opportunity to commit the crime charged. The defendant offered evidence tending to show that he had no knowledge of the rifle or pistol recovered from the vehicle. The court of appeals held that the trial court erred by admitting the evidence as circumstantial proof of the defendant’s knowledge. It reasoned, in part, that “[a]bsent an immediate character inference, the fact that defendant, one year prior, was found to be in possession of a different firearm, in a different car, at a different location, during a different type of investigation, does not tend to establish that he was aware of the rifle and pistol in this case.” The court of appeals found that the relevance of this evidence was based on an improper character inference. It further held that the trial court abused its discretion by admitting the evidence as circumstantial proof of the defendant’s opportunity to commit the crime charged. The court of appeals noted, in part, that the State offered no explanation at trial or on appeal of the connection between the prior incident, opportunity, and possession. The court of appeals went on to hold that the trial court’s error in admitting the evidence for no proper purpose was prejudicial and warranted a new trial. The dissenting judge believed that because the defendant did not properly preserve his objection, the issue should be reviewed under the plain error standard, and that no plain error occurred. 

State v. Phachoumphone, 257 N.C.App. 848, 810 S.E.2d 748 2018-02-06 review granted, 372 N.C. 72, 824 S.E.2d 397 (Sep 20 2018)

A defendant who fails to move to dismiss in the trial court on grounds of fatal variance waives the issue for purposes of appeal.

State v. Phachoumphone, 257 N.C.App. 848, 810 S.E.2d 748 2018-02-06 review granted, 372 N.C. 72, 824 S.E.2d 397 (Sep 20 2018)

A defendant who fails to move to dismiss in the trial court on grounds of fatal variance waives the issue for purposes of appeal.

Because the defendant never asserted a constitutional double jeopardy violation before the trial court, he failed to preserve the issue for appellate review. However, to prevent manifest injustice, the court invoked Rule 2 and addressed the merits of the defendant’s claim.

Because the defendant did not present any constitutional argument before the trial court, he waived appellate review of whether his Fourth Amendment rights were violated when the trial court allowed the State to retrieve location information from his cell phone without a search warrant. The court concluded: “Defendant’s only argument before the trial court was that law enforcement did not have sufficient evidence to support issuance of the pen register order. The trial court ruled on this issue only, and this is the only argument we may consider on appeal.”

Because the defendant failed to raise the issue before the trial court, the court declined to address the defendant’s argument that his consent to search the car was not voluntary.

(1) By failing to object at trial to the trial court’s handling of a juror’s inquiry about whether jurors may question witnesses, the defendant failed to preserve the issue for appellate review.

(2) The court declined to invoke its discretionary authority under Appellate Rule 2 to suspend the issue-preservation requirements of Appellate Rule 10 and review the issue on the merits, concluding that the defendant had failed to demonstrate that the case was a rare one meriting suspension of the rules.

The defendant waived his right to direct appeal review of any fourth amendment challenge to the trial court’s order requiring him to enroll in a satellite-based monitoring for life, by failing to raise the constitutional challenge at trial. The court declined to invoke Rule 2 to issue a writ of certiorari to review the defendant’s unpreserved argument.

The defendant failed to preserve for appellate review his contention that the trial court erred by denying defense counsel’s motion to dismiss a charge of second-degree murder. Although the defendant made a motion to dismiss the charge of first-degree murder, he neither moved to dismiss the second-degree murder charge nor argued insufficiency of the evidence to establish that offense. 

Because the defendant did not assert at the trial level that the officer made false statements in his affidavit supporting a search warrant, that issue was not preserved for appellate review. 

The court declined to consider the defendant’s argument that his motion to suppress a warrantless blood draw should have been granted because his Fourth Amendment rights were violated where the only ground the defendant asserted with respect to that motion at trial was a violation of G.S. 20-16.2. 

The Court of Appeals failed to recognize its discretion under Rule 2 of Rules of Appellate Procedure to refrain from undertaking a review of the defendant’s fatal variance claim, apparently acting under the erroneous belief that it was required to reach the merits of the claim. The defendant was found guilty of felony larceny. On appeal, he asserted in part that the trial court erred by failing to dismiss the larceny charge due to a fatal variance with respect to ownership of the property. Because counsel failed to raise the issue at trial, the defendant sought review under Rule 2. Noting that a previous panel of the court had invoked that Rule to review a fatal variance issue, the Court of Appeals, without further discussion or analysis, addressed the merits of the defendant’s argument, finding a fatal variance and vacating the larceny convictions. The State petitioned the Supreme Court for discretionary review on the issue of whether the Court of Appeals erred by invoking Rule 2 under the circumstances of the case. The Supreme Court noted that Rule 2 relates to the residual power of the appellate courts to consider “in exceptional circumstances” significant issues. Whether a case warrants application of Rule 2 must be determined based on a case-by-case basis and “precedent cannot create an automatic right to review via Rule 2.” Here, the Court of Appeals erroneously believed that a fatal variance issue automatically entitled the defendant to appellate review under Rule 2. In so doing, it failed to recognize its discretion to refrain from undertaking such a review. The court reversed and remanded to the Court of Appeals “so that it may independently and expressly determine whether, on the facts and under the circumstances of this specific case, to exercise its discretion to employ Rule 2” to reach the merits of the defendant’s claim.

In this multi-count assault and attempted murder case, because the defendant failed to challenge the sufficiency of the evidence as to the intent elements of the challenged convictions in the trial court, the issue was not preserved for appellate review. The court concluded: “Because defense counsel argued before the trial court the sufficiency of the evidence only as to specific elements of the charges and did not refer to a general challenge regarding the sufficiency of the evidence to support each element of each charge, we hold Defendant failed to preserve the issues of the sufficiency of the evidence as to the other elements of the charged offenses on appeal.”

In this child sexual assault case, because the defendant did not make an offer of proof to show what the victim’s responses to questions about her past sexual behavior would have been, he failed to preserve for appellate review whether he should have been allowed to question the victim regarding her general sexual history (a Rape Shield issue).

State v. China, 252 N.C.App. 30, 797 S.E.2d 324 2017-02-21 rev’d in part on other grounds, 370 N.C. 627 (Apr 6 2018)

The defendant failed to preserve for appellate review a challenge to the admission of evidence at trial concerning the defendant’s previous incarceration. Although the defendant objected to the admission of the evidence during a hearing outside of the jury’s presence, he did not subsequently object when the evidence was actually introduced at trial. Thus the defendant failed to preserve for appellate review the trial court’s decision to admit this evidence.

In this drug trafficking case, the defendant did not preserve for appellate review his argument that the trial court erred by denying his motion to suppress in-court and out-of-court identifications. The trial court denied the defendant’s pretrial motion to suppress, based on alleged violations of the Eyewitness Identification Reform Act (EIRA), concluding that the current version of the EIRA did not apply to the defendant’s case because the statute came into force after the identification at issue. When the relevant evidence was offered at trial, the defendant did not object. It is well-settled that a trial court’s evidentiary ruling on a pretrial motion to suppress is not sufficient to preserve the issue of admissibility for appeal unless the defendant renews the objection during trial. The court rejected the defendant’s argument that he could raise the issue on appeal because the trial court failed to apply a statutory mandate in the EIRA and that violations of statutory mandates are preserved without the need for an objection at trial. It concluded that the trial court did not violate any statutory mandate because the mandates of the statute only arise if the court determines that the EIRA applies to the case in question.

In this child sexual assault case, the defendant failed to preserve the argument that the trial court committed prejudicial error by allowing the State’s expert witness to testify that she diagnosed the child with PTSD, thus improperly vouching for the witness. At trial, the defendant did not object to the expert’s testimony on the basis that it impermissibly vouched for the child’s credibility or the veracity of the sexual abuse allegations; rather, his objection was grounded on the fact that a licensed clinical social worker is not sufficiently qualified to give an opinion or diagnosis regarding PTSD.

By failing to properly object at trial, the defendant did not properly preserve for appeal the issue of whether the trial court abused its discretion by admitting lay opinion testimony identifying the defendant in surveillance footage and in a photograph.

In a drug case in which the court of appeals had held that a strip search of the defendant did not violate the fourth amendment, State v. Collins, ___ N.C. App. ___, 782 S.E.2d 350 (2016), the Supreme Court affirmed solely on the ground that because the defendant failed to raise in the trial court the timing of the officer’s observation of powder on the floor, he failed to preserve that issue on appeal. The defendant had argued in the court of appeals that because the officer did not see the powder until after the search, the trial court was barred from considering the officer’s observation in ruling on the defendant’s suppression motion. The court of appeals determined that because the defendant failed to raise the timing of the officer’s observation at the hearing on his motion to suppress, the issue was not properly before the appellate court.

The court affirmed per curiam the decision below in State v. Howard, 228 N.C. App. 103 (June 18, 2013) (over a dissent, the court dismissed the defendant’s appeal where the defendant objected to the challenged evidence at trial under Rule 403 but on appeal argued that it was improper under Rule 404(b); the court stated: “A defendant cannot ‘swap horses between courts in order to get a better mount’“; the dissenting judge believed that the defendant preserved his argument and that the evidence was improperly admitted).

Where the State’s witness testified regarding statements made to the victim by the victim’s brother and the defendant failed to move to strike the testimony, the defendant failed to preserve the issue for appellate review.

By failing to object to the omission of diminished capacity and voluntary intoxication from the trial court’s final mandate to the jury instructions on murder, the defendant failed to preserve this issue for appellate review. The trial court had instructed on those defenses per the pattern instructions. The defendant never requested that the final mandate for murder include voluntary intoxication and diminished capacity. The court went on to reject the defendant’s argument that this constituted plain error.

The court determined that it need not address the substance of the defendants’ challenge to the trial court’s order denying their suppression motions where the argument asserted was not advanced at the suppression hearing in the trial court.

In this Columbus County case, defendant appealed her conviction for second-degree murder based on driving while impaired (DWI) and reckless driving, arguing error in (1) denying her motion to suppress the results of a blood sample, (2) admitting a lab report prepared by an expert who did not testify, and (3) admitting evidence under Rule of Evidence 404(b) of previous DWIs and bad driving. The Court of Appeals found no error. 

In February of 2018, defendant caused a tractor-trailer to crash because she was driving very slowly in the right-hand lane of a highway. The driver of the tractor-trailer was killed when the cab caught fire after the accident. Several witnesses noted defendant’s slow responses and movements, and a State Highway Patrol trooper noticed cans of aerosol duster in her purse. The trooper took defendant to a hospital and she consented to a blood draw. Before trial defendant filed a motion to suppress the blood draw based on violations of G.S. 20-16.2, and a motion to limit Rule 404(b) evidence of prior DWIs and bad driving, but the trial court denied both motions. During the trial, the State offered two lab reports based on the blood sample, showing defendant had Difluoroethane (a substance from aerosol dusters), Xanax, and several other prescription drugs in her blood. Defense counsel objected to the lab reports on Sixth Amendment grounds as the testifying expert was not the scientist who authored the reports, but the trial court admitted them into evidence.

Reviewing (1), the Court of Appeals first noted that defendant’s objection to the blood sample at trial was based upon G.S. 20-16.2 (implied consent to chemical analysis), not on Fourth Amendment constitutional grounds. Here, the court pointed to State v. Davis, 364 N.C. 297 (2010), for the proposition that defendant’s failure to raise the constitutional issue by objection at trial resulted in her waiving the argument. Because defendant also did not renew the statutory argument on appeal, the court declined to address either issue. 

Moving to (2), the court explained “this case is not one in which the expert witness testifying in court did not personally participate in the testing.” Slip Op. at 14. Instead, the expert witness called by the State had participated in the lab analysis even though she was not listed as the author of the report, and she had reviewed the results as if she had conducted the tests herself. The court held that defendant’s Confrontation Clause rights were not violated because “[a]s an expert with personal knowledge of the processes involved and personal participation in the testing, [the State’s expert] was the witness whom Defendant had a right to cross-examine, and she was indeed subject to cross-examination at trial.” Id. at 15. 

Reaching (3), the court explained defendant’s argument rested upon the Rule 404(b) evidence failing the Rule of Evidence 403 balancing test, arguing the probative value did not outweigh the prejudicial nature of the evidence. The court noted each of the incidents were probative of malice and knowledge of the danger of defendant’s actions. When considering prejudice, the court explained that “[n]one of the prior incidents related to any particularly shocking or emotional facts that would have inflamed the jurors” and held the trial court properly denied defendant’s motion. Id. at 18. 

In this Wake County case, defendant appealed his convictions for two counts of first-degree murder and four counts of discharging a weapon into an occupied vehicle, arguing error in (1) allowing certain text messages into evidence, and (2) denying his challenge to the jury pool. The Court of Appeals found no error. 

In May of 2022, trial began on defendant’s charges; during jury selection, defendant challenged the makeup of the jury pool, arguing members of defendant’s race (Black) were underrepresented. Defendant offered statistical evidence to support his argument, but the trial court denied defendant’s challenge. During the trial, the State offered text messages between an accomplice of defendant and a third party, attempting to show motivation for the robbery that eventually led to the murders. Defendant objected to the messages, and the trial court only allowed admission of the accomplice’s text messages, not those from the third party. Defendant was subsequently convicted and appealed.  

Before reaching the merits of defendant’s arguments in (1), the Court of Appeals considered the basis for its review. At trial, defendant objected to the text messages “because they were hearsay, were not illustrative, and lacked a proper foundation.” Slip Op. at 6. However, on appeal, defendant did not raise these three issues, but instead argued the text messages were irrelevant, unfairly prejudicial, and violated the Confrontation Clause and defendant’s right to a fair trial. Because defendant attempted to change his arguments on appeal, he was limited to the plain-error standard; however, the court noted that defendant “failed to ‘specifically and distinctly . . . argue plain error.’” Id., quoting State v. Frye, 341 N.C. 470, 496 (1995). As a result, defendant was limited to the grounds under which he originally objected to the evidence at trial. But as noted above, defendant did not argue the three issues from trial on appeal. This meant that defendant had no valid arguments on appeal, and the court dismissed issue (1). 

Moving to (2), the court explained that under applicable precedent on the fair-cross-section requirement, statistical evidence about the composition of the jury pool alone is not enough to prove systematic exclusion of that group. Here defendant acknowledged that he did not admit sufficient evidence of all three factors under Duren v. Missouri, 439 U.S. 357 (1979), but attempted to reference other cases and the pervasive problem of disparity in jury pools across North Carolina. The court was not swayed by this argument, concluding defendant “only offers statistical evidence as proof of systematic exclusion, and without more, he fails to establish a fair-cross-section claim under Duren.” Slip Op. at 8-9. 

In this Johnston County case, defendant appealed his convictions for possessing methamphetamine, possessing drug paraphernalia, resisting a public officer, and carrying a concealed weapon, arguing error in denying his motion to suppress because the order contained erroneous findings of fact and conclusions of law. The Court of Appeals disagreed, finding no plain error. 

In August of 2018, sheriff’s deputies responded to a mobile home park after a service call about drug activity. When they arrived, they observed defendant sitting in the passenger seat of a silver car that was parked next to a black car. After an exchange where one passenger of the vehicle informed a deputy that he was “making a blunt,” and they observed marijuana, the deputies began questioning others in the vehicle. Slip Op. at 3. When defendant refused to take his hands out from under his legs or show his hands, a deputy assisted him out of the vehicle. Although at one point defendant fled the scene, he was eventually detained and placed in a deputy’s vehicle. After securing defendant, the deputies searched the area and the silver car, finding methamphetamine, marijuana, and drug paraphernalia. In February 2020, defendant’s motion to suppress was denied, and he was subsequently convicted in March of 2021. In May of 2022, defendant’s first petition for writ of certiorari was granted and the Court of Appeals found that the trial court’s order lacked sufficient conclusions of law. On remand, the trial court issued an amended order with additional conclusions of law in August 2022, again denying defendant’s motion to suppress. This amended order gave rise to the current opinion. 

Taking up the order, the Court of Appeals first pointed out that the standard of review was plain error, as “Defendant filed a motion to suppress the challenged evidence, but at trial, Defendant failed to object to the admission of the evidence.” Id. at 7. The first remand by the court “did not negate the fact that Defendant failed to preserve the issues raised in his motion to suppress at trial.” Id. at 8. The court then analyzed the challenged findings of fact and conclusions of law to determine if they represented a violation of defendant’s Fourth Amendment rights. The court determined that finding of fact 7 was erroneous, as it referenced a black car being involved in the initial tip but testimony only mentioned a silver car. However, this error did not rise to a Fourth Amendment violation because “the evidence found in the silver vehicle was properly admitted.” Id. at 11.  

Moving to the challenged conclusions of law, numbers 10 and 11, the court noted that these involved the lack of a seizure during the encounter and that the encounter did not trigger Fourth Amendment scrutiny. The court walked through the constitutional analysis applicable to the encounter between the deputies and defendant, concluding that conclusion of law 10 was not error as the encounter between the deputies and defendant was initially consensual, and defendant and the other occupants of the car were not seized. However, the court noted that conclusion of law 11 was erroneous, as “[c]ontrary to the trial court’s conclusion, ‘Fourth Amendment scrutiny’ was ‘triggered’ when [a deputy] assisted Defendant out of the vehicle because no reasonable person would have felt free to leave at that point.” Id. at 14. However, although the conclusion of law was erroneous, “it was not plain error because the deputies did not violate Defendant’s Fourth Amendment rights.” Id. at 14-15. Because the evidence was “properly admitted,” it did not “seriously affect the fairness, integrity, or public reputation of judicial proceedings,” and the trial court appropriately denied the motion. Id. at 15. 

