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., 09/18/2021
E.g., 09/18/2021

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.

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.

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.

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.

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.

State v. Lee, 370 N.C. 671 (Apr. 6, 2018)

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 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. 

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.

State v. Collins, 369 N.C. 60 (Sept. 23, 2016)

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.

State v. Howard, 367 N.C. 320 (Mar. 7, 2014)

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).

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.

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.

(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.”

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 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, ___ N.C. App. ___, 825 S.E.2d 10 (Feb. 19, 2019) aff'd on other grounds, ___ N.C. ___, ___ S.E.2d ___ (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 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.

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.

(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.

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.

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, ___ N.C. App. ___, 813 S.E.2d 463 (Mar. 20, 2018) aff’d in part, rev’d in part, ___ N.C. ___, ___ S.E.2d ___ (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.

 

State v. Phachoumphone, ___ N.C. App. ___, 810 S.E.2d 748 (Feb. 6, 2018) review granted, ___ N.C. ___, ___ S.E.2d ___ (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, ___ N.C. App. ___, 810 S.E.2d 748 (Feb. 6, 2018) review granted, ___ N.C. ___, ___ S.E.2d ___ (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 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. 

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.

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. 

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, ___ N.C. App. ___, 797 S.E.2d 324 (Feb. 21, 2017) 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.

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.

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