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., 09/22/2021
E.g., 09/22/2021

Contrary to the conclusion of the Court of Appeals below, the trial court did not err in this felony child abuse case under G.S. 14-318.4 by failing to instruct the jury that the term “sexual act” for purposes of the offense is the definition provided for the term in what is now Article 7B of G.S. Chapter 14 (Rape and Other Sex Offenses).  Conducting a statutory construction analysis, the Supreme Court concluded that the legislative history of the Article 7B definitions statute, G.S. 14-27.20, indicated that the provided definition of “sexual act” was intended by the legislature to apply within its own article and, consequently, not to the offense of felony child abuse.  The court noted that since its enactment and throughout numerous legislative changes the definitions statute in Article 7B consistently has stated that its applicability is limited to its own article.  As neither the defendant nor the state presented the issue for the court in their petitions for discretionary review, the court declined to reach the defendant’s argument that the trial court’s instruction on the term “sexual act,” which seemed to match the definition of indecent liberties under G.S. 14-202.1, was erroneously overbroad.

State v. Stepp, 367 N.C. 772 (Jan. 23, 2015)

(per curiam). For reasons stated in the dissenting opinion below, the court reversed the court of appeals. In the decision below, State v. Stepp, __ N.C. App. __, 753 S.E.2d 485 (Jan. 21, 2014), the majority held that the trial court committed reversible error by failing to instruct the jury on an affirmative defense to a felony that was the basis of a felony-murder conviction. The jury convicted the defendant of first-degree felony-murder of a 10-month old child based on an underlying sexual offense felony. The jury’s verdict indicated that it found the defendant guilty of sexual offense based on penetration of the victim’s genital opening with an object. At trial, the defendant admitted that he penetrated the victim’s genital opening with his finger; however, he requested an instruction on the affirmative defense provided by G.S. 14-27.1(4), that the penetration was for “accepted medical purposes,” specifically, to clean feces and urine while changing her diapers. The trial court denied the request. The court of appeals found this to be error, noting that the defendant offered evidence supporting his defense. Specifically, the defendant testified at trial to the relevant facts and his medical expert stated that the victim’s genital opening injuries were consistent with the defendant’s stated purpose. The court of appeals reasoned:

We believe that when the Legislature defined “sexual act” as the penetration of a genital opening with an object, it provided the “accepted medical purposes” defense, in part, to shield a parent – or another charged with the caretaking of an infant – from prosecution for engaging in sexual conduct with a child when caring for the cleanliness and health needs of an infant, including the act of cleaning feces and urine from the genital opening with a wipe during a diaper change. To hold otherwise would create the absurd result that a parent could not penetrate the labia of his infant daughter to clean away feces and urine or to apply cream to treat a diaper rash without committing a Class B1 felony, a consequence that we do not believe the Legislature intended.

(Footnote omitted). The court of appeals added that in this case, expert testimony was not required to establish that the defendant’s conduct constituted an “accepted medical purpose.” The dissenting judge did not believe that there was sufficient evidence that the defendant’s actions fell within the definition of accepted medical purpose and thus concluded that the defendant was not entitled to an instruction on the affirmative defense. The dissenting judge reasoned that for this defense to apply, there must be “some direct testimony that the considered conduct is for a medically accepted purpose” and no such evidence was offered here.

State v. Carter, 366 N.C. 496 (Apr. 12, 2013)

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.

State v. Smith, 362 N.C. 583 (Dec. 12, 2008)

When instructing on indecent liberties, the trial judge is not required to specifically identify the acts that constitute the charge.

The defendant was tried for possession of a firearm by a felon, first-degree kidnapping, burglary, DVPO violations with a deadly weapon, first-degree rape and first-degree forcible sexual offense arising from the violent kidnapping and rape of his former girlfriend.

(1) The morning before the sixth day of the trial, the defendant jumped feet first from a second-floor mezzanine in the jail, injuring his left leg and ribs. The defendant was taken to the hospital for surgery. After a hearing, the trial court determined that the defendant’s absence from trial was voluntary and announced that the trial would proceed without him. The trial court considered and denied defense counsel’s motion that the court inquire into defendant’s capacity to proceed. The trial continued, and the defendant was convicted. He appealed, arguing that the trial court erred by denying defense counsel’s motion for an inquiry into capacity.

The Court of Appeals rejected the defendant’s argument. Nothing in the defendant’s prior record, conduct or actions provided the trial court with notice or evidence that the defendant may have been incompetent. For that reason, the court did not err by declining to conduct a more intensive hearing on the defendant’s capacity. The trial court had the opportunity to personally observe the defendant’s conduct and demeanor, heard arguments from the State and defense counsel, and took evidence concerning the defendant’s competency, including watching recorded footage of the defendant jumping 16 feet from the second-floor mezzanine.