In this Wake County case, a drug investigator was working at a local FedEx facility and noticed a package from California with the seams taped shut and with an apparently fake phone number for the recipient. The officer removed the package from the conveyor belt and searched law enforcement databases for information on the sender and the recipient. He discovered that the telephone number for the sender listed on the package was incorrect, that the telephone number for the recipient was fictitious, and that the package had been mailed from a location other than the listed shipping address. The package was placed alongside several other similar packages and was examined by a drug dog already present in the facility. Following an alert by the canine, officer obtained a search warrant for the package. Inside, officers discovered packages of around 15 pounds of suspected marijuana, along with a GPS tracker. Officers visited the address of the recipient, where they noticed the defendant in the driveway. They also noted the presence of a storage unit facility nearby and later learned the defendant rented a unit there. A man (apparently the sender) called the FedEx facility to inquire about the status of the package. An officer called him back, first verifying the intended address and recipient of the package and then identifying himself as law enforcement. The man on the phone cursed and ended the call. The next day, officers visited the storage facility near the defendant’s home with a canine unit, which alerted to a certain unit. While officers were obtaining a search warrant for the unit, the defendant arrived on scene holding a bag. Officers saw what they believed to be marijuana extract or “wax” inside the bag and placed the defendant under arrest. Once the search warrant for the storage unit was approved, officers discovered more apparent marijuana and marijuana extract inside. Search warrants for the defendant’s house were then obtained, leading to the discovery of marijuana paraphernalia and a substance used to produce marijuana extract. 

The defendant was charged with conspiracy to traffic marijuana, possession with intent to sell/deliver marijuana and possession with intent to sell/deliver THC (among other related offenses). The defendant moved to suppress, arguing that the seizure of the package at the FedEx facility was unconstitutional. The trial court denied the motion, and the defendant was convicted of trafficking and other offenses at trial. On appeal, the defendant challenged the denial of his suppression motion, the denial of his motion to dismiss for insufficient evidence, the admission of lay opinions identifying the substances in the case as marijuana, marijuana wax, and THC, and the admission of the phone call between the officer and the man who called the FedEx facility inquiring about the package. The Court of Appeals affirmed.

(1) The court rejected the argument that the defendant’s Fourth Amendment rights were violated by the seizure of the package and canine sniff at the FedEx facility. “[W]e do not accept Defendant’s initial contention that the mere removal of the target package from the conveyor belt for a drug dog sniff was a ‘seizure’ implicating his Fourth Amendment rights. Neither was the drug dog sniff a ‘search. . .’” Teague Slip op. at 13. While both the sender and recipient of a mailed package have a reasonable expectation of privacy in the contents of a package, the temporary detention and investigation of the package in a manner that does not significantly delay its delivery does not amount to a Fourth Amendment seizure. Officers here had reasonable suspicion to justify a brief investigation and dog sniff of the package. From there, officers properly obtained search warrants of the package, which led to additional search warrants supported by probable cause. Thus, the acts of removing the package for investigation and subjecting it to a canine sniff did not implicate the defendant’s Fourth Amendment rights and the motion to suppress was properly denied. 

(2) Assuming arguendo that the seizure and canine sniff of the package did implicate the defendant’s Fourth Amendment rights, he failed to preserve those arguments for appellate review. While the defendant filed a pretrial motion to suppress and fully litigated those issues (including objecting to the canine alert evidence at trial), he failed to object to testimony at trial about the removal of the package from the conveyor belt for additional investigation. Appellate review of that issue was therefore waived. The dog sniff on its own did not amount to a search, given it took place at the FedEx facility while the item was “still in the mail stream” and was completed within ten minutes. “…Defendant’s renewed objection at trial to the introduction of . . . the dog sniff was insufficient to resurrect any prior unpreserved Fourth Amendment argument for appellate review.” Id. at 25. The trial court also did not plainly err by denying the suppression. Because the defendant’s Fourth Amendment rights were not implicated, no error occurred, much less any plain error in the trial court’s denial of the suppression motion. 

Regarding the defendant’s other challenges, the court noted the continued ambiguity surrounding the impact of hemp legalization on marijuana prosecutions, citing State v. Parker, 277 N.C. App. 531 (2021). The court opined that the now-defunct Industrial Hemp Act did not impact the State’s burden of proof in criminal proceedings “to the degree the Defendant contends,” while also acknowledging that “our appellate courts have yet to fully address the effect of industrial hemp’s legalization on . . . the various stages of a criminal investigation and prosecution for acts involving marijuana.” Teague Slip op. at 28 (citation omitted). 

(3) The defendant argued that the indictment charging him with possession with intent to sell/deliver THC was fatally defective for failure to state a crime because the indictment failed to specify that the THC possessed by the defendant contained a delta-9 THC concentration of more than 0.3%. The court rejected this argument, finding that the concentration of delta-9 THC is not an element of the crime and that the then-applicable Industrial Hemp Act did not remove THC from the list of prohibited controlled substances under Chapter 90 of the North Carolina General Statues. Moreover, the defendant has the burden under G.S. 90-113.1 to prove lawful possession of a controlled substance, which is an exception to the prohibitions on controlled substances and (again) not an element of the offense. (The prohibition on possession of THC in G.S. 90-94 has since been amended to exclude all THC products containing no more than 0.3% delta-9 THC, which expressly removes delta-9 THC within the legal limit and all other hemp-derived THCs not exceeding the delta-9 THC limit from the list of prohibited controlled substances).

(4) The trial correctly denied the defendant’s motion to dismiss the charge of possession with intent to sell/deliver THC for insufficient evidence. The defendant pointed to the lack of any chemical analysis for the brown marijuana “wax” and argued that the State failed to present proof that the substance was an illegal controlled substance given the existence of legal hemp. The court found that the brown material did not qualify as industrial hemp under the then-existing definition but met the definition of THC in place at the time. “The brown material was neither a part nor a variety of the plant Cannabis sativa.” Teague Slip op. at 34 (emphasis in original). Moreover, even if the material did qualify as a part of the plant, “Defendant makes no argument that he was a ‘grower licensed by the Commission’, or that the brown material was cultivated by such a licensed grower, as the statutory definition of ‘industrial hemp’ requires.” Id. at 35. In the light most favorable to the State, there was therefore sufficient evidence that the brown material was THC, and the motion was properly denied. (Industrial hemp is no longer defined under state law and has been replaced by new state definitions for marijuana, hemp and hemp products, as discussed here. Under the new definitions, hemp is defined to include all extracts and derivatives of hemp, and hemp products are defined as anything made from hemp. There is no longer any requirement that hemp be grown by a licensed grower.)

(5) The defendant argued that the legalization of hemp in the state undercut the justifications in the decisions allowing the lay identification of marijuana without the need for a chemical analysis. See, e.g., State v. Mitchell, 224 N.C. App. 171, 179 (2013). He complained on appeal that the admission of lay opinion testimony identifying “marijuana wax,” “THC,” and marijuana as such without a valid chemical analysis violated N.C. Evid R. 702 and was reversible error. The Court of Appeals disagreed. Assuming without deciding that the trial court erred in admitting this testimony, the defendant could not show prejudice. The flower marijuana in the package was properly lab-tested and found to contain illegal levels of delta-9 THC. While the brown wax material was tested only for the presence of delta-9 THC and not for specific levels of THC, the material again did not qualify as industrial hemp under the then-existing definition. While other flower material found in the storage shed was likewise only tested for the presence of THC (and not for quantified THC levels), there was overwhelming evidence of the defendant’s guilt. Given the marijuana that was properly tested, along with the discovery of other drugs and drug paraphernalia at the defendant’s house, storage unit, and in the bag that the defendant was carrying when he encountered officers at the storage unit (among other evidence), there was no reasonable likelihood of a different result at trial had this identification testimony been excluded. 

(6) There was also sufficient evidence supporting the defendant’s conviction for conspiring to traffic marijuana by transportation, and the trial court did not err in admitting a recording of the phone call between the apparent sender of the package and the law enforcement officer. The shipping label accurately named the defendant and his address, and the sender acknowledged that information on the call with the officer. The sender was also upset upon learning that the package had been intercepted by law enforcement. Additionally, the drugs in the package were worth more than $150,00.00 and included a GPS tracking device. This was sufficient to show the defendant and co-conspirator’s “mutual concern for and interest in” the package, thus providing sufficient evidence of the conspiracy. Id. at 44. The phone call between the sender of the package and law enforcement was properly admitted under the hearsay exception for statements of co-conspirators under N.C. Evid. R. 801(d)(E). The court rejected the defendant’s argument that the statement at issue here did not qualify under that exception because it was not a statement made between the conspirators. The court observed:

[W]hen the State has introduced prima facie evidence of a conspiracy, the acts and declarations of each party to it in furtherance of its objectives are admissible against the other members regardless of their presence or absence at the time the acts and declarations were done or uttered. Teague Slip op. at 46 (citation omitted) (emphasis in original). 

There was therefore sufficient evidence of the conspiracy conviction and no error in admission of the phone call between law enforcement and the co-conspirator. 

 

In this Cumberland County case, defendant appealed his convictions for first degree murder and robbery based upon (1) the admission of expert testimony regarding cell phone locations and (2) a jury instruction on defendant’s flight from the scene. The Court of Appeals found no error by the trial court and affirmed defendant’s convictions.

Defendant and an accomplice were driven to the house of a woman known to sell marijuana in Fayetteville. After defendant and his accomplice were dropped off near the home, shots were fired, and witnesses saw men matching their descriptions leaving the home. In addition to the testimony of eyewitnesses, the State offered the testimony of an expert in cell phone analytics from the Fayetteville Police Department, and a GeoTime report plotting the location of cellphones associated with the victim and the driver of the vehicle that brought defendant to the scene.

The Court of Appeals first reviewed defendant’s objection to the cell phone expert, and noted that defendant did not object to the testimony in the presence of the jury. Counsel did file a motion in limine and objected to the expert after voir dire, but did not renew the objection when the testimony was offered in front of the jury later in the trial. The trial court noted defendant’s objection in front of the jury, but only after testimony and cross-examination had concluded. Applying State v. Ray, 364 N.C. 272 (2010), the court determined that defendant did not properly preserve the objection. Slip Op at ¶20. As a result, the court applied a plain error standard of review, and found sufficient evidence to support defendant's convictions.

Reviewing the jury instruction on flight, the court similarly found that defendant failed to preserve the objection, as counsel never objected to the jury instruction at all. To preserve the objection, the court explained, counsel should have objected prior to the jury retiring to consider the verdict. The court applied the same plain error standard of analysis, finding that the jury instruction did not have a probable impact on the jury’s finding of guilt and ample evidence supported defendant’s convictions.

This Harnett County case involved a husband and wife who indemnified a bond on behalf of an employee. The employee was roommates with the couple’s son. When the employee disappeared, the family members forcibly apprehended him, causing a traffic accident and apparently discharging a gun. The three defendants were charged with various offenses, including acting as unlicensed bail bondsmen or runners. (1) Two of the defendants failed to preserve their argument that the evidence was insufficient to support conviction for acting as an unlicensed bail bondsman or runner. Trial counsel for the defendants moved to dismiss some of the offenses but failed to make any motion as to all charges generally, or as to the charge of acting as an unlicensed bondsman specifically. While a motion to dismiss a charge preserves all sufficiency issues pursuant to State v. Golder, 374 N.C. 238 (2020) (discussed here), where there is no motion to dismiss as to a specific charge, appellate review of the sufficiency of evidence for that offense is waived under Rule 10(a)(3) of the North Carolina Rules of Appellate Procedure. For the same reason, one of the defendant’s arguments regarding an alleged fatal variance between the indictment and the jury instructions was waived on appeal.

[A]ny fatal variance argument is, essentially, an argument regarding the sufficiency of the State’s evidence. . .[A]s [the defendant’s] argument fundamentally presents an issue ‘related to the sufficiency of the evidence’ that he did not ‘mov[e] to dismiss at the proper time’, he has waived appellate review of this issue. Slip op. at 17.

The court declined to suspend the Rules of Appellate Procedure under Rule 2 to consider the merits of the arguments.

(2) The trial court admitted into evidence a recording of a 911 call where the caller stated that a defendant hit the victim’s truck with his vehicle “on purpose.” On appeal, the defendant argued this evidence amounted to improper lay opinion testimony. Trial counsel objected to this evidence at the time on hearsay and confrontation grounds but did not argue improper lay opinion. This argument was therefore waived on appeal. This defendant also failed to “specifically and distinctly” raise this argument for plain error review on appeal, and the court declined to review it. The court observed that purported violations of Rule 701 are reviewed for abuse of discretion and that plain error has not previously been applied to discretionary decisions of the trial court.

(3) Several other issues turned on whether the defendants could be considered sureties or accommodation bondsmen. Two of the defendants claimed error in the trial court’s refusal to instruct on a defense of lawful action by a surety; one defendant claimed a fatal defect in the indictment for failure to charge a crime; and one defendant claimed that a motion to dismiss for insufficiency as to a kidnapping conviction should have been granted based on the lawful authority of a surety to confine or restrain the subject of the bond. Article 71 of Chapter 58 of the General Statutes of North Carolina regulates the bail bond industry. The husband and wife argued that they met the definition of a surety in G.S. 58-71-1(10) as ones liable on the bail bond in the event of bail forfeiture. As a result, they argued that the common law right of sureties to arrest a principal on the bond who fail to appear justified their actions. The court rejected this argument, finding that the definition of surety in Chapter 15A of the General Statutes controls when the two definitions conflict, pursuant to G.S. 58-71-195 (so stating). Under that definition, the professional bondsman who posted the bond was the surety, but the defendants were not. While the husband-and-wife-defendants were liable to the professional bondsman if the bond were to be forfeited as indemnitors, they would not be liable to the State. “Simply put, agreeing to indemnify a bond does not a surety make.” Gettleman Slip op. at 26. The court also rejected the alternative argument by one of the defendants that she qualified as an accommodation bondman for the same reason—the defendant did not qualify as a surety on the bond. “We conclude that Defendants did not act lawfully, either as sureties or as accommodation bondsmen. Accordingly, we overrule Defendants’ issues brought on this basis.” Id. at 27. The unanimous court therefore affirmed all of the convictions.

In this case from Randolph County, the Court of Appeals initially vacated the defendant’s conviction for possession of heroin (discussed here). The North Carolina Supreme Court reversed, finding the evidence sufficient to support the drug conviction. State v. Osborne, 372 N.C. 619 (2019) (discussed here). On remand, the Court of Appeals was instructed to consider the applicability of G.S. 90-96.2 to the case. That statute provides “limited immunity” from prosecution for certain drug offenses when the evidence is discovered as a result of a call for assistance relating to a drug overdose. The Court of Appeals was also directed to consider plain error challenges to the admission of certain evidence that it previously left undecided.

(1) The defendant did not raise the issue of potential immunity at trial or on appeal. While subject matter jurisdictional defects cannot be waived and may be asserted at any time, the court determined that the immunity provisions of G.S. 90-96.2 are not jurisdictional and are therefore waivable:

 In sum, we hold that N.C. Gen. Stat. § 90-96.2(c) does not contain a clear indication that it is a jurisdictional requirement, and we therefore treat the provision as one granting traditional immunity from prosecution. This type of immunity must be asserted as a defense by the defendant in the trial court proceeding. The failure to raise the issue waives it and precludes further review on appeal. Slip op. at 9 (citations omitted).

The issue of immunity here was thus waived and the merits of the issue were not decided. The defendant could, however, assert ineffective assistance of counsel in post-conviction proceedings based on trial counsel’s failure to raise the issue. [Jamie Markham blogged about the immunity provisions of G.S. 90-96.2 here].

(2) The defendant also claimed the admission of field tests and lay opinions from police officers that the substance discovered in her room was heroin amounted to plain error. The Supreme Court’s opinion in the case acknowledged the “ample evidence” that the substance was heroin even without the challenged evidence, and the Court of Appeals agreed. Accordingly, the erroneous admission of field tests and lay opinion “is simply not the sort of fundamental error that calls into question the ‘fairness, integrity or public reputation of judicial proceedings’” making a finding of plain error inappropriate. Id. at 11.

The defendant was stopped by a state trooper who saw her driving erratically. The defendant smelled of alcohol, had slurred and mumbled speech, and stumbled and staggered when she got out of her car. She registered a positive result on a portable breath test and was arrested for driving while impaired. She subsequently refused to submit to a breath test. The defendant pled guilty in district court to driving while impaired and appealed. In superior court, the defendant moved to suppress evidence and requested a bench trial. The superior court denied the motion to suppress and found the defendant guilty. At sentencing, the court found the grossly aggravating factor of a prior impaired driving conviction within seven years of the date of the offense and imposed a Level Two sentence. The defendant appealed, arguing that the trial court erred in denying her motion to suppress, the evidence was insufficient to support her conviction, and that the trial court erred in in sentencing her based on a grossly aggravating factor for which the State filed to provide the statutorily required notice.

(1) The court of appeals determined that the defendant did not properly preserve the denial of her motion to suppress for review on appeal as she did not renew her objection when the evidence was offered for consideration at her bench trial. And because the defendant did not argue plain error on appeal, the court did not review the denial of the motion for plain error. 

