Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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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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In this Cabarrus County case, the defendant was convicted of first-degree kidnapping and second-degree rape. After developing a friendship with the victim, he drugged her without her knowledge, took her to a friend’s house and raped her. The defendant appealed, raising numerous challenges.
(1) The defendant argued there was insufficient evidence to support his convictions and that his motion to dismiss should have been granted. He did not raise an argument about the rape conviction on appeal. Any argument as to the sufficiency of evidence for that offense was therefore deemed abandoned and waived. As to the kidnapping conviction, the defendant argued he could not be sentenced for both kidnapping and the rape as a matter of double jeopardy, since the rape was used to elevate the kidnapping to first degree. “The proper remedy in the event of conviction of first-degree kidnapping and the sexual assault that constitutes an element of first-degree kidnapping is to arrest judgement on the first-degree kidnapping and resentence the defendant for second-degree kidnapping.” Slip op. at 10-11 (citation omitted). While the defendant correctly noted this rule, the court found it inapplicable to the defendant’s case. The State’s evidence showed at least two distinct sexual assaults. In addition to the rape, the defendant also committed a separate sexual battery, and that offense was used to elevate the kidnapping offense to first-degree (and not the rape). Following the sexual battery in one room, the defendant moved the victim to another room to commit the rape. This showed separate and distinct offenses. The trial court also correctly instructed the jury on these principles and its instructions required the jury to find a separate and distinct sexual battery in support of the first-degree kidnapping. Because the defendant was not convicted of the underlying sexual battery used to support the first-degree kidnapping, double jeopardy did not preclude separate punishments for the distinct rape and kidnapping.
(2) The was also sufficient evidence to support the aggravating factor that the defendant took advantage of a position of trust to accomplish the crimes. The Court of Appeals noted it “has upheld a finding of the ‘trust or confidence’ factor in very limited factual circumstances.” Id. at 18 (citation omitted). Here, the State presented sufficient evidence of the factor in aggravation. The defendant was a family friend and was close with the victim. Evidence showed the defendant gave the victim’s family Christmas gifts, checked on family members, frequently spent time with the victim and advised her on various matters, among other connections. This was sufficient to demonstrate a position of trust over the victim which the defendant exploited in order to commit the crimes.
(3) The two sisters of the victim testified to prior instances of sexual assault by the defendant towards each of them. The trial court admitted this evidence pursuant to Rule 404(b) of the Rules of