(2) The trial court instructed the jury that it could find the defendant guilty of a first-degree sexual offense, if, in addition to the other required elements, it found the defendant had engaged in fellatio or anal intercourse. The defendant argued that this instruction deprived him of a unanimous jury verdict. The Court of Appeals rejected that argument, citing precedent that a jury verdict does not need to make a specific finding regarding precisely which sexual acts proscribed by G.S. 14-27.26 the defendant committed.

The defendant became abusive and violent toward his romantic partner, D.C., after finding out that she had engaged in an intimate relationship while he was in prison for a year. The defendant forced D.C. to drive him to his cousin’s house, while telling her that she would be having sex with both the defendant and his cousin. During the drive, the defendant repeatedly beat D.C. and threatened to hit her with grip pliers. Once the cousin got in the car, the defendant instructed D.C. to drive to the cousin’s sister’s house, where the three entered a shed behind the house.

While in the shed, the defendant demanded D.C. to perform oral sex on him while the cousin watched and told the cousin to prepare to have sex with D.C. Throughout the incident, D.C. refused the defendant’s demands several times, which resulted in him beating her with his hands, feet, and pliers. The defendant and the cousin forcibly removed D.C.’s shorts as she continued to object. At one point, and after several beatings, D.C. was able to escape and drive to the police station to report the crimes.

At trial, the jury found the defendant guilty of first-degree kidnapping and first-degree sex offense. On appeal, the defendant argued that the trial court should have given a jury instruction for the lesser included offense of second-degree forcible sex offense. Specifically, the defendant argued that the evidence of the element requiring that the perpetrator be “aided or abetted by one or more persons” supported the instruction on the lesser-included offense. Slip op. at ¶ 22.

The Court of Appeals disagreed, finding that the cousin willingly accompanied and rode in the car with the couple; the cousin followed instructions from the defendant and waited while the defendant forced D.C. to enter the shed; the cousin helped the defendant restrain and remove D.C.’s shorts; and the cousin stated to D.C. she “might as well get it over with,” referring to submission to the sexual assault. The Court determined that the cousin was not a passive bystander and in fact assisted, promoted, and encouraged the defendant in the sexual offense. Thus, the Court held that no contradictory evidence was presented in relation to the element in question to justify an instruction on a lesser-included offense.

The defendant and his longtime friend, Ivy, began dating in 2017. Per Ivy’s clear and constant requests, their sexual contact with each other was limited to kissing and touching above the waist. Whenever the defendant tried to touch her below the waist, she told him to stop.

On August 1, 2017, Ivy visited the defendant at his home and went with the defendant into his bedroom where they began watching television. They then began to engage in “hot and heavy” physical contact, including kissing, touching Ivy’s breasts, and removing Ivy’s shirt, which she was “okay” with. When the defendant attempted to put his hand down Ivy’s shorts, she pushed him away and told him “no.” The defendant removed his hand momentarily but made repeated attempts. Ivy twisted her legs to keep them together, but eventually the defendant was able to remove her shorts. Ivy again told the defendant “no” and to stop because she “wasn’t ready for that.” The defendant then pinned Ivy’s hands over her head, pushed her underwear aside, and penetrated her vagina with his penis. Ivy told the defendant to stop and said “no,” but he continued to penetrate her. Eventually, Ivy gave up because the defendant did not listen.

After the events, Ivy got dressed and left the home. The defendant walked with her outside, asking if she was okay, to which she responded that she was. Ivy then left in her car. The defendant repeatedly texted Ivy after the incident, asking her via text to promise him she was okay and continuing to text her daily. The defendant made continued attempts to talk to and see Ivy, despite her pleas that he leave her alone. Five days after the incident, Ivy reported the incident to police.

The defendant was indicted on charges of second-degree forcible rape and attempted second-degree forcible rape. The defendant testified that he thought Ivy consented to sex although he admitted Ivy stated “she was not ready” that night and conceded that “she may have pushed me a little bit” when he initiated sexual contact. The defendant was found guilty of second-degree forcible rape and not guilty of attempted second-degree forcible rape.

On appeal, the defendant argued that the trial court erred, or plainly erred, by failing to provide a jury instruction on the defense of consent based on the defendant’s “reasonable belief” that Ivy consented to the sexual acts. The Court of Appeals reviewed the argument under the plain error standard because the defendant did not request this instruction at trial. The Court rejected this argument, noting that neither the Court nor the State Supreme Court have recognized a “reasonable belief of consent” defense to rape. The Court cited State v. Moorman, 320 N.C. 387, 389–92 (1987), in which the Supreme Court held “that a defendant could be convicted of rape by force and against the will of the victim, who was incapacitated and asleep at the time, despite the defendant’s testimony that he mistook the victim for someone he knew and believed she consented to vaginal intercourse.” The Court concluded that because a defendant’s knowledge of whether the victim consented is not a material element of rape and mistaken belief in consent has not been recognized as a defense to rape, the trial court did not err in failing to provide an instruction to that effect. The Court contrasted other statutes involving rape and sex offense in which the General Assembly has used reasonableness language, such as with respect to revocation of consent in G.S. 14-27.20(1a)(b).