(2) The court of appeals determined that the trial court did not err by denying defendant’s motion to dismiss for insufficient evidence. The trooper testified as to his opinion that the defendant was impaired by alcohol. He based that opinion on seeing the defendant stumbling and staggering when she got out of her car, smelling a moderate odor of alcohol on her breath, hearing her mumbled and slurred speech, and observing her erratic driving. Evidence of the defendant’s refusal to submit to a breath test at the police station also was admissible evidence of impairment. The appellate court held that, viewed in the light most favorable to the State, this evidence was sufficient to show that the defendant was under the influence of an impairing substance.

(3) The State failed to file notice of its intent to rely at sentencing upon the aggravating factor of a prior impaired driving conviction. Such notice is required by G.S. 20-179(a1)(1) for misdemeanor impaired driving charges appealed to superior court. The court explained that the right to notice of the State’s intent to rely on a prior conviction is a statutory right, not a constitutional one, and thus may be waived. The defendant admitted to the prior conviction on cross-examination, and her counsel stipulated at sentencing that she “‘did have the prior DWI.’” Slip op. at 12. Moreover, defense counsel did not object to the court’s consideration of the prior conviction as an aggravating factor. The court of appeals determined that the defendant’s admission and her counsel’s stipulation along with her failure to object to lack of notice at the sentencing hearing amounted to a waiver of her statutory right to notice.

The defendant was convicted at trial of driving while impaired and habitual DWI in Guilford County. (1) In its discretion, the Court of Appeals granted the defendant’s petitions for writ of certiorari to review the criminal judgment and civil judgment for attorney fees. Following his conviction for habitual impaired driving, the defendant filed two pro se notices of appeal. Those notices did not contain a certificate of service indicating service on the State and failed to name the court to which the appeals were taken. Appellate counsel was later appointed, who recognized the pro se notices of appeal were potentially defective and filed two petitions for writ of certiorari seeking appellate review. The pro se notices of appeal were an indication that the defendant intended to preserve his right to appellate review, and the Court of Appeals previously held in an unpublished case that the types of defects in the notices of appeal at issue did not require dismissal for lack of jurisdiction. Where (as happened here) the State does not object, the Court of Appeals may exercise jurisdiction by granting the petitions for writ of certiorari. Thus, the Court of Appeals had jurisdiction to consider the defendant’s arguments.

(2) During trial, the defendant moved to dismiss for insufficiency of the evidence at the close of the State’s case in chief. The defendant thereafter presented evidence and failed to renew the sufficiency motion at the close of all evidence. Because sufficiency review was therefore not preserved, the defendant requested that the Court of Appeals invoke Rule 2 of the Rules of Appellate Procedure to suspend the preservation rules and review the issue. The court declined to do so and thus affirmed the habitual DWI conviction.

(3) The trial court awarded the defendant’s trial counsel attorney fees as a civil judgment without giving the defendant an opportunity to personally be heard, in violation of G.S. § 7A-455. More than 35 recent cases have reversed the attorney fee award in similar circumstances. Following that line of cases, the majority of the panel vacated the attorney fee order and remanded for a hearing on the matter where the defendant could be personally heard or for “other evidence in the record demonstrating that the defendant received notice, was aware of the opportunity to be heard on the issue, and chose not to be heard.” Slip op. at 11.

Judge Tyson dissented. He would have refused to grant the petitions for writ of certiorari and dismissed all the defendant’s arguments as frivolous.

In this robbery case where the defendant was punished as a habitual felon, (1) the defendant failed to preserve a fatal variance argument; (2) there was insufficient evidence of attempted armed robbery; (3) assuming without deciding that the trial court expressed its opinion in violation of G.S. 15A-1222, the defendant was not prejudiced; and (4) the trial court erred by accepting the defendant’s stipulation to having attained habitual felon status.  

Noting that a defendant must specifically state at trial that a fatal variance is the basis for a motion to dismiss in order to preserve that argument for appellate review, the court found that the defendant waived his variance argument by basing his motion to dismiss solely on insufficiency of the evidence. 

With regard to insufficiency of the evidence of attempted armed robbery, the defendant argued that there was insufficient evidence of the use of a dangerous weapon.  The defendant had threatened an associate with a pistol and rifle that appeared to be firearms but turned out to be an air pistol and a pellet rifle.  Reviewing the rules from State v. Allen, 317 N.C. 119 (1986) and related cases about sufficiency of the evidence in situations involving instruments that appear to be but may not in fact be dangerous weapons, the court said that because the evidence was conclusive that the pistol and rifle were not firearms, the State was required to introduce evidence of the weapons’ “capability to inflict death or great bodily injury” to merit submission of the attempted armed robbery charge to the jury.  As no such evidence was introduced, the trial court erred in denying the defendant’s motion to dismiss for insufficient evidence.

During the testimony of a defense witness, the trial court interjected to admonish the witness not to refer to the pistol and rifle as “airsoft” weapons because, in the trial court’s view, that terminology was not an accurate description of the items.  Assuming without deciding that this admonishment was an improper expression of opinion and accepting for argument that it may have negatively impacted the jury’s view of the witness’s testimony, there was not a reasonable probability that the jury would have reached a different verdict absent the admonishment.

Finally, the State conceded and the court agreed that the trial court erred by accepting the defendant’s stipulation to having attained habitual felon status without conducting the required guilty plea colloquy.

The defendant was convicted by a jury of assault inflicting serious bodily injury and assault on a female based on an argument and fight with the mother of his child. He pushed her down, threw her head into the concrete, punched her, dragged her, and flung her onto the hood of a car. Among other injuries she had two concussions and a fractured eye socket that rendered her temporarily blind in one eye for two weeks. (1) The defendant argued on appeal that the indictment failed to allege the crime of assault inflicting serious bodily injury in that it alleged injuries that would be no more than misdemeanor assault inflicting serious injury, namely, “several lacerations to the face resulting in stitches and a hematoma to the back of the head.” The court of appeals disagreed, holding that the additional description of the victim’s injuries in the indictment was irrelevant as to its validity, and may be regarded as incidental to the salient statutory language, which was present. (2) The injury to the victim’s eye met the statutory definition of “serious bodily injury” in G.S. 14-32.4(a) in that the defendant was completely blind in her left eye for one week and her vision was not fully restored for two full weeks after the assault. She could not drive for one week and was not able to return to work until her vision was completely restored. A reasonable juror thus could have concluded that the injury resulted in a “protracted loss or impairment of the function of a bodily member or organ,” and that it therefore qualified as a serious bodily injury. (3) Finally, the court declined to consider the defendant’s argument on appeal that the trial court should have instructed the jury on misdemeanor assault inflicting serious injury. The defendant never objected to the instructions at trial and failed to argue plain error on appeal. Therefore, he waived the issue on appeal. A judge dissenting in part would have found the evidence here insufficient to qualify as a “protracted loss or impairment” when the victim fully recovered in in two weeks.

In a case where the defendant pled guilty to DWI pursuant to a plea agreement and in which the court declined to exercise its discretion to grant the defendant’s petition for writ of certiorari, the court noted that the defendant had no right to appeal from an order denying her motion to dismiss, entered prior to her guilty plea. It explained: “This issue is not listed as one of the grounds for appeal of right set forth in N.C. Gen. Stat. § 15A-1444. Defendant has no statutory right to plead guilty, while preserving a right to appeal the denial of her motion to dismiss.”

Under G.S. 15A-1444, the defendant did not have a right to appeal whether his guilty plea was knowing and voluntary. The defendant argued that his plea was invalid based on the trial court’s assurance that he could appeal the denial of his motion to dismiss. However, considering the defendant's petition for writ of certiorari, the court exercised its discretion to invoke Rule 2 to suspend the Rules and address the merits of the defendant’s appeal.

In this Cabarrus County case, the Supreme Court upheld the Court of Appeals decision that defendant was not required to give notice of his intent to appeal the denial of his motion to suppress prior to entering an open guilty plea. 

Defendant was charged with possession of a controlled substance and filed a motion to suppress, arguing the officer who stopped and searched him lacked reasonable suspicion. The trial court denied defendant’s motion, and defendant subsequently pleaded guilty. Notably, defendant confirmed to the trial court that he was not pleading guilty as part of a plea arrangement. After sentencing, defense counsel gave notice of appeal on the record. The Court of Appeals panel unanimously held that defendant was not required to give notice of intent to appeal prior to entering his plea. 

Taking up the State’s discretionary petition, the Supreme Court first noted that under State v. Reynolds, 298 N.C. 380 (1979), defendant would normally be required to give notice of his intent to appeal to the prosecutor and court “to ensure fundamental fairness in the plea negotiation process.” Slip Op. at 1. The Court noted that here, defendant did not receive any benefit from the State, and the issue of fairness was not in play. Concluding it would not advance the interests of justice and fairness to extend the Reynolds rule to open guilty pleas, the Court affirmed the Court of Appeals decision. 

Chief Justice Newby, joined by Justice Berger, dissented, and would have held that State v. Tew, 326 N.C. 732 (1990), controlled and required application of the Reynolds rule to open pleas. Slip Op. at 14. 

Over a dissent and with one judge concurring in result only, the court determined that the trial court erred by failing to give the defendant an opportunity to be heard on the issue attorney’s fees prior to entering a civil judgment against him.  Among several procedural issues in this case was whether the defendant had a right to appeal the judgment given that he had pleaded guilty and G.S. 15A-1444 limits appeals from guilty pleas.  Citing State v. Pell, 211 N.C. App. 376 (2011), the court held that the appeal of the civil judgment did “not arise from the underlying convictions” and, therefore, G.S. 15A-1444(a2) did not deprive the court of jurisdiction.  Because of issues caused by the defendant’s filing of the record on appeal prior to the time at which the civil judgment was filed, the court engaged in a lengthy discussion of the Rules of Appellate Procedure, as well as principles of law regarding petitions for writs of certiorari, on its way to determining that it had jurisdiction to address the merits of the appeal, either upon direct appeal or by certiorari.

Judge Berger concurred in result only, stating that “anyone interested in efficiencies and saving taxpayer dollars should hope the Supreme Court of North Carolina takes advantage of this opportunity to return us to the plain language of [G.S.] 15A-1444(a2).”

Judge Tyson dissented, expressing the view that because of the defendant’s various “jurisdictional failures and criminal, civil, and appellate rules violations” he had failed to invoke the jurisdiction of the court, as well as the view that the defendant’s petition for certiorari should have been denied for lacking merit.  Judge Tyson agreed with Judge Berger’s hope that the state supreme court would “return us to the plain language of [G.S.] 15A-1444(a2).”

(1) In this case where the defendant pleaded guilty to felony speeding to elude arrest pursuant to a plea arrangement, he had no statutory right to appeal. 

(2) However, the court considered the defendant’s petition for writ of certiorari which argued that he did not receive notice and an opportunity to be heard on the amount of attorney’s fees and costs. The court noted that a criminal defendant may file a petition for a writ of certiorari to appeal a civil judgment for attorney’s fees and costs. Here, after the defendant pleaded guilty to felony speeding to elude arrest he was sentenced and the trial court ordered him to pay court costs in the amount of $1,572.50. Before entering monetary judgments against indigent defendants for fees imposed for court appointed counsel, the trial court should ask defendants personally whether they wish to be heard on the issue. Absent a colloquy directly with the defendant, the requirements of notice and opportunity to be heard will be satisfied only if there is other evidence in the record demonstrating that the defendant received notice, was aware of the opportunity to be heard, and chose not to be heard. Here, nothing in the record indicated that the defendant understood he had a right to be heard on the issue, and the trial court did not inform him of that right. The court thus vacated the civil judgment for attorney’s fees and remanded to the trial court.

In a case where the defendant argued, and the State conceded, that certain indictments were fatally defective, the court held that the defendant had no right under G.S. 15A-1444 to appeal his conviction, entered upon a plea of guilty. Nor had he asserted any grounds under Appellate Rule 21 for the court to issue a writ of certiorari. However, the court exercised its discretionary authority under Appellate Rule 2 to suspend the requirements of the appellate rules and issue a writ of certiorari, finding that manifest injustice would occur if the convictions were allowed to stand on charges for which the trial court lacked jurisdiction to impose sentence.

A drug trafficking defendant who pled guilty and was sentenced pursuant to a plea agreement had no right to appeal the sentence, which was greater than that allowed by the applicable statute at the time. G.S. 15A-1444 allows for appeal after a guilty plea for terms that are unauthorized under provisions of Chapter 15A; the drug trafficking defendant here was sentenced under Chapter 90. However, the court went on to find that the defendant’s plea was invalid.

Where the defendant entered a guilty plea and did not assert an issue identified in G.S. 15A-1444(a2), he did not have a statutory right to appeal.

The defendant had no statutory right to appeal from a guilty plea to DWI where none of the exceptions to G.S. 15A-1444(e) applied.

State v. Jonas [Duplicated], ___ N.C. App. ___, 2021-NCCOA-660 2021-12-07 temp. stay granted, ___ N.C. ___, 865 S.E.2d 886 (Dec 22 2021)

In this Cabarrus County case, the defendant was convicted of possession of a Schedule II controlled substance based on 0.1 grams of methamphetamine found in a backpack in the trunk of a vehicle in which the defendant was a passenger. The defendant moved to suppress the evidence on the basis that it was seized in connection with a traffic stop that was not supported by reasonable suspicion. The trial court denied the motion. Defendant pled guilty, without a plea arrangement with the State, and appealed.

(1) G.S. 15-979(b) provides that an order finally denying a motion to suppress may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty. The North Carolina Supreme Court held in State v. Reynolds, 298 N.C. 380 (1979), that when a defendant intends to appeal from the denial of a motion to suppress pursuant to G.S. 15A-979(b), the defendant must give notice of that intention to the prosecutor and the court before plea negotiations are finalized. Absent such notice, the right to appeal is waived. The Court of Appeals held that the Reynolds notice requirement did not apply in the instant case because the defendant did not plead guilty as part of a plea arrangement. Thus, the defendant had a statutory right to appeal without having provided notice to the State and the trial court before entering his guilty plea.

(2) The officer who stopped the car in which the defendant was traveling testified that he stopped the car because it emerged from the empty parking lot of a closed business, a trailer had recently been stolen in that area, and the car was equipped with transporter plate, which the officer had never seen placed on a vehicle other than a truck. The Court of Appeals noted that, despite the officer’s belief to the contrary, G.S. 20-79.2 “clear[ly] and unambiguous[ly]” permits transporter plates to be used on motor vehicles generally, not just trucks. Though the Fourth Amendment tolerates objectively reasonable mistakes, the Court concluded that the officer’s mistake about the transporter plates was not objectively reasonable because the statute was not ambiguous. Thus, the officer’s belief regarding the transporter plates could not support reasonable suspicion. The Court determined that the additional facts that the business was closed and there was a recent trailer theft in the area were insufficient to support reasonable suspicion. Accordingly, the Court held that the trial court erred in denying the defendant’s motion to suppress. It reversed the trial court’s order and remanded the case to the trial court for entry of an order vacating the defendant’s guilty plea.

Although the defendant failed to object on double jeopardy grounds to being sentenced for both armed robbery and possession of stolen goods taken during the robbery, the court addressed the merits of the defendant’s argument, noting that it may consider whether a sentence is unauthorized even in the absence of an objection at trial.

Although the State had a right to appeal the trial court’s order dismissing charges because of a discovery violation, it had no right to appeal the trial court’s order precluding testimony from two witnesses as a sanction for a discovery violation. 

On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 808 S.E.2d 154 (2017), the court held that the State does not have a right to appeal orders granting expunctions under G.S. 15A-145.5. Deciding an issue of first impression, the court noted that the statute governing the State’s right to appeal, G.S. 15A-1445, does not contain language allowing the State to appeal an expunction order. The statute governing the defendant’s expunction, G.S. 15A-145.5, allows for the State to object to a petition for an expunction before the hearing takes place, but does not afford the State the right to appeal an expunction order. The court noted that its decision does not foreclose the opportunity to correct trial court errors because the State can seek review of an expunction order by writ of certiorari.

(1) The defendant’s argument that the trial court erred by sentencing him for both assault on a female and assault by strangulation was preserved for appellate review. The argument was based on mandatory language in G.S. 14-33(c) that prohibited double punishment. When the trial court acts contrary to a statutory mandate, the defendant’s right to appeal is preserved despite failure to object at trial.

(2) Although the defendant failed to raise the issue at sentencing, his argument that the trial court’s findings were insufficient to support its lifetime registration and SBM orders was preserved for appellate review. This issue in question implicated a statutory mandate. 

In this Beaufort County case, the Supreme Court granted certiorari to review the State’s appeal of a district court order suppressing evidence gathered during a DWI traffic stop. The Supreme Court found that the arresting officer had probable cause to arrest defendant and reversed the suppression order, remanding for further proceedings. 

In April of 2020, a State Highway Patrol officer stopped defendant after observing him weaving across the centerline. The officer noticed defendant smelled of alcohol and had glassy eyes, and defendant admitted to having a couple of beers earlier in the day. Afte administering a preliminary breath test (PBT) and horizontal gaze nystagmus (HGN) test, the officer arrested defendant for DWI. When the matter came to district court, defendant moved to suppress the results of the stop. The trial court found that the officer did not have probable cause to suspect defendant of DWI before his arrest, and also that the officer failed to ensure defendant had nothing in his mouth before the PBT, excluding the results. After the trial court’s preliminary ruling, the State challenged the determination in superior court under G.S. 20-38.7(a), but that court affirmed the trial court’s determination and directed it to enter a final order. The Court of Appeals denied the State’s petition for a writ of certiorari. 

