A confidential informant called the local police department, describing the defendant’s appearance and stating that the defendant would be at a certain location with a significant amount of methamphetamine in his bookbag. When the officers arrived at the scene, they found the defendant, matching the description, and sitting down with a bag and a knife. The officers asked the defendant if he had anything on him, to which the defendant responded he had marijuana in his pocket. After the officers retrieved the marijuana, the bag, and the knife, the defendant ran and was quickly apprehended by the officers.

At trial, the defendant stipulated that his book bag contained methamphetamine and heroin. The defendant moved to dismiss at the close of the State’s evidence and again at the close of all evidence, both of which were denied. The defendant was found guilty of possession with intent to sell and deliver methamphetamine, possession of heroin, misdemeanor possession of marijuana, possession of drug paraphernalia, resisting a public officer, and attaining habitual felon status.

On appeal, the defendant argued that the trial court erred when it denied his motion to dismiss the charge for resisting a public officer because there was a fatal variance between the indictment allegation and the evidence. Specifically, the indictment alleged that at the time of the defendant’s resistance, the detective was “attempting to take the defendant into custody for processing narcotics” but the evidence at trial only showed that the defendant ran from officers, including the detective, after a small amount of marijuana was seized from his person. Slip op. at ¶ 14. In rejecting the defendant’s argument, the Court of Appeals held that that an essential element of the charge of resisting a public officer is the identification of the official duty an officer was discharging or attempting to discharge at the time of a defendant’s resistance, rather than the specific basis for arrest. Thus, the Court concluded that the actual basis of arrest is not necessary to properly charge the offense of resisting a public officer.

In this intimidating a witness case, the indictment alleged that the defendant told one person, Derstine, to tell another, Ramos, that the defendant would have Ramos deported if he testified against the defendant.  Evidence at trial tended to show that Ramos did not actually receive this message.  The court explained that while this was a variance between the indictment and the proof at trial, the variance did not relate to “the gist” of the offense of intimidating a witness, an offense concerned with “the obstruction of justice.”  The court cited North Carolina case law establishing that whether a witness actually receives the threatening communication at issue is “irrelevant” to the crime of intimidating a witness, and, thus, the language of the indictment was mere surplusage.  The court went on to determine that even if there was error in the trial court’s jury instruction on intimidating a witness, which did not deviate from the pattern jury instruction or from the instruction agreed upon by the parties, any such error was harmless as there was no reasonable likelihood that the alleged deviation misled the jury.

The State conceded that restitution ordered by the trial court lacked an evidentiary basis and the court remanded for a rehearing on the issue.

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.