The defendant alternatively argued that he had been denied his right to effective assistance of counsel because his defense counsel did not request an instruction on the defendant’s reasonable belief of consent defense. The Court rejected that argument based on the conclusion that the defendant was not entitled to the instruction.

The defendant was convicted of indecent liberties with a child and felony child abuse by sexual act based on crimes committed against his daughter and stepdaughter. 

(1) The court of appeals determined that the trial court did not plainly err in instructing the jury on felonious child abuse by sexual act. G.S. 14-318.4(a2) provides that any parent or legal guardian of a child under 16 who “commits or allows the commission of any sexual act upon the child is guilty of a Class D felony.” The trial court instructed the jury in accordance with NC Pattern Jury Instruction – Criminal 239-55B that a “sexual act is an immoral, improper or indecent touching or act by the defendant upon the child.” On appeal, the defendant argued that the definition of “sexual act” in G.S. 14-27.20(4) should apply. The term is therein defined as “[c]unninglingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse.” It also includes “the penetration, however slight, by any object into the genital or anal opening of another person’s body.” 

The court of appeals in Wohlers found the defendant’s argument foreclosed by State v. Alonzo, 373 N.C. 437 (2020). In Alonzo, the state supreme court concluded that the definitions in G.S. 14-27.20 applied only within Article 7B of Chapter 14. Thus, the Alonzo court held that it was error for the court of appeals below to have concluded that the definition of sexual act in G.S. 14-27.20(4) applied to offenses under G.S. 14-318.4(a2), which is contained in Article 39 of Chapter 14. 

(2) The court of appeals determined that even if the trial court erred in failing to strike testimony from a forensic interviewer that arguably vouched for the victim’s credibility, the defendant could not show he was prejudiced by the error. The interviewer testified that the defendant’s stepdaughter’s disclosure was “tentative,” and that “she’s a child who falls into the I want to tell someone so this will stop, but I don’t really want it to go past that, and I just want it to be done.” The defendant did not move to strike the testimony at trial, but argued on appeal that it was impermissible vouching of the victim’s credibility. 

The court held that the defendant could not show that the alleged error had a probable impact on the jury’s finding that he was guilty, noting that the defendant himself had provided a written statement that was consistent with the victim’s testimony and which was introduced as evidence at trial.

(3) The court of appeals held that the trial court properly determined the defendant’s maximum term of imprisonment for felony child abuse by sexual act, a Class D felony, based upon the minimum term it had selected (64 months) rather than the minimum term permitted by statute (51 months). G.S. 15A-1340.17(f) provides that, for offenders sentenced for reportable convictions that are Class B1 through E felonies, the maximum term of imprisonment “shall be equal to the minimum term of imprisonment and twenty percent (20%) of the minimum term of imprisonment, rounded to the next highest month, plus 60 additional months.” Once the trial court set the defendant’s minimum term of imprisonment at 64 months (the top of the presumptive range), it properly added 64 plus 13 (20 percent of 64, 12.8, rounded to the next highest month) plus 60, totaling 137 months.

In this second-degree rape case, the trial court did not commit plain error by failing to instruct the jury that lack of consent was an element of rape of a physically helpless person. Because lack of consent is implied in law for this offense, the trial court was not required to instruct the jury that lack of consent was an essential element of the crime.

In this rape case, because the evidence was clear and positive and not conflicting with respect to penetration, the trial court did not err by failing to instruct on attempted rape. Here, among other things, a sexual assault nurse testified that the victim told her she was penetrated, the victim told the examining doctor at the hospital immediately after the attack that the defendant had penetrated her, the defendant’s semen was recovered from inside the victim’s vagina.

In a multi-count indecent liberties with a student case, the trial court did not err by failing to instruct the jury using the specific acts alleged in the amended bill of particulars. The trial court properly instructed the jury that it could find the defendant guilty if it concluded that he willfully took “any immoral, improper, or indecent liberties” with the victim. The actual act by the defendant committed for the purpose of arousing himself or gratifying his sexual desire was immaterial. The victim’s testimony included numerous acts, any one of which could have served as the basis for the offenses.

In a rape of a child by an adult case, the trial court did not commit plain error by failing to instruct the jury on the lesser offense of first-degree rape where there was no dispute that the defendant was at least 18 years of age. 

In a child sexual offense case in which the indictment specified digital penetration and the evidence supported that allegation, the trial court was not required to instruct the jury that it only could find the defendant guilty if the State proved the specific sex act stated in the indictment.

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