Taking up the State’s petition, the Supreme Court first established its jurisdiction and the lack of other appeal routes, explaining that the final suppression order from district court was interlocutory, and the statute governing appeals from district court, G.S. 15A-1432, provided no other route for the State to appeal because there was no dismissal or motion for new trial. Since there was no vehicle for appeal and the State “would otherwise be marooned in an ‘interlocutory no-man’s land,’” Rule of Appellate Procedure 21 allowed the State to petition the Court for certiorari. Slip Op. at 8. This also meant that the Court was considering the district court’s final order, as there was no Court of Appeals opinion on the matter. 

Moving to the suppression order, the Court explained the applicable standard for probable cause in DWI arrests, and noted the extensive facts in the record supporting the officer’s suspicion of defendant, including “erratic weaving; the smell of alcohol on his breath and in his truck; his red, glassy eyes; his admission to drinking; and his performance on the HGN test.” Id. at 23.  Based on the totality of the evidence, the Court concluded that “a reasonable officer would find a ‘substantial basis’ to arrest in this case,” and defendant’s arrest did not offend the Fourth Amendment. Id. at 22. 

In this Wake County case, the Supreme Court affirmed the Court of Appeals decision denying defendant’s petition for writ of certiorari, and dismissed as improvidently allowed issues related to defendant’s petition for discretionary review and the denial of his petition for writ of mandamus.  

This matter has a complicated procedural history as detailed on pages 4-10 of the slip opinion. Defendant was originally charged with driving while impaired and driving without an operator’s license in April of 2015. Defendant failed to appear at his February 2016 hearing date; an order for arrest was issued and the State dismissed defendant’s charges with leave under G.S. § 15A-932(a)(2). This meant defendant could not apply for or receive a driver’s license from the DMV. Defendant was arrested in July of 2018, and given a new hearing date in November of 2018, but he again failed to appear. In December of 2018, defendant was arrested a second time, and given another new hearing date that same month. However, at the December 2018 hearing, the assistant DA declined reinstate the 2015 charges, leading to defendant filing several motions and petitions to force the district attorney’s office to reinstate his charges and bring them to a hearing. After defendant’s motions were denied by the district court, and his writ for certiorari was denied by the superior court and the Court of Appeals, the matter reached the Supreme Court.  

The court first established the broad discretion of district attorneys, as “[s]ettled principles of statutory construction constrain this Court to hold that the use of the word ‘may’ in N.C.G.S. § 15A-932(d) grants exclusive and discretionary power to the state’s district attorneys to reinstate criminal charges once those charges have been dismissed with leave . . . .” Slip Op. at 13. Due to this broad authority, the court held that district attorneys could not be compelled to reinstate charges. The court next turned to the authority of the trial court, explaining that “despite a trial court’s wide and entrenched authority to govern proceedings before it as the trial court manages various and sundry matters,” no precedent supported permitting the trial court to direct the district attorney in this discretionary area. Id. at 16. Because the district attorney held discretionary authority to reinstate the charges, and the trial court could not interfere with the constitutional and statutory authority of the district attorney, the court affirmed the denial of defendant’s motions for reinstatement and petition for writ of certiorari. 

The court also considered defendant’s various petitions for writ of mandamus, noting they were properly denied under the applicable standard because “[defendant] does not have a right to compel the activation of his charges which have been dismissed with leave or to require the exercise of discretionary authority to fit his demand for prosecutorial action regarding his charges.” Id. at 22.

In this Johnson County case, defendant was charged with drug related offenses after two searches of his home turned up items and ingredients used in the manufacture of methamphetamine. The first search occurred in September of 2014, and the second occurred in June of 2015. After charges were filed resulting from both searches, defendant filed two motions to suppress the evidence obtained from these searches in March of 2017. Two separate orders were entered denying both of defendant’s motions to suppress, in May and June of 2017.

After the denial of defendant’s motions to suppress, defendant reached a plea agreement and pled guilty on July 6, 2017, to two counts of manufacturing methamphetamine along with dismissal of the remaining charges. Defendant then filed a handwritten appeal on July 10, 2017, challenging the denial of his motion to suppress the 2014 search. Defendant also filed a writ of certiorari because he had not notified the State of his intent to appeal prior to the entry of his plea. The Court of Appeals dismissed defendant’s appeal and denied his petition for a writ of certiorari in October of 2018. The court held that defendant had forfeited his right to appeal by failing to provide notice prior to entering his guilty plea, and Rule 21 of the North Carolina Rules of Appellate Procedure barred issuance of the writ. Defendant appealed the decision to the Supreme Court.

The Supreme Court remanded the case for reconsideration in light of two recent decisions, State v. Ledbetter, 371 N.C. 192 (2018), and State v. Stubbs, 368 N.C. 40 (2015). These decisions indicated that the Court of Appeals holds discretion to grant or deny a petition for writ of certiorari that is not limited by Rule 21. The Supreme Court instructed the Court of Appeals to exercise that discretion when considering defendant’s petition. However, in 2019 the Court of Appeals denied defendant’s petition for a second time, citing Rule 21 and a line of decisions indicating that defendant’s failure to provide notice of appeal barred granting his petition. Defendant again appealed the decision.

In the current opinion, the Supreme Court expressly held that the Court of Appeals has complete discretion to grant or deny defendant’s petition, regardless of Rule 21. Additionally, the Court explicitly overruled any precedent that held or implied that the Court of Appeals was constrained by Rule 21 when considering whether to grant a writ of certiorari under similar circumstances. The case was remanded a third time for consideration by the Court of Appeals.

Justice Berger did not participate in the consideration or decision for this case.

(1) In this case where the defendant pleaded guilty to felony speeding to elude arrest pursuant to a plea arrangement, he had no statutory right to appeal. 

(2) However, the court considered the defendant’s petition for writ of certiorari which argued that he did not receive notice and an opportunity to be heard on the amount of attorney’s fees and costs. The court noted that a criminal defendant may file a petition for a writ of certiorari to appeal a civil judgment for attorney’s fees and costs. Here, after the defendant pleaded guilty to felony speeding to elude arrest he was sentenced and the trial court ordered him to pay court costs in the amount of $1,572.50. Before entering monetary judgments against indigent defendants for fees imposed for court appointed counsel, the trial court should ask defendants personally whether they wish to be heard on the issue. Absent a colloquy directly with the defendant, the requirements of notice and opportunity to be heard will be satisfied only if there is other evidence in the record demonstrating that the defendant received notice, was aware of the opportunity to be heard, and chose not to be heard. Here, nothing in the record indicated that the defendant understood he had a right to be heard on the issue, and the trial court did not inform him of that right. The court thus vacated the civil judgment for attorney’s fees and remanded to the trial court.

Notwithstanding the fact that the court was unable to determine whether the trial court had jurisdiction when it entered judgment in this DWI case, the court held—over a dissent--that it would exercise its discretion to treat the defendant’s appeal as a petition for certiorari in order to reach the merits of her argument.

On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 794 S.E.2d 551 (2016) (per curiam), the court reversed, holding that the absence of a procedural rule limits neither the Court of Appeals’ jurisdiction nor its discretionary authority to issue writs of certiorari. After the defendant was charged with DWI, she filed a motion to dismiss, arguing that the State violated certain statutory procedures and State v. Knoll. The trial court denied the motion and the defendant pled guilty, retaining the right to appeal the denial of the motion. The defendant gave notice of appeal and petitioned the Court of Appeals for review by writ of certiorari. The Court of Appeals dismissed the appeal and denied the petition, holding that the defendant did not have a statutory right to appeal from the trial court’s denial of her motion to dismiss prior to her guilty plea and that the petition did not assert grounds included in or permitted by Rule 21. The Supreme Court then remanded to the Court of Appeals for reconsideration in light of State v. Stubbs, 368 N.C. 40 (2015), and State v. Thomsen, 369 N.C. 22 (2016). Upon reconsideration, the Court of Appeals again denied the defendant’s petition for writ of certiorari and dismissed her appeal. The Court of Appeals determined in part that although the statute provides jurisdiction, it was without a procedural process under either Rule 1 or 21 to issue a discretionary writ other than by invoking Rule 2, and the Court of Appeals declined to invoke that rule. The court determined that the Court of Appeals correctly found that it had jurisdiction to issue the writ. However, it mistakenly concluded that the absence of a specific procedural process in the Rules of Appellate Procedure left the court without any authority to invoke that jurisdiction. The Court of Appeals had held that because the defendant’s petition did not assert any of the procedural grounds set forth in Rule 21, it was without a procedural process to issue the writ other than by invoking Rule 2. The court determined that regardless of whether Rule 21 contemplates review of the defendant’s motion to dismiss, if a valid statute gives the Court of Appeals jurisdiction to issue a writ of certiorari, Rule 21 cannot take that jurisdiction away. The court concluded:

Accordingly, the Court of Appeals had both the jurisdiction and the discretionary authority to issue defendant’s writ of certiorari. Absent specific statutory language limiting the Court of Appeals’ jurisdiction, the court maintains its jurisdiction and discretionary authority to issue the prerogative writs, including certiorari. Rule 21 does not prevent the Court of Appeals from issuing writs of certiorari or have any bearing upon the decision as to whether a writ of certiorari should be issued.

Although the defendant failed to timely file a written appeal of the trial court’s sex offender registration and SBM order, the court, in its discretion, allowed the defendant’s petition for writ of certiorari to obtain review of these orders.

In a case where the defendant argued, and the State conceded, that certain indictments were fatally defective, the court held that the defendant had no right under G.S. 15A-1444 to appeal his conviction, entered upon a plea of guilty. Nor had he asserted any grounds under Appellate Rule 21 for the court to issue a writ of certiorari. However, the court exercised its discretionary authority under Appellate Rule 2 to suspend the requirements of the appellate rules and issue a writ of certiorari, finding that manifest injustice would occur if the convictions were allowed to stand on charges for which the trial court lacked jurisdiction to impose sentence.

Under G.S. 15A-1444(e) the defendant had a right to seek the issuance of a writ of certiorari to obtain appellate review of a sentencing proceeding conducted upon his entry of a guilty plea and the court had jurisdiction to issue the writ. The court held that Appellate Rule 21 did not require a holding to the contrary, noting that a defendant’s statutory right to seek issuance of a writ is not abridged by Rule 21.

The Court of Appeals had subject-matter jurisdiction to review, pursuant to the State’s petition for writ of certiorari, a trial court’s grant of its own motion for appropriate relief (MAR). The defendant pleaded guilty to rape of a child by an adult offender and to sexual offense with a child by an adult offender, both felonies with mandatory minimum sentences of 300 months. Pursuant to a plea arrangement, the trial court consolidated the convictions for judgment and imposed a single active sentence of 300 to 420 months. The trial court then immediately granted its own MAR and vacated the judgment and sentence. It concluded that, as applied to the defendant, the mandatory sentence violated the Eighth Amendment; the court resentenced the defendant to 144 to 233 months. The State petitioned the Court of Appeals for a writ of certiorari to review the trial court’s MAR order. The defendant responded, arguing that under State v. Starkey, 177 N.C. App. 264, the court of appeals lacked subject-matter jurisdiction to review a trial court’s sua sponte grant of a MAR. The Court of Appeals allowed the State’s petition and issued the writ. The Court of Appeals found no Eighth Amendment violation, vacated the defendant’s sentence and the trial court’s order granting appropriate relief, and remanded the case for a new sentencing hearing. See State v. Thomsen, ___ N.C. App. ___, ___, 776 S.E.2d 41, 48 (2015). Before the supreme court, the parties disagreed on whether the trial court’s sua sponte motion was pursuant to G.S. 15A-1415(b) (defendant’s MAR) or G.S. 15A-1420(d) (trial court’s sua sponte MAR). The court found it unnecessary to resolve this dispute, holding first that if the MAR was made under G.S. 15A-1415, State v. Stubbs, 368 N.C. 40, 42-43, authorized review by way of certiorari. Alternatively, if the MAR was made pursuant to G.S. 1420(d), G.S. 7A-32(c) gives the Court of Appeals jurisdiction to review a lower court judgment by writ of certiorari, unless a more specific statute restricts jurisdiction. Here, no such specific statute exists. It went on to hold that to the extent Starkey was inconsistent with this holding it was overruled.

Because the provisions of Rule 21 of the Rules of Appellate Procedure prevail over G.S. 15A-1444(e), that rule provides the only circumstances where the court can issue a writ of certiorari: when the defendant lost the right to appeal by failing to take timely action; when the appeal is interlocutory; or when the trial court denied the defendant’s motion for appropriate relief. Here, none of those circumstances applied. One judge on the panel concurred only in the result.

In this Person County case, defendant appealed the post-conviction order revoking his probation for a new criminal offense, requesting a review of the record similar to review of criminal convictions under Anders v. California, 386 U.S. 738 (1967). The Court of Appeals granted certiorari to review defendant’s appeal, and affirmed the order revoking defendant’s probation.

Defendant’s counsel submitted a brief along with defendant’s petition for writ of certiorari seeking “Anders-type review because counsel had examined the record and applicable law and was ‘unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal.’” Slip Op. at 2. The majority held that the lack of briefing on appeal constrained the court’s ability to review arguments against the revocation under the rules of appellate procedure, “as any argument not advanced in an appellant’s brief is abandoned under Rule 28 . . . [and] based on the reasoning of our Supreme Court’s opinion in State v. Ricks, 378 N.C. 737 [] (2021), we must conclude that it would be an abuse of our discretion to invoke Rule 2.” Slip Op. at 3. Because the majority held that the Ricks precedent prevented the Court of Appeals from invoking Rule 2 to suspend Rule 28, the court simply examined the indictments to confirm the trial court had jurisdiction to try defendant, and examined no other arguments before affirming the trial court’s order revoking probation.

Judge Inman concurred in the result only, and wrote separately suggesting that the court had “the jurisdiction and authority to consider the issues raised in [d]efendant’s Anders brief on appeal from an order revoking his probation without invoking Rule 2,” but that after conducting an Anders-style inquiry, the judge found no prejudicial error. Id. at 5.

In this Wake County case, defendant appealed his convictions for statutory rape and taking indecent liberties with a child, arguing the trial court improperly excluded testimony from his expert. The Court of Appeals dismissed defendant’s appeal.

In 2019, defendant had sex with a 15-year-old girl who he intercepted on her walk home from a bus stop. When the case reached trial, defendant attempted to have his expert, a registered nurse, testify that the victim was not penetrated by defendant. The State challenged this testimony under Rule of Evidence 704. After voir dire of the expert, the trial court would not allow her to testify regarding whether a sexual assault occurred, and defendant chose not to call her due to the limitation on her testimony. Defendant was convicted on all charges and timely appealed. Due to significant procedural errors in his notice of appeal, defendant filed a petition for writ of certiorari.

Walking through the procedural issues with defendant’s appeal, the court first noted the missing certificate of service issue was waived by the State when they failed to raise the issue and filed a reply brief. The court then pointed out defendant preserved the expert testimony issue for appeal by objecting during the trial, drawing a contrast with the procedural defect present in State v. Ricks, 378 N.C. 737, 741. Slip Op. at 10-11. However, defendant failed to “designate the judgment or order from which appeal is taken” as required by Rule of Appellate Procedure 4(b). This defect meant that defendant was required to show merit or prejudice justifying the issuance of a writ of certiorari to proceed. Id. at 12. 

The court turned to the expert testimony issue under Rule of Evidence 702, explaining the two-prong test applicable to expert testimony conducted under the trial court’s discretion. The court explained the “trial court first applied the factors outlined in [Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)] when determining whether [defendant’s expert] was qualified as an expert, focusing on the absence of reliable principles and methods,” then “contemplated how to balance [defendant’s expert’s] lack of credentials and training with [d]efendant’s right to present a defense.” Id. at 15. Defendant failed to show any abuse of the trial court’s discretion during this process, leading the court to deny his petition and dismiss the appeal.

In this Davidson County case, the defendant pled guilty to a drug offense and received 12 months of supervised probation. His probation officer filed a violation report alleging positive drug screens and other violations. At the violation hearing, the defendant chose to represent himself. The court found a willful violation and agreed to extend probation by six months and to hold the defendant in custody for up to two weeks until he could begin drug treatment at a treatment center. The defendant said “that’s crazy,” accused the court of activating his sentence, and suggested that the court be “f—king honest with [him].” After being warned about his language, he accused his probation officer of “start[ing] this sh— all over again.” The court began contempt proceedings, found the defendant in direct criminal contempt and sentenced him to 30 days. He sought appellate review.

As to the probation modification, the Court of Appeals first found that he had no right to appeal. In criminal cases, appellate rights are provided entirely by statute, and G.S. 15A-1347(a) allows an appeal of a probation violation only when the court activates a sentence or imposes special probation. The trial court did neither in this case.

The defendant therefore sought certiorari review. The lead opinion, relying on State v. Edgerson, 164 N.C. App. 712 (2004), concluded that certiorari review is not available for probation modifications. Two judges concurred separately, each disagreeing with the lead opinion on that point, but the panel was unanimous that even if such authority exists, the defendant’s petition was “wholly frivolous” and so certiorari review should be denied.

As to the contempt finding, the Court agreed to review the matter under its certiorari jurisdiction. After finding the defendant in contempt, the trial court stated, “Enter notice of appeal for his contempt citation,” to which the defendant responded, “Thank you.” Although this was not a proper notice of appeal, the defendant’s intent to appeal was obvious so certiorari review was justified. The court proceeded to uphold the contempt conviction, finding that the defendant’s “words and actions willfully interrupted the proceedings and impaired the respect due the [trial] Court’s authority” in violation of G.S. 5A-11(a).

The defendant was convicted at trial of driving while impaired and habitual DWI in Guilford County. (1) In its discretion, the Court of Appeals granted the defendant’s petitions for writ of certiorari to review the criminal judgment and civil judgment for attorney fees. Following his conviction for habitual impaired driving, the defendant filed two pro se notices of appeal. Those notices did not contain a certificate of service indicating service on the State and failed to name the court to which the appeals were taken. Appellate counsel was later appointed, who recognized the pro se notices of appeal were potentially defective and filed two petitions for writ of certiorari seeking appellate review. The pro se notices of appeal were an indication that the defendant intended to preserve his right to appellate review, and the Court of Appeals previously held in an unpublished case that the types of defects in the notices of appeal at issue did not require dismissal for lack of jurisdiction. Where (as happened here) the State does not object, the Court of Appeals may exercise jurisdiction by granting the petitions for writ of certiorari. Thus, the Court of Appeals had jurisdiction to consider the defendant’s arguments.

(2) During trial, the defendant moved to dismiss for insufficiency of the evidence at the close of the State’s case in chief. The defendant thereafter presented evidence and failed to renew the sufficiency motion at the close of all evidence. Because sufficiency review was therefore not preserved, the defendant requested that the Court of Appeals invoke Rule 2 of the Rules of Appellate Procedure to suspend the preservation rules and review the issue. The court declined to do so and thus affirmed the habitual DWI conviction.

(3) The trial court awarded the defendant’s trial counsel attorney fees as a civil judgment without giving the defendant an opportunity to personally be heard, in violation of G.S. § 7A-455. More than 35 recent cases have reversed the attorney fee award in similar circumstances. Following that line of cases, the majority of the panel vacated the attorney fee order and remanded for a hearing on the matter where the defendant could be personally heard or for “other evidence in the record demonstrating that the defendant received notice, was aware of the opportunity to be heard on the issue, and chose not to be heard.” Slip op. at 11.

Judge Tyson dissented. He would have refused to grant the petitions for writ of certiorari and dismissed all the defendant’s arguments as frivolous.

The defendant was charged with second-degree rape and first-degree kidnapping in Cabarrus County and was convicted at trial. Benzodiazepines were found in the victim’s urine, and the State presented expert testimony at trial on the urinalysis results. The expert witness did not conduct the forensic testing but independently reviewed the test results. The defendant’s hearsay and Confrontation Clause objections were overruled. Expert testimony from another witness established the presence of a muscle relaxant in the victim’s hair sample and indicated that the two drugs in combination would cause substantial impairment. There was additional evidence of a substantial amount of the defendant’s DNA on the victim, as well as evidence of prior similar sexual assaults by the defendant admitted under Rule 404(b) of the North Carolina Rules of Evidence. He was convicted of both charges and appealed. A divided Court of Appeals affirmed, finding no error (summarized here). Among other issues, the majority rejected the defendant’s arguments that the admission of the substitute analyst testimony and the 404(b) evidence was error. The defendant appealed the Confrontation Clause ruling and the North Carolina Supreme Court later granted discretionary review on the Rule 404(b) issue.

Assuming without deciding that admission of the substitute analyst testimony was error, the error was harmless beyond a reasonable doubt. Testimony from the substitute analyst established the presence of benzodiazepines in the victim’s blood based first on a preliminary test, and then a confirmatory test. While the defendant objected to all of this testimony at trial, only the testimony regarding the confirmatory test was challenged on appeal. Thus, “[e]ven in the absence of [the substitute analyst’s] subsequent testimony regarding the confirmatory testing, there was still competent evidence before the jury of the presence of Clonazepam in [the victim’s] urine sample.” Pabon Slip op. at 23. The Court noted that evidence from the other analyst established a different impairing substance in the victim’s hair which could have explained the victim’s drugged state on its own. In light of this and other “overwhelming” evidence of guilt, any error here was harmless and did not warrant a new trial.

As to the 404(b) evidence, the Court likewise assumed without deciding that admission of evidence of the previous sexual assaults by the defendant against other women was error but determined that any error was not prejudicial under the facts. Unlike a case where the evidence amounts to a “credibility contest”—two different accounts of an encounter but lacking physical or corroborating evidence—here, there was “extensive” evidence of the defendant’s guilt. This included video of the victim in an impaired state soon before the assault and while in the presence of the defendant, testimony of a waitress and the victim’s mother regarding the victim’s impairment on the day of the offense, the victim’s account of the assault to a nurse examiner, the victim’s vaginal injury, the presence of drugs in the victim’s system, and the presence of the a significant amount of the defendant’s DNA on the victim’s chest, among other evidence. “We see this case not as simply a ‘credibility contest,’ but as one with overwhelming evidence of defendant’s guilt.” Id. at 34. Thus, even if the 404(b) evidence was erroneously admitted, it was unlikely that the jury would have reached a different result. The Court of Appeals decision was therefore modified and affirmed.

Chief Justice Newby concurred separately. He joined in the result but would not have discussed the defendant’s arguments in light of the Court’s assumption of error.

The court per curiam affirmed the decision below, State v. Hester, 224 N.C. App. 353 (Dec. 18, 2012), which had held, over a dissent, that the defendant’s first asserted issue must be dismissed because although he argued plain error, he failed provide an analysis of the prejudicial impact of the challenged evidence.

The facts of this Haywood County case were previously summarized here following the North Carolina Supreme Court’s decision in State v. Shuler, 2021-NCSC-89, 378 N.C. 337, 861 S.E.2d 512 (Aug. 13, 2021) (Shuler I). The North Carolina Supreme Court held in Shuler Ithat the Court of Appeals erred by admitting testimony regarding the defendant’s pre-arrest silence before the defendant testified at trial. Shuler I held that the defendant did not forfeit her Fifth Amendment right when she provided notice of her intent to invoke an affirmative defense and that the State may not preemptively impeach a defendant who has not testified. The North Carolina Supreme Court remanded the case to the Court of Appeals to determine whether the erroneously admitted testimony was harmless beyond a reasonable doubt.

On remand, the Court of Appeals held that admission of the improper evidence was harmless beyond a reasonable doubt. The evidence consisted of a detective’s testimony that at the time the defendant was discovered with drugs she did not make any statements about the person she later contended had threatened her in order to convince her to hold on to the drugs. The Court of Appeals reasoned that this testimony related solely to the affirmative defense of duress, a defense that was supported only by the defendant’s testimony and which the jury was “clearly likely” to have rejected. Id. at 14. The Court concluded there was substantial and overwhelming evidence that the defendant knowingly possessed the drugs for which she was charged. It further noted that the State made no additional references to the defendant’s pre-arrest silence following the detective’s testimony and did not reference the defendant’s silence in closing argument. The Court thus deemed the impact of the reference to the defendant’s silence to be de minimis.

In this Rockingham County case, the Supreme Court modified and affirmed the Court of Appeals decision that defendant had waived appellate review of the denial of his request for a self-defense instruction to the jury. 

In March of 2017, defendant and the mother of one of his sons had an altercation at a hotel in Reidsville. Defendant struck and choked the female victim; eventually the victim grabbed a pistol in the hotel room to defend herself. Testimony differed on whether the victim intentionally fired the pistol into the floor of the hotel or if it went off in a struggle, but defendant was struck in the calf by a bullet. After the altercation, the victim left the hotel room and filed a report with police. Defendant was indicted on several assault and firearm charges. At trial, defendant did not give notice that he planned to argue self-defense, and did not testify on his own behalf; during the jury instruction conference defendant’s counsel agreed with the proposed instructions, which did not include self-defense. However, on the morning after the jury instruction conference, defense counsel requested that the court include an instruction on self-defense, a request that the trial court denied. 

The Court of Appeals held that defendant failed to preserve his challenge to the denial of his requested instruction because he did not object during the jury instruction conference or after instructions were given to the jury, representing invited error. The Supreme Court disagreed with this conclusion, explaining that N.C. Rule of Appellate Procedure 10(a)(2) does not require objection specifically during the jury instruction conference, only an objection “before the jury retires to consider its verdict,” meaning defendant’s challenge was sufficient. Slip. Op. at 20-21. Because defendant made his request prior to the jury retiring, and the trial court denied defendant’s request, the court held that “defendant’s challenge . . . was properly preserved for purposes of appellate review even though defendant did not raise the self-defense issue at the jury instruction conference, expressed initial agreement with the trial court’s proposed instructions, and did not lodge any sort of objection to the instructions that the trial court actually gave . . . .” Id. at 21-22. The court also noted that defendant’s failure to provide notice of his intention to argue self-defense as required by G.S § 15A-905(c)(1) did not alter the result, as that requirement is a discovery-related obligation, and the record did not reflect imposition of a discovery sanction precluding the self-defense argument. Id. at 23-24. 

Moving to the substantive issue of whether the trial court erred by denying the self-defense instruction, the Supreme Court agreed with the Court of Appeals that the record did not support defendant’s argument of self-defense. Applying the self-defense standard from G.S. § 14-51.3(a), the court found that “the record contains no evidence tending to show that defendant assaulted [the victim] for the purpose of defending himself from the use of unlawful force on the part of [the victim].” Id. at 27. 

Chief Justice Newby, joined by Justices Berger and Barringer, concurred in part and dissented in part, disagreeing with the opinion regarding whether defendant preserved his request on appeal but agreeing with the majority that the trial court properly denied the instruction on self-defense. Id. at 30. 

Justice Earls concurred in part and dissented in part, agreeing with the opinion that defendant preserved the issue of his request for appellate review, but disagreeing with the majority regarding the trial court’s denial of defendant’s request for the self-defense instruction. Id. at 37. 

The defendant was convicted of impaired driving in Macon County and appealed. The defendant was driving a moped and collided with a car. A trooper responded, investigating and preparing a crash report (and later charging the defendant). At trial, the trooper testified during cross-examination by the defense about his investigation into the accident, recounting his impression of when and how the crash occurred without objection. The defendant complained on appeal that this testimony amounted to improper lay opinion since the trooper did not see the accident occur and was not tendered as an expert. Because no objection was made at trial, the defendant claimed plain error. The State argued that the defendant invited any error, and the Court of Appeals agreed. “Statements elicited by a defendant on cross-examination are, even if error, invited error, by which a defendant cannot be prejudiced as a matter of law.” Because this testimony was elicited by the defendant, any appellate review of the issue (including plain error review) was waived. The trial court was therefore unanimously affirmed.

The defendant failed to preserve for appellate review his assertion of error regarding testimony by the State’s expert in firearms and tool mark examination. On appeal, the defendant argued that the trial court committed plain error in allowing the expert’s testimony, asserting that unqualified tool mark identification is too unreliable to comply with Daubert. The court declined to reach the issue, finding that the defendant invited the error by eliciting the expert’s unqualified opinion. At no point in the State’s questioning did the expert state any particular degree of certainty, posit that her finding was absolutely conclusive, claim that her opinion was free from error, or expressly discount the possibility that the casings could have been fired from different guns. That testimony came instead on cross-examination by defense counsel.

In this drug case the defendant was not entitled to appellate review of whether the trial court erroneously admitted hearsay evidence. The defendant failed to demonstrate that any “judicial action” by the trial court amounted to error where he not only failed to object to admission of the statement, but also expressly consented to its admission. Even if error occurred, G.S. 15A-1443(c) (a defendant is not prejudiced by an error resulting from his own conduct) precludes a finding of prejudice. Here, by asking about the statement during cross-examination of the State’s witness, defense counsel opened the door to the State’s subsequent questions concerning the statement and its introduction.

In this attempted murder and assault case, any error with respect to admission of testimony regarding gangs was invited. In his motion in limine, the defendant expressly requested that the trial court either exclude all evidence pertaining to gangs or in the alternative allow cross-examination on the subject. The trial court granted the alternative relief sought and the defendant himself cross-examined and elicited testimony with respect to gangs.

State v. Clonts, 254 N.C.App. 95, 802 S.E.2d 531 2017-06-20 aff'd on other grounds, 371 N.C. 191, 813 S.E.2d 796 (Jun 8 2018)

The trial court did not err by failing to instruct the jury on imperfect self-defense and imperfect defense of others where the defendant did not request that the trial court give any instruction on imperfect self-defense or imperfect defense of others. In fact, when the State indicated that it believed that these defenses were not legally available to the defendant, defense counsel agreed with the State. The defendant cannot show prejudice from invited error.

State v. Langley, 254 N.C.App. 186, 803 S.E.2d 166 2017-06-20 rev’d on other grounds, 371 N.C. 389, 817 S.E.2d 191 (Aug 17 2018)

Although juror misconduct occurred, the defendant’s challenge failed because the error was invited. After it was reported to the judge that a juror did an internet search of a term used in jury instructions, the judge called the jurors into court and instructed them to disregard any other information and to follow the judge’s instructions. When the defendant moved for mistrial, the trial court offered to continue the inquiry, offering to interview each juror. The defendant did not respond to the trial judge’s offer. The court held: “Defendant is not in a position to repudiate the action and argue that it is grounds for a new trial since he did not accept the trial court’s offer to continue the inquiry when the judge offered to do so. Therefore, if any error took place, Defendant invited it.”

In this Mecklenburg County case, defendant appealed his convictions for first-degree felony murder and possession of a firearm by a felon, arguing plain error in admitting an interview recording and error in calculating his prior record level. The Court of Appeals found no plain error or error. 

Defendant was convicted of a murder committed at a Charlotte bus stop in May of 2018. At trial, a recording of an interview conducted by detectives with defendant was published to the jury. The recording was redacted by agreement between the parties. Defendant did not object to the publication of the recording to the jury during trial. However, on appeal, defendant argued that admitting the recording was plain error as portions contained hearsay, inadmissible character evidence, was unfairly prejudicial, and shifted the burden of proving his innocence.

Although the State argued that defendant’s appeal was barred by the invited error doctrine, the Court of Appeals rejected this argument, noting that although defendant agreed to the redactions of the recording, he did not take any affirmative action to admit the recording. Despite this, the court found no plain error in admitting the recording, noting that the record also contained two eyewitnesses who identified defendant as the shooter, surveillance evidence showing someone dressed like defendant at the scene, and testimony from defendant himself corroborating the testimony of the witnesses and surveillance footage. The court also found no issue with the prior record level calculation, noting the trial court used computerized criminal history information known as DCI-CCH to establish defendant’s prior convictions. The court explained that “a DCI-CCH is a record maintained by the Department of Public Safety and may be used to prove Defendant’s prior convictions pursuant to N.C. Gen. Stat. § 15A-1340.14(f).” Slip Op. at 10. 

In this Ashe County case, the Supreme Court reversed the Court of Appeals decision finding plain error in his convictions for rape of a child and sex offense with a child. The Court held that defendant’s arguments regarding admitted testimony and statements in closing argument did not rise to the level of the plain error standard. 

In 2015, the victim reported that a close friend of her family had been taking her to secluded locations and sexually abusing her. In 2021 defendant was charged with the sexual offenses, and at trial both the victim and defendant testified. During defendant’s testimony, the prosecutor asked him several questions about sexual relationships he had with adult women, including a text exchange with one woman, and defendant’s approach to contraception, which was the “pull-out method.” During closing argument, the prosecutor referred back to these parts of defendant’s testimony, suggesting that defendant engaged in sexual encounters with a woman too intoxicated to recall, and that defendant could have given the victim sexually transmitted infections. Defendant did not object to any of these questions or statements. After defendant was convicted, he argued plain error in admitting the testimony and reversible error in allowing the prosecutor’s closing argument statements. The Court of Appeals majority agreed, ordering a new trial. 

Taking up the State’s appeal based on the dissent, the Supreme Court first explained the purpose of the requirement for an objection at trial to preserve an issue for appeal. The Court noted that this preservation rule helps prevent “gamesmanship” of the appellate process, but “[p]lain error exists for the rare cases where the harshness of this preservation rule vastly outweighs its benefits.” Slip Op. at 7. The Court emphasized the exacting level of the plain error standard, noting:

The question is not whether the challenged evidence made it more likely that the jury would reach the same result. Instead, the analysis is whether, without that evidence, the jury probably would have reached a different result. This is a crucial distinction because something can become more likely to occur yet still be far from probably going to occur. Id. at 11. In the current case the Court found an example of this error, as the Court of Appeals majority focused on the prejudicial nature of the testimony and how it may have made the jury more likely to convict, which was not the different result required by the plain error standard. 

Moving to the closing argument statements, the Court explained that plain error is not applicable, as it is limited to evidentiary or instructional errors. Instead, the “grossly improper” standard applied, which “applies only when the prosecutor’s statements went so far beyond the ‘parameters of propriety’ that the trial court is forced to intervene to ‘protect the rights of the parties and the sanctity of the proceedings.’” Id. at 16, quoting State v. Jones, 355 N.C. 117, 133 (2002). Because the Court of Appeals majority based part of its reasoning about the closing argument on the improperly admitted evidence discussed above, that portion of the conclusion was invalidated when the Court concluded it was not plain error to admit the evidence. A second portion of defendant’s arguments hinged on inflammatory remarks from the prosecutor regarding the possibility of sexually transmitted infections, and the Court agreed that this was an “improper appeal to the jury’s emotions, rather than an appeal to reason.” Id. at 17. However, because defendant did not object, these statements were subject to the stringent “grossly improper” standard, and the Court did not agree that they represented reversible error. The court concluded by noting that defendant could still pursue an ineffective assistance of counsel claim, as the standard was lower than that of plain error review. 

Justice Earls, joined by Justice Riggs, dissented and would have held that the Rule of Evidence 404(b) evidence in the trial was improperly admitted, and represented plain error. Id. at 22. 

A few days after the defendant was evicted from her apartment, the defendant, along with one identified companion and one unidentified companion, broke into her landlord’s home. The defendant was armed with a machete and both companions were armed with a hammer. When the three entered the landlord’s bedroom, the defendant immediately announced to the landlord that she was there to kill him. The defendant threw the machete at the landlord, and the companions proceeded to beat him and strike him in the head with the machete and the hammer. The defendant then began to attack the landlord’s girlfriend and baby with the machete. The girlfriend was able to escape with the baby and called 911. At trial, the defendant was found guilty of attempted first-degree murder, conspiracy to commit first-degree murder, and assault with a deadly weapon with intent to kill inflicting serious injury. 

On appeal, the Court of Appeals, in a divided opinion, concluded that the trial court plainly erred by instructing the jury on the conspiracy to commit first-degree murder charge. The majority reasoned that the indictment named only the identified companion as the defendant’s co-conspirator, and the evidence presented at trial supported a finding that the defendant conspired with both an identified and an unidentified companion, but the jury instructions instructed that a conspiracy could be found if “the defendant and at least one other person entered into an agreement.” Slip op. at ¶ 7. Accordingly, the majority held that the defendant’s fundamental right to be informed of the accusations against her was violated.

The Supreme Court reversed the decision of the Court of Appeals, holding that the defendant failed to demonstrate prejudice because the State presented overwhelming and uncontroverted evidence of defendant’s guilt at trial, and the Court of Appeals erred by failing to perform the required prejudice analysis required for plain error review. The Court concluded that given the overwhelming evidence of a conspiracy between the defendant and the identified companion to kill the landlord, there was not a reasonable probability that the jury would have returned a different verdict had the companion been identified in the jury instructions as the defendant’s co-conspirator rather than a mere instruction that an agreement must be reached with at least one other person.

On discretionary review of a unanimous decision below, 259 N.C. App. 127 (2018), the court reversed the Court of Appeals and held that appellate counsel was not ineffective for failing to cite a particular line of cases because the facts of this case were distinguishable from those in the line of cases the Court of Appeals would have had appellate counsel cite.  The Court of Appeals had held that appellate counsel was ineffective for failing to make the argument under State v. Pakulski, 319 N.C. 562 (1987) that a trial court commits plain error when it instructs a jury on disjunctive theories of a crime, one of which is erroneous, and it cannot be discerned from the record the theory upon which the jury relied.  Noting that its opinion in Pakulski “lacks clarity” with respect to the standard of review applied there, the court explained that Pakulski applied the harmless error rather than plain error standard, as evidenced by subsequent precedent.  Because the defendant in this case did not object to the trial court’s jury instructions, the court explained that Pakulski “would have had little precedential value in the instant case, and appellate counsel’s failure to cite it was not objectively unreasonable.”  The court went on to explain that the arguments made by appellate counsel were appropriate for plain error review as counsel argued that the jury was presented with multiple theories of guilt, one of which was erroneous, and the error had a probable impact on the jury’s verdict.

Justice Ervin, joined by Justice Newby, concurred, agreeing with the court’s interpretation of Pakulski and its determination that appellate counsel was not ineffective, but writing separately to clarify the general matter that a defendant may be convicted of possession of a firearm by a felon under an acting in concert theory.  Noting that neither the North Carolina Supreme Court nor the Court of Appeals has ever directly held that a defendant can be convicted of that offense on the basis of an acting in concert theory, Justice Ervin described the “general availability of the acting in concert doctrine in possession-related cases” and stated that he was not persuaded that the theory is inapplicable to the offense of possession of a firearm by a felon.

Justice Earls, joined by Justice Davis, dissented, expressing the view that the majority opinion’s explanations of Pakulski and appellate counsel’s arguments were inaccurate.  In Justice Earls’ view, Pakulski applied the plain error standard of review and appellate counsel did not meet the obligation to argue to the Court of Appeals that the defendant could not be convicted of possession of a firearm by a felon based on someone else’s possession.

On discretionary review of a unanimous, unpublished decision of the Court of Appeals, ___ N.C. App. ___, 803 S.E.2d 463 (2017), the court held that although the trial court erred in giving an aiding and abetting instruction, the Court of Appeals incorrectly concluded that the error amounted to plain error. The defendant was charged with manufacturing methamphetamine and trafficking in methamphetamine by manufacture and by possession. The trial court instructed the jury—without objection—that it could find the defendant guilty either through a theory of individual guilt or as an aider and abettor. The defendant was convicted and appealed. The Court of Appeals held that the trial court erred in giving the aiding and abetting instruction because it was not supported by the evidence, and that this error constituted plain error. The State sought review. The Supreme Court agreed that the trial court erred in giving the aiding and abetting instruction but held that no plain error occurred. To demonstrate that a trial court committed plain error, the defendant must show that a fundamental error occurred. To show this, a defendant must establish prejudice—that after examining the entire record, the error had a probable impact on the jury’s finding of guilt. Because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings. Here, the Court of Appeals indicated that the lack of overwhelming and uncontroverted evidence required the conclusion that a jury probably would have reached a different result had the erroneous instruction not been given. The Supreme Court found that this was error, clarifying that its precedent does not hold that plain error is shown, and a new trial is required, unless the evidence against the defendant is overwhelming and uncontroverted. Considering the entire record, the court held that ample evidence of the defendant’s individual guilt made it unlikely that the improper instruction had a probable impact on the jury’s finding that the defendant was guilty. Specifically, the court noted all of the items found throughout the defendant’s residence that the State’s witnesses identified as being commonly used in the production of methamphetamine, including immediate precursor chemicals to the manufacture of methamphetamine, and all of the evidence found inside the one-pot meth lab and burn barrel on the defendant’s property, including the plastic bottles that tested positive for methamphetamine and pseudoephedrine. It concluded: “After examining the entire record, we conclude that the erroneous aiding and abetting instruction did not have a probable impact on the jury’s finding that defendant was guilty because of the evidence indicating that defendant, individually, used the components found throughout his house to manufacture methamphetamine in the one-pot meth lab on his own property.”

The court reversed the decision below in State v. Carter,216 N.C. App. 453 (Nov. 1, 2011) (in a child sexual offense case, the trial court committed plain error by failing to instruct on attempted sexual offense where the evidence of penetration was conflicting), concluding that the defendant failed to show plain error. The court held that when applying the plain error standard

[t]he necessary examination is whether there was a “probable impact” on the verdict, not a possible one. In other words, the inquiry is whether the defendant has shown that, “absent the error, the jury probably would have returned a different verdict.” Thus, the Court of Appeals’ consideration of what the jury “could rationally have found,” was improper.

Slip Op at 7 (citations omitted). Turning to the case at hand, the court found even if the trial court had erred, the defendant failed to show a probable impact on the verdict.

The court modified and affirmed State v. Towe, 210 N.C. App. 430 (Mar. 15, 2011) (plain error to allow the State’s medical expert to testify that the child victim was sexually abused when no physical findings supported this conclusion). The court agreed that the expert’s testimony was improper but held that the court of appeals mischaracterized the plain error test. The court of appeals applied a “highly plausible that the jury could have reached a different result” standard. The correct standard, however, is whether a fundamental error occurred that “had a probable impact on the jury’s finding that the defendant was guilty.” Applying that standard, the court found it satisfied.

Plain error review is not available for a claim that the trial court erred by requiring the defendant to wear prison garb during trial. Plain error is normally limited to instructional and evidentiary error.

Reaffirming its decision in State v. Odom, 307 N.C. 655, 660 (1983), the court clarified “how the plain error standard of review applies on appeal to unpreserved instructional or evidentiary error.” It stated:

For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error “had a probable impact on the jury’s finding that the defendant was guilty.” Moreover, because plain error is to be “applied cautiously and only in the exceptional case,” the error will often be one that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”

(citations omitted). Applying that rule to the case at hand, the court held that the court of appeals applied the incorrect formulation of the plain error standard in State v. Lawrence, 210N.C. App. 73 (Mar. 1, 2011) (holding that the trial judge committed plain error by failing to instruct the jury on all elements of conspiracy to commit armed robbery). Although the trial judge erred (the judge instructed the jury that armed robbery involved a taking from the person or presence of another while using or in the possession of a firearm but failed to instruct on the element of use of the weapon to threaten or endanger the life of the victim), the error did not rise to the level of plain error.

On remand from the Supreme Court’s opinion in State v. Goins, 2021-NCSC-65 (2021) directing the Court of Appeals to address the defendant’s remaining issues on appeal, the court determined that even if the trial court erred by allowing an investigator to interpret  certain video footage or in failing to instruct on a lesser-included offense, those assumed errors did not rise to the level of plain error.  The court noted that the Supreme Court already had interpreted under a less taxing standard certain other evidence in the case as “virtually uncontested” evidence of the defendant’s guilt and that it would create a paradox for the Court of Appeals to collaterally undermine that analysis by finding plain error with respect to the assumed errors at issue.

The defendant was convicted of misdemeanor stalking in district court in Forsyth County and sentenced to time served. The defendant filed a pro se written notice of de novo appeal to superior court on the ninth day after the district court’s judgment. The State moved to dismiss the appeal under G.S. 15A-1431(d). The superior court dismissed the appeal and a petition for writ of certiorari, and the defendant sought certiorari review in the Court of Appeals.

G.S. 15A-1431 proscribes jurisdictional rules governing criminal appeals from district to superior court. A defendant typically has 10 days from the time of judgment to give notice of de novo appeal by filing a written notice of appeal or by giving notice in open court. Under subsection (d), however, once a defendant complies with a district court judgment, notice of appeal must be given by the defendant in person before the presiding judge or certain other officials. According the State, the defendant had complied with the judgment, since he already served the sentence imposed by the district court. His notice of appeal was therefore defective and deprived the superior court of jurisdiction to hear the appeal. The defendant maintained that his pretrial confinement (leading to the time served judgment) could not serve as voluntary compliance with the judgment within the meaning of the statute. The Court of Appeals agreed with the defendant.

Under the plain language of the statute, “the word ‘compliance’ carries with it a connotation of voluntariness.” Slip op. at 5. Official commentary to the statute also supported this view. In the court’s words:

[The defendant’s] purported ‘compliance’ with his criminal sentence was not his choice. He was involuntarily detained in pre-trial confinement while awaiting trial and was later credited with time served . . . [The defendant] therefore properly gave notice of appeal by doing so in writing within ten days of entry of judgment. Id. at 6.

The superior court’s dismissal of the appeal was therefore unanimously reversed, and the matter remanded for trial in superior court.

(No. COA13-661). The court denied the defendant’s motion to strike the State’s brief, which was filed in an untimely manner without any justification or excuse and after several extensions of the time within which it was authorized to do so had been obtained. However, the court “strongly admonished” counsel for the State “to refrain from engaging in such inexcusable conduct in the future” and that counsel “should understand that any repetition of the conduct disclosed by the present record will result in the imposition of significant sanctions upon both the State and himself personally.”

The court reversed State v. Oates, 215 N.C. App. 491 (Sept. 6, 2011), and held that the State’s notice of appeal of a trial court ruling on a suppression motion was timely. The State’s notice of appeal was filed seven days after the trial judge in open court orally granted the defendant’s pretrial motion to suppress but three months before the trial judge issued his corresponding written order of suppression. The court held that the window for filing a written notice of appeal in a criminal case opens on the date of rendition of the judgment or order and closes fourteen days after entry of the judgment or order. The court clarified that rendering a judgment or an order means to pronounce, state, declare, or announce the judgment or order and is “the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy.” Entering a judgment or an order is “a ministerial act which consists in spreading it upon the record.” It continued:

For the purposes of entering notice of appeal in a criminal case . . . a judgment or an order is rendered when the judge decides the issue before him or her and advises the necessary individuals of the decision; a judgment or an order is entered under that Rule when the clerk of court records or files the judge’s decision regarding the judgment or order.

In this case involving convictions for kidnapping, communicating threats, assaults, breaking or entering, rape, and sexual assault, the court held that because a recording equipment malfunction prevented the court reporter from producing a full transcript of the trial, including crucial portions of the victim’s testimony such as cross-examination, the defendant is entitled to a new trial. The defendant’s trial began on 16 August 2016. On 19 August 2016 the jury returned its verdicts. On appeal the defendant argued that he was denied a meaningful appeal because a portion of the trial transcript from 18 August 2016 is missing. The court found that the defendant had made sufficient efforts (described in the opinion) to reconstruct the missing portion of the transcript and that the alternative was inadequate. On the latter point, appellate counsel was able only to verify that cross-examination of the victim took place at this time, but not the substance of that testimony. The court further found that the lack of an adequate alternative to a verbatim transcript denied the defendant of meaningful appellate review such that a new trial is required.

In this felon in possession of a firearm case, the defendant failed to submit an adequate record on appeal to support his challenge to the unanimity of the jury verdict. A juror entered the courtroom during the jury charge conference on a flight instruction. The defendant argued that because the juror possibly became privy to information outside of the presence of the other jurors, his right to a unanimous jury verdict was violated. The court declined to consider this issue because the defendant failed to provide a sufficient record to allow meaningful appellate review. The transcript is devoid of any information beyond the juror’s entrance into the courtroom during the charge conference. It is silent as to whether the juror proceeded past the courtroom door. The trial court’s statement, as indicated in the record, suggests that the juror immediately exited the courtroom, as did the fact that the charge conference continued. The defendant did not submit a supplemental narrative to provide context for the alleged error. Review of this matter would require speculation as to the length of time the juror was in the courtroom and information he or she might have overheard. There is a long-standing presumption in favor of regularity, with the burden on the appellant to show error. Here, the defendant did not produce any evidence overcoming that presumption.

The court rejected the defendant’s argument that she was entitled to a new trial due to the lack of a trial transcript. After being given numerous extensions, the court reporter failed to produce a trial transcript. The defendant claimed this failure violated her right to effective appellate review, effective assistance of counsel, due process of law, and equal protection. The court disagreed, concluding that the unavailability of a verbatim transcript does not automatically constitute error. Rather, the defendant must show that the missing record resulted in prejudice. The court noted that the absence of a complete transcript does not prejudice a defendant when alternates are available that fulfill the function of a transcript and provide the defendant with a meaningful appeal. Here, the parties were able to reconstruct the testimonial evidence than other trial proceedings. The narrative stipulated to by the parties contains sufficient evidence to understand all the issues presented on appeal.

In this Onslow County case, defendant appealed his convictions for statutory rape, incest, and indecent liberties with a child. Defendant argued (1) a missing page of the transcript justified a new trial; (2) error in denying his motion to dismiss the incest charge; (3) error in denying his motion to suppress; and (4) a clerical error in the judgment required remand. The Court of Appeals did not find justification for a new trial or error with denial of the motion to suppress, but did vacate defendant’s incest conviction and remanded the case for correction of the clerical error on the judgment and resentencing. 

In 2018, the 15-year-old victim of defendant’s sexual advances moved in with defendant and his wife in Jacksonville. The victim is the daughter of defendant’s wife’s sister, making her defendant’s niece by affinity, not consanguinity. During several encounters, defendant made sexual advances and eventually engaged in sexual contact with the victim, and she reported this conduct to her father, who called the police. Prior to his trial, defendant moved to suppress statements made to after his arrest by the Onslow County Sheriff’s Office, but the trial court denied the motion. 

Reviewing (1), the Court of Appeals explained that a missing page from a trial transcript does not automatically justify a new trial. Instead, the applicable consideration is whether the lack of a verbatim transcript deprives the defendant of a meaningful right to appeal, and the court looked to the three-part test articulated in State v. Yates, 262 N.C. App. 139 (2018). Because defendant and his counsel “made sufficient reconstruction efforts that produced an adequate alternative to a verbatim transcript, he was not deprived of meaningful appellate review.” Slip Op. at 9.

Turning to (2), the incest charge, the court agreed with defendant that “the term ‘niece’ in [G.S.] 14-178 does not include a niece-in-law for the purposes of incest.” Id. The opinion explored the history of the incest statute and common law in North Carolina in extensive detail, coming to the conclusion that a niece-in-law does not represent a niece for purposes of criminal incest. As an illustration of the “absurd results” under North Carolina law if a niece by affinity were included, “an individual could marry their niece-in-law . . . [but] that individual would be guilty of incest if the marriage were consummated.” Id. at 20. As a result, the court vacated defendant’s incest conviction.

Considering (3), inculpatory statements made by defendant after his arrest, the court considered defendant’s arguments that the findings of fact were incomplete, and that the evidence did not support that he made the statements voluntarily. The court disagreed on both points, explaining that findings of fact “need not summarize all the evidence presented at voir dire,” as long as “the findings are supported by substantial and uncontradicted evidence, as they are here.” Id. at 26. As for the voluntariness of the statements, the court detailed several different points where defendant received Miranda warnings, signed an advisement of rights form, and even made a joke about being familiar with the rights through his work as an active duty marine with a law enforcement role. 

For defendant’s final issue (4), the clerical error, the court agreed with defendant that the trial court had orally dismissed the sexual activity by a substitute parent charge prior to sentencing. Although the jury did convict defendant of this charge, the transcript clearly indicated the trial court dismissed the charge before consolidating the other charges for sentencing. Looking to the rule articulated in State v. Smith, 188 N.C. App. 842 (2008), the court found that remand for correction was the appropriate remedy for the clerical error in the judgment to ensure the record reflected the truth of the proceeding. 

The defendant was placed on probation in district court pursuant to a formal deferred prosecution agreement under G.S. 15A-1341(a1). A district court judge found him in violation and revoked his deferred prosecution probation. The defendant appealed to superior court for a de novo violation hearing, but a superior court judge dismissed the appeal for lack of jurisdiction. The court of appeals affirmed the dismissal, concluding that there is no statutory right to appeal a revocation of probation in the deferred prosecution context, as that revocation does not “activate[] a sentence” within the meaning of G.S. 15A-1347(a). The court noted that the superior court could, in some cases, review district court revocations of deferred prosecution probation through its authority to issue writs of certiorari under Rule 19 of the General Rules of Practice for the Superior and District Courts.

In this DWI case, the superior court properly dismissed the State’s notice of appeal from a district court ruling granting the defendant’s motion to suppress where the State’s notice of appeal failed to specify any basis for the appeal. Although such a notice may be sufficient for an appeal to the Court of Appeals, the State is required to specify the basis for its appeal to superior court.

In this Dare County case, defendant appealed her conviction for reckless driving, arguing the superior court lacked jurisdiction to enter judgment due to a fatally defective citation, and error in instructing the jury on reckless driving that created a fatal variance between the citation and the jury charge. The Court of Appeals held the superior court had jurisdiction and found no error. 

In March of 2021, defendant was driving a van on a highway in Dare County, and she made several aggressive gestures and movements towards another vehicle. Eventually, after speeding along the highway for several miles, defendant pulled in front of the other vehicle and “intentionally brake-checked” the other driver, leading to a collision. Slip Op. at 3. Defendant was cited for reckless driving, and at district court defendant was found guilty. On appeal to the superior court, defendant moved to dismiss the charge, arguing the citation failed to include specific factual details. The superior court denied the motion, and during trial at superior court, body cam footage from the responding officer showed defendant admitted to intentionally brake-checking the other driver. During the charge conference, defendant objected, arguing the alleged conduct in the instruction was not present in the pleading. The superior court denied the motion and defendant was subsequently found guilty by the jury. 

Taking up defendant’s first argument that the citation lacked specific descriptions of the actions, the Court of Appeals explained that under G.S. 15A-922, a defendant charged by a citation may move to be charged with a new pleading. However, the appropriate venue for the motion is the district court division. Here, defendant failed to make a motion before the district court, and “[p]er North Carolina law . . . for a defendant to properly object to a trial by citation, [they] must make such objection before the court of original jurisdiction.” Id. at 8. Because defendant made her motion before the superior court, she waived her right to appeal the issue. 

Moving to defendant’s argument regarding a fatal variance between the citation and the jury charge, the court first explained that defendant failed to preserve the argument and the standard of review was plain error. Here, defendant argued that the specific conduct of slamming on her brakes was not mentioned in the citation. The court pointed out that the citation specifically incorporated the officer’s crash report which contained details of the alleged conduct. Based on the reference to the crash report in the citation, and the evidence showing defendant admitted to intentionally brake-checking the other driver, the court found no plain error by the superior court.  

 

In this Haywood County case, defendant appealed his convictions for making harassing phone calls and being intoxicated and disruptive in public, arguing the superior court lacked jurisdiction to try him for the intoxicated in public charge, and that he did not knowingly waive his right to a jury trial. The Court of Appeals agreed, vacating defendant’s conviction for being intoxicated and disruptive in public and granting a new trial for the harassing phone calls charge. 

Beginning in the late evening hours of April 9, 2022, and continuing to the early morning, defendant called the Waynesville Police Department over fifty times to inquire about the investigation into an assault where he was the victim. Dispatchers told defendant that the assigned detective was not on duty, but defendant kept calling, eventually speaking with the sergeant in charge at that hour. After that call, defendant walked up to the police department parking lot and confronted the sergeant, exhibiting clear signs of being intoxicated. Defendant was subsequently arrested, and appeared pro se in district court on the charges. The district court found defendant guilty of making harassing phone calls and not guilty of being intoxicated and disruptive in public, and defendant appealed to superior court. Defendant again appeared pro se before the superior court and was tried in a bench trial, being found guilty of both charges. 

Taking up defendant’s first argument, the Court of Appeals explained that the State conceded the superior court lacked jurisdiction to try him on the intoxicated and disruptive in public charge because he was acquitted at district court. The court explained that there was significant confusion about the charges before the superior court, and “the superior court incorrectly explained to Defendant that he was facing a trial de novo for both charges.” Slip Op. at 6. Because the superior court lacked jurisdiction, the court vacated the conviction for being intoxicated and disruptive in public. 

Moving to the jury trial waiver issue, the court explained that under G.S. 15A-1201(d), the trial court must conduct a colloquy with a defendant before allowing waiver of a jury trial. Here, the court looked to applicable precedent for the substance of that colloquy, and determined there was “no record evidence that the superior court personally addressed Defendant or conducted any colloquy whatsoever to determine whether he fully understood and appreciated the consequences of his decision to waive his right to a jury trial.” Id. at 15. Additionally, defendant was pro se and no evidence in the record showed he was aware of his right to request a jury trial. Having established the failure to comply with the applicable standard, the court also held that the error was prejudicial, as there was a reasonable possibility that at least one juror would have found defendant’s conduct was not a violation. This led the court to grant a new trial on the harassing phone calls charge. 

In this Guilford County case, the State appealed an order granting dismissal of the assault, interfering with emergency communications, and communicating threats charges against defendant after the district court imposed a $250 secured bond when defendant announced his intention to appeal to superior court. The Court of Appeals reversed the superior court order dismissing the charges, remanding for further findings to support the imposition of a secured cash bond. 

In June of 2019, defendant was charged with felony assault by strangulation, interfering with emergency communications, and communicating threats, and received a $2,500 unsecured bond for pretrial release. The State reduced the assault by strangulation charge to simple assault, and a district court bench trial was held in August 2022. Defendant was found guilty on all charges, and given a 150-day suspended sentence. Defendant then gave notice of appeal, at which point the district court modified defendant’s pretrial release to require a $250 secured bond, leading to defendant being taken into custody for a few hours while his family posted the bond. In October 2022, defendant moved at the superior court to dismiss the charges, and the superior court granted the motion, finding the district court did not properly modify defendant’s bond pursuant to statute and the denial of his right to a reasonable bond impermissibly infringed on his Fourth Amendment and Sixth Amendment rights.

Taking up the State’s appeal, the Court of Appeals first looked at the district court’s jurisdiction to modify the pretrial release bond, as defendant argued that the district court was immediately divested of jurisdiction when he announced his appeal. Looking to the language of G.S. 15A-1431, the court concluded “[g]iven that the plain language contained in Section 1431 mandates action from a magistrate or district court following a defendant giving notice of appeal, we conclude that the district court is not immediately divested of jurisdiction following ‘the noting of an appeal.’” Slip Op. at 11. This meant that the district court retained jurisdiction to modify defendant’s pretrial release. The court then looked to G.S. 15A-534 for the requirements to impose a secured cash bond, finding that the district court did not properly record its reasons in writing, meaning the superior court’s order was correct in finding the district court erred. 

Having established that the district court erred by imposing a secured bond without written findings, the court moved to the question of whether defendant’s rights were flagrantly violated and whether his case suffered irreparable prejudice to support dismissal of the charges against him under G.S. 15A-954. The court concluded that defendant had not been irreparably prejudiced, looking to the superior court’s own findings, pointing to Finding No. 12 that “the court does not find, that the $250 cash bond and subsequent time in custody affected defendant’s ability to prepare his case in superior court, or otherwise to consult with counsel to be ready for trial.” Id. at 14 (cleaned up). Because the superior court’s own findings showed no prejudice and the findings were not challenged on appeal, the court determined it was error to grant defendant’s motion to dismiss. 

Finding itself bound by its prior decision in this felony child abuse case, the Court of Appeals rejected the defendant’s argument that the trial court committed plain error by improperly instructing the jury on the definition of the term “sexual act.” The defendant was charged under G.S. 14-318.4(a2). That statute does not define the term “sexual act” as used in the proscribed offense. That term is however defined in a separate subchapter of the General Statutes—G.S. 14-27.20(4)--to include various forms of sexual activity but excluding vaginal intercourse. The court noted that in two earlier cases--State v. Lark, 198 N.C. App. 82 (2009), and State v. Stokes, 216 N.C. App. 529 (2011)--it had applied the definition of sexual act found in G.S. 14-27.20(4) to felony child abuse without explaining why it did so. Then, in State v. McClamb, 234 N.C. App. 753 (2014), the court squarely addressed the question of whether the term sexual act as used in the child abuse statute included vaginal intercourse. McClamb distinguished Stokes, explaining that it only addressed the issue of digital penetration and did not hold that the definition of sexual act in the child abuse statute excludes vaginal intercourse. McClamb also distinguished Lark, explaining that it was limited to an analysis of fellatio as a sexual act. The court addressed the issue again in State v. Alonzo, __ N.C. App. __, __, 819 S.E.2d 584, 587 (2018). That decision noted a conflict between McClamb, Stokes, and Lark, and applying In re Civil Penalty, 324 N.C. 373 (1989), declined to follow McClamb, concluding that it was bound by the earlier Lark decision. Because the state Supreme Court later stayed the mandate in Alonzo, that case does not yet have any precedential effect. The court declined the defendant’s invitation to adopt the same reasoning applied in Alonzo and conclude that McClamb is not good law, finding that In re Civil Penalty “does not empower us to overrule precedent in this way.” It explained: 

In re Civil Penalty stands for the proposition that, where a panel of this Court has decided a legal issue, future panels are bound to follow that precedent. This is so even if the previous panel’s decision involved narrowing or distinguishing an earlier controlling precedent—even one from the Supreme Court—as was the case in In re Civil Penalty. Importantly, In re Civil Penalty does not authorize panels to overrule existing precedent on the basis that it is inconsistent with earlier decisions of this Court.

The court went on to note that the Supreme Court has authorized it to disregard its own precedent in certain rare situations, such as when two lines of irreconcilable precedent developed independently. But this is not such a case. The court concluded that under In re Civil Penalty it must follow McClamb “because it is the most recent, controlling case addressing the question.” Thus, the trial court’s instructions were not erroneous.

This Davidson County case involved the sexual abuse of a girl at ages 10 and 13. The defendant was the child’s grandfather. In addition to assaulting the child, the defendant also abused the child’s mother, his daughter. The child’s mother reportedly traded sex with her daughter for drugs from the defendant. The child’s mother cooperated with the investigation. She pled guilty pursuant to Alford to attempted felony child abuse on the condition that she truthfully testify against the defendant at his trial. Defense counsel thoroughly questioned the child’s mother regarding her plea arrangement, but the trial court sustained an objection to questions relating to the Alford aspect of the plea. It ruled that the evidence that the child’s mother took an Alford plea was not relevant and, if it was relevant, that it “did not survive the [Rule 403] balancing test.” Slip op. at 4. The defendant was convicted of all counts at trial and sentenced to a minimum term of 1200 months. The trial court also ordered lifetime sex offender registration and satellite-based monitoring without objection from the defendant. He appealed, challenging the trial court’s decision to exclude evidence of the Alford nature of the plea. He also sought certiorari review of the SBM order, as he failed to preserve his direct appeal of that issue.

(1) The defendant’s objection to the evidentiary ruling was preserved. While the defendant failed to make an offer of proof by conducting voir dire of the witness, the plea transcript with the agreement between the State and the child’s mother was made a part of the record. Trial counsel’s extensive questioning about the plea deal also made the objection obvious from context, thus preserving the issue for appellate review.

(2) The defendant claimed that the Alford plea was relevant to the credibility of the witness and that the trial court erred in sustaining the objection to that line of questioning, causing prejudicial error. The court assumed that the Alford nature of the plea was relevant evidence, but found no abuse of discretion in the trial court’s exclusion of the evidence under Rule 403 of the North Carolina Rules of Evidence as potentially confusing to the jury:

Under the circumstances of this case, we agree with the trial court that evidence [the] mother entered an Alford plea would serve to confuse the jury regarding the legal details of her plea. In particular, someone would have to explain the meaning of an Alford plea, and [the] mother’s own understanding of the exact meaning of an Alford plea may have been different that the technical legal meaning or the intent Defendant assumes she had. Slip. op. at 14.

(3) The defendant failed to object on any basis to the order imposing SBM at the time of its entry and failed to give written notice of appeal of the order (as required for civil matters such as SBM orders). He sought review via petition for writ of certiorari and asked the court to invoke Rule 2 of the North Carolina Rules of Appellate Procedure to reach the merits of his unpreserved argument. The court declined both requests and dismissed the argument, finding the circumstances did not warrant the “extraordinary steps” of both granting certiorari and invoking Rule 2.  

Judge Murphy wrote separately to concur. According to him, the trial court erred in finding the Alford plea evidence irrelevant. The trial court further erred in conducting a Rule 403 balancing test after it found the evidence irrelevant and excluding the evidence on the basis of Rule 403 was an abuse of discretion. However, these errors were not prejudicial under the circumstances of the case.

In 2000, the defendant was convicted of felony possession of cocaine, possession of a firearm by a felon, possession of a weapon on school property, misdemeanor resisting a public officer, second-degree trespass, and carrying a concealed weapon. The defendant gave notice of appeal in open court and a lawyer was notified that he was responsible for the defendant’s appeal. That lawyer withdrew in 2002 and a new lawyer, Mr. Hinton, was appointed. Nothing was done to process the appeal until 2019 when the Appellate Defender was appointed to represent the defendant. Mr. Hinton had mistakenly allowed time to lapse for preparing the appeal. The defendant argued that he was deprived of his right to a speedy appeal and effective assistance of counsel during the nineteen years it took to process his appeal. The Court considered the following factors, derived from State v. China, 150 N.C. App. 469 (2002), in its analysis: the length of the delay; the reason for the delay; defendant’s assertion of his right to a speedy appeal; and any prejudice to defendant. The Court found that the first two factors were relatively well-established on the record because nineteen years was a very lengthy delay and the defendant’s prior appellate counsel acknowledged his mistake. However, analysis of the remaining factors required additional evidentiary development. The Court therefore dismissed the appeal without prejudice so that the Defendant could seek a Motion for Appropriate Relief in the trial court to develop the facts relevant to his claim.

In this case involving a waiver of counsel at a probation revocation hearing and the defendant’s appeal of the trial court’s revocation of her probation, the court declined to dismiss the appeal due to the defendant’s failure to comply with Rule 4 of the Rules of Appellate Procedure and held that the defendant’s waiver of counsel was knowing, intelligent, and voluntary.  The defendant timely filed a handwritten notice of appeal that failed to comply with Rule 4 in that it did not indicate that it had been served on the State.  Noting that the State was informed of the appeal and was able to timely respond, and that the violation had not frustrated the adversarial process, the court held that the nonjurisdicitional Rule 4 defect was neither substantial nor gross and proceeded to the merits.  As to the merits, the court found that the trial court’s inquiry of the defendant regarding her waiver of counsel, a waiver which the defendant also executed in writing, was similar to that in State v. Whitfield, 170 N.C. App 618 (2005) and satisfied the requirements of G.S. 15A-1242.

The plaintiff brought a facial constitutional challenge to a state law concerning automated red-light traffic cameras in the City of Greenville. She alleged the law violated the North Carolina Constitution prohibiting local laws relating to health and sued the City of Greenville, Pitt County Board of Education, and State of North Carolina through official capacity claims against Phil Berger, President Pro Tempore of the North Carolina Senate, and Tim Moore, Speaker of the North Carolina House of Representatives. The case was transferred to a three-judge panel of superior court judges appointed by the Chief Justice because the complaint is a facial constitutional challenge to a state law. The panel heard cross-motions for summary judgment and entered summary judgment in favor of the City of Greenville and Pitt County Board of Education. The plaintiff appealed. The Court of Appeals found that the record on appeal contained no indication that the three-judge panel ruled on an earlier motion to dismiss the claim against the State of North Carolina. The Court dismissed the appeal for lack of appellate jurisdiction because the challenged order entered judgment as to some, but not all, parties, and the appeal is interlocutory. The Court concluded: “Before this Court hears the matter and addresses the constitutionality of that law on the merits, the appeal should include a judgment entered as to the State, so that the State, if it chooses, can appear and advocate for its position on that constitutional question.”

The defendant was convicted of felony breaking or entering in 17 CRS 54550 and felony larceny after breaking or entering in 17 CRS 54551. The trial judge sentenced him to two consecutive 8 to 19 months prison terms, suspended the sentences, and placed him on probation. Violation reports were subsequently filed in both cases, and the defendant’s probation was revoked by the trial judge in both cases. The defendant filed a pro se written notice of appeal. The majority found that the notice failed to comply with North Carolina Rule of Appellate Procedure 4 in that the notice “did not (1) designate the judgment from which he was appealing, (2) designate the court to which he was appealing, and (3) properly certify service.” The majority found that these defects deprived the Court of jurisdiction over a direct appeal, dismissed the appeal, and declined to exercise its discretion to hear the defendant’s arguments by way of petition for writ of certiorari. A dissenting judge, noting the technical nature of the defects in the defendant’s notice of appeal, would have heard the defendant’s certiorari petition in one of the cases, 17 CRS 54551. In that case, the trial judge revoked the defendant’s probation based on absconding, but the violation report did not allege absconding. Only in the other case, 17 CRS 54550, did the violation report allege absconding. The dissent observed that the allegations in that case were insufficient to put the defendant on notice of that violation in the other case. The dissenting judge stated that it was an abuse of discretion to overlook this due process violation and deny the defendant’s certiorari petition.

During cross-examination of the complaining witness in a case involving a charge of assault on a female, the defendant began a line of questions to which the State objected. The trial judge excused the jury and conducted a voir dire, during which the defendant’s counsel demonstrated the proposed cross- examination of the witness, including questions about her mental health and treatment. The trial judge ruled that those questions were not relevant and that to the extent they were relevant they were more prejudicial than probative. When cross-examination resumed in front of the jury, the defendant did not attempt to elicit testimony about the witness’s mental health. (1) The Court of Appeals rejected the State’s argument that the defendant failed to preserve for appellate review the issue of the judge’s refusal to allow the testimony. The defendant was not required to elicit the testimony before the jury where, as here, the defendant elicited the testimony in voir dire and secured a ruling from the trial judge. The Court distinguished State v. Coffey, 326 N.C. 268 (1990), where the trial judge conducted a voir dire, ruled that most of the proposed testimony was inadmissible, but indicated that counsel could ask other questions, which the judge would rule on when the questions were asked. When the jurors returned, however, the defendant did not ask any questions, including questions not yet ruled on by the judge. (2) The Court recognized that North Carolina allows cross-examination of a key witness regarding the witness’s past mental problems or defects to challenge the witness’s credibility, citing State v. Williams, 330 N.C. 711 (1992). The Court found in this case that the excluded testimony concerned prior instances of the witness’s mental health and treatment and that one instance involved treatment the witness had sought for childhood trauma; however, the Court stated that the defendant did not ask or attempt to introduce evidence about a mental health diagnosis or mental state. The Court held that the defendant failed to show that the trial judge abused his discretion in finding that the excluded testimony was not relevant or to the extent it was relevant that it was more prejudicial than probative. (3) The defendant argued that the trial judge committed plain error by charging the jury that the alleged assault involved “grabbing, pushing, dragging, kicking, slapping, and/or punching” when the criminal summons alleged “striking her neck and ear.” The Court rejected the defendant’s variance argument because the defendant failed to object to the instruction at trial, did not request that the trial judge including the “striking” language from the summons, and contributed to the variance by proposing that the judge add the words slapping and punching to the instruction.

In 1999, the defendant was found guilty of assault on a female, and the trial judge entered a prayer for judgment continued (PJC) with a condition that the defendant pay costs of court. In 2017, the defendant was denied a concealed carry permit in West Virginia on the ground that his 1999 case resulted in a conviction for domestic violence and that he misstated in his permit application that he had never been convicted of an act of violence or act of domestic violence. In 2018, the defendant filed a motion in North Carolina to enter judgment in the 1999 case, which he then would be able to appeal to superior court for a trial de novo. The district court denied the motion, and the defendant appealed to the Court of Appeals. The Court found that the defendant did not have a right to appeal and refused to treat the defendant’s brief as a petition for a writ of certiorari. The Court therefore dismissed the defendant’s appeal. In addition to its holding, the Court made several other observations. (1) The District Attorney’s office that handled the defendant’s 1999 assault on a female case advised West Virginia that the case involved domestic violence even though the remaining records in ACIS indicated that the case did not involve domestic violence. (2) The Court recognized that it could be argued that the defendant’s representation on his permit application was not a misrepresentation about whether he had a conviction because the question is ambiguous and he could have believed in good faith that a PJC was not a conviction. (3) The Court observed that although a PJC with a condition that the defendant pay costs is not a condition that converts a PJC into a final judgment, a trial judge may not impose that condition without the defendant’s consent. When a defendant consents to a PJC, the defendant waives any right to appeal. (4) In support of its refusal to treat the defendant’s brief as a petition for a writ of certiorari, the Court stated that it would be unfair to the State to allow the defendant to renege on a twenty-year-old deal for a PJC with costs, ask the trial court to enter judgment, and appeal the judgment to superior court, which would most certainly result in dismissal of the charges because the State no longer has the evidence to proceed. (5) The court observed that G.S. 15A-1416(b)(1) gives the State the right to move for appropriate relief to enter a final judgment on a PJC, presumably when a defendant has not satisfied the conditions of a PJC, but the defendant does not have the same statutory right. (6) The court noted that the defendant can petition the superior court for a writ of certiorari under Rule 19 of the North Carolina Rules of Superior and District Court.

The defendant was convicted by a jury of two counts of statutory sexual offense with a child by an adult and one count of first-degree kidnapping based on his repeated sexual assaults of his seven-year-old niece. The trial court sentenced the defendant to prison and ordered him to enroll in satellite-based monitoring (SBM) for life. (1) Based on the defendant’s failure to file a written notice of appeal as required by Rule 3 of the Rules of Appellate Procedure, the court of appeals concluded that it lacked jurisdiction to hear his SBM appeal. The defendant also failed to argue in the trial court that SBM was an unconstitutional search under the Fourth Amendment. The court of appeals declined grant his petition for writ of certiorari and, in the absence of evidence of a manifest injustice, to invoke Appellate Rule 2 to address his unpreserved constitutional argument. (2) A pediatrician that the State tendered as an expert testified without objection that children don’t tend to make up stories about sexual abuse, and that the victim “gave excellent detail” and that her story was “very consistent.” The court of appeals found no error, noting that while it would be improper for an expert witness to opine based on an interview with a victim as to whether the child had been sexually abused, statements regarding the child’s consistency in recounting the alleged abuse are nevertheless admissible. (3) The court rejected the defendant’s argument that witnesses’ repeated use of the words “disclose” and “disclosure” to describe what the victim told them in private amounted to impermissible vouching. Citing State v. Betts, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019), and declining to follow unpublished State v. Jamison, ___ N.C. App. ___, 821 S.E.2d 665 (2018) (unpublished), the court agreed that nothing about the term “disclose” conveys believability or credibility. (4) Some statements admitted by a marriage and family therapist who treated the victim were improper vouching. Her general statement about “this incident that happened” was not improper, but her statement that the victim would need therapy “because of the sexual abuse that she experienced” and “I believe [the victim]” were improper as an opinion of the victim’s veracity. However, in the absence of an objection at trial and in light of the substantial evidence against the defendant (medical evidence and testimony from corroborating witnesses), the court concluded that the admission of the improper evidence did not rise to the level of plain error warranting a new trial. (5) Finally, defense counsel’s failure to object to the improper vouching evidence was not ineffective assistance of counsel where there was no reasonable probability that the errors prejudiced the defendant.

The defendant’s failure to submit his motions to suppress to the trial court with supporting affidavits as required by G.S. 15A-977(a), constituted a waiver on appeal of the right to contest the admission of the evidence in question.

Because SBM hearings are civil proceedings, the defendant’s oral notice of appeal from an order requiring him to enroll in lifetime SBM was insufficient to give the court jurisdiction to hear his appeal. The court declined to grant the defendant’s request for writ of certiorari to review the issue, or to suspend the Rules of Appellate Procedure to reach the merits.

State v. Campbell, 257 N.C.App. 739, 810 S.E.2d 803 2018-02-06 review granted, 373 N.C. 216, 835 S.E.2d 844 (Jun 7 2018)

Invoking its discretion under Rule 2 to reach the merit of the defendant’s argument, the court held, over a dissent, that the trial court erred by failing to dismiss a larceny charge due to a fatal variance between the indictment and the evidence regarding ownership of the property. The indictment alleged that the property belonged to “Andy [Stevens] and Manna Baptist Church.” Andy Stevens was the church’s Pastor. In a prior opinion in the case, the court had held that a fatal variance existed because the evidence showed that the stolen property belonged only to the church. The Supreme Court however granted discretionary review as to whether the Court of Appeals erred in invoking Rule 2 to address that issue. That court remanded to the Court of Appeals for an express determination as to whether the court would exercise its discretion to invoke Rule 2 and consider the merits of the fatal variance claim. Following these instructions, the court determined that in this “unusual and extraordinary case” it would exercise its discretion to employ Rule 2 and consider the merits of the defendant’s fatal variance claim. Turning to the merits, the court adopted its analysis in its earlier decision in the case and held—again—that a fatal variance occurred. Specifically, although the indictment alleged that the property was owned by both Andy Stevens and the church, the evidence established that the property was owned only by the church. The court reiterated the principle that if the State fails to present evidence of a property interest of some sort in both owners alleged in the indictment, a fatal variance occurs. Here, the evidence did not show that Pastor Stevens held title or had any type of ownership interest in the stolen property.

On appeal from the trial court’s order granting the defendant’s suppression motion, the court rejected the defendant’s argument that the State failed to meet the certification requirements of G.S. 15A-979(c) by addressing its certificate to “the court” rather than the trial court judge. The defendant argued that because G.S. 15A-979(c) requires that the certificate be presented to the judge who granted the motion, any deviation from this statutory language renders the State’s certificate void. The court concluded that the word “judge” is synonymous with “the court.”

The court reversed and remanded the decision below, State v. Stokes, 227 N.C. App. 649 (Jun. 4, 2013) (vacating the defendant’s conviction for second-degree kidnapping on grounds that the evidence was insufficient to establish removal when during a robbery the defendant ordered the clerk to the back of the store but the clerk refused). The court held that the court of appeals erred by failing to consider whether the State presented sufficient evidence to support a conviction of attempted second-degree kidnapping. The court went on to find that the evidence supported conviction of the lesser offense. The court rejected the defendant’s argument that it could not consider whether the evidence was sufficient to establish the lesser offense because the State had not argued for that result on appeal, stating: “While we agree it would be better practice for the State to present such an alternative argument, we have not, however, historically imposed this requirement.” It continued:

When acting as an appellee, the State should bring alternative arguments to the appellate court’s attention, and we strongly encourage the State to do so. Nonetheless, we are bound to follow our long-standing, consistent precedent of acting ex mero motu to recognize a verdict of guilty of a crime based upon insufficient evidence as a verdict of guilty of a lesser included offense. Hence, the Court of Appeals incorrectly refused to consider whether defendant’s actions constituted attempted second-degree kidnapping.

Because the State failed to file a certificate as required by G.S. 15A-1432(e), the appellate court lacked jurisdiction over the appeal. In district court the defendant moved to dismiss his DWI charge on speedy trial grounds. When the district court issued an order indicating its preliminary approval of the defendant’s motion, the State appealed to superior court. The superior court remanded to the district court for additional factual findings. Once the superior court received further findings of fact, it affirmed the district court’s preliminary order and remanded the case to district court with orders to affirm the dismissal. After the district court issued its final judgment, the State again appealed and the superior court affirmed the district court’s judgment. The court determined that G.S. 15A-1432(e), not G.S. 15A-1445(a)(1), applied to the State’s appeal to the appellate division. Because the State failed to comply with G.S. 15A-1432(e)’s certificate requirement, the court had no jurisdiction over the appeal.

Relying on language in G.S. 15A-979, the court held that a defendant may appeal an order denying a motion to suppress made pursuant to G.S. 15A-980 (right to suppress use of certain prior convictions obtained in violation of right to counsel) where the defendant reserved the right to appeal in his guilty plea.

In this child sexual abuse case, the court clarified that when analyzing Rule 404(b) and 403 rulings, it “conduct[s] distinct inquiries with different standards of review.” It stated:

When the trial court has made findings of fact and conclusions of law to support its 404(b) ruling . . . we look to whether the evidence supports the findings and whether the findings support the conclusions. We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b). We then review the trial court’s Rule 403 determination for abuse of discretion.

Because a civil no contact order entered under G.S. 15A-1340.50 (permanent no contact order prohibiting future contact by convicted sex offender with crime victim) imposes a civil remedy, notice of appeal from such an order must comply with N.C. R. Appellate Procedure 3(a).

In an appeal from an order requiring the defendant to enroll in lifetime SBM in which defense counsel filed an Anders brief, the court noted that SBM proceedings are civil in nature and that Anders protections do not extend to civil cases. The court however exercised discretion to review the record and found no error.

(COA11-526). Gaps in the verbatim trial transcript were sufficiently addressed by other materials so that appellate review was possible. However, the complete lack of a verbatim transcript of the habitual felon phase of his trial precluded appellate review and warranted a new determination on this issue.

In this Craven County case, defendant appealed the trial court’s recommendation to the parole commission that he should not be granted parole and his judgment should not be altered or commuted. The Court of Appeals vacated the trial court’s recommendation and remanded for further proceedings. 

Defendant’s appeal arose from the former G.S. 15A-1380.5, which was repealed in 1998. That section permitted a defendant sentenced to life without parole to petition for review of their sentence after 25 years served. The Court of Appeals first established that defendant had a right to appeal the trial court’s recommendation to the parole commission under the language of the former statute, concluding it was a “final judgment” and defendant had a right to review for “abuse of discretion.” Slip Op. at 6. The court then moved to the findings, and lack thereof, in the trial court’s order, holding “the findings in the Order are insufficient for us to conduct a meaningful review of the trial court’s reasoning.” Id. at 8. The court vacated the order, remanding so the trial court could either make additional findings or reconsider its recommendation. 

In this Mecklenburg County case, the State appealed an order granting defendant’s motion to suppress evidence seized during a traffic stop. The Court of Appeals reversed the trial court’s order and remanded for additional proceedings. 

In May of 2021, defendant was pulled over by a Charlotte-Mecklenburg Police officer due to suspicion of a fictitious tag. When the officer approached the vehicle, he noticed defendant was fumbling with his paperwork and seemed very nervous, and the officer noted the smell of marijuana in the car. After the officer determined defendant was driving on a revoked license, he asked defendant about the marijuana smell, and defendant denied smoking in the car, but said he had just retrieved the car from his friend and speculated that was the source of the smell. The officer asked defendant to step out of the car and defendant did so, bringing cigarettes, a cellphone, and a crown royal bag with him. The officer put the belongings on the seat and patted defendant down for weapons. Finding no weapons, the officer then searched a crown royal bag and found a green leafy substance along with a digital scale, baggies of white powder, and baggies of colorful pills. Defendant was indicted for Possession of Drug Paraphernalia, Trafficking in Drugs, and Possession with Intent to Sell or Deliver a Controlled Substance, and he filed a motion to suppress the evidence from the bag, arguing the officer did not have probable cause for the search. The trial court orally granted defendant’s motion, referencing State v. Parker, 277 N.C. App. 531 (2021), and explaining “I just think in the totality here and given the new world that we live in, that odor plus is the standard and we didn’t get the plus here.” Slip Op. at 4. 

The Court of Appeals first reviewed its basis for appellate jurisdiction based on the State’s notice of appeal, explaining that the State’s appeal violated Rule of Appellate Procedure 4 by incorrectly identifying the motion to suppress as a “motion to dismiss,” failed to reference G.S. 15A-979(c) as support for its appeal of an interlocutory motion to suppress, and failed to include the statement of grounds for appellate review required by Rule of Appellate Procedure 28(b)(4). Id. at 6-7. Despite the defects with the State’s appeal, the majority determined that the appropriate outcome was to issue a writ of certiorari, but “given the substantial and gross violations of the Rules of Appellate Procedure, we tax the costs of this appeal to the State as a sanction.” Id. at 10. 

After establishing jurisdiction for the appeal, the court turned to the issue of probable cause for the warrantless search of the vehicle and ultimately the crown royal bag. The court declined to consider whether the odor of marijuana alone justified the search, as “[i]n this case, however, as in Parker, the Officer had several reasons in addition to the odor of marijuana to support probable cause to search the vehicle and, consequently, the Crown Royal bag.” Id. at 13. The court pointed to (1) the “acknowledgement, if not an admission” that marijuana was smoked in the car, and that defendant did not assert that it was hemp, (2) defendant was driving with a fictitious tag, and (3) defendant was driving with an invalid license. Id. at 14. Then the court established that the officer also had probable cause to search the Crown Royal bag, quoting State v. Mitchell, 224 N.C. App. 171 (2012), to support that probable cause authorizes a search of “every part of the vehicle and its contents that may conceal the object of the search.” Id. at 15. Although defendant tried to remove the bag as he left the vehicle, the court explained that was “immaterial because the bag was in the car at the time of the stop.” Id. Because the totality of the circumstances supported the officer’s probable cause in searching the vehicle, the trial court’s order granting the motion to suppress was error. 

Judge Murphy concurred in part and dissented in part by separate opinion, and would have found that the State did not adequately invoke the court’s jurisdiction. Id. at 17. 

In this Person County case, defendant appealed the post-conviction order revoking his probation for a new criminal offense, requesting a review of the record similar to review of criminal convictions under Anders v. California, 386 U.S. 738 (1967). The Court of Appeals granted certiorari to review defendant’s appeal, and affirmed the order revoking defendant’s probation.

Defendant’s counsel submitted a brief along with defendant’s petition for writ of certiorari seeking “Anders-type review because counsel had examined the record and applicable law and was ‘unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal.’” Slip Op. at 2. The majority held that the lack of briefing on appeal constrained the court’s ability to review arguments against the revocation under the rules of appellate procedure, “as any argument not advanced in an appellant’s brief is abandoned under Rule 28 . . . [and] based on the reasoning of our Supreme Court’s opinion in State v. Ricks, 378 N.C. 737 [] (2021), we must conclude that it would be an abuse of our discretion to invoke Rule 2.” Slip Op. at 3. Because the majority held that the Ricks precedent prevented the Court of Appeals from invoking Rule 2 to suspend Rule 28, the court simply examined the indictments to confirm the trial court had jurisdiction to try defendant, and examined no other arguments before affirming the trial court’s order revoking probation.

Judge Inman concurred in the result only, and wrote separately suggesting that the court had “the jurisdiction and authority to consider the issues raised in [d]efendant’s Anders brief on appeal from an order revoking his probation without invoking Rule 2,” but that after conducting an Anders-style inquiry, the judge found no prejudicial error. Id. at 5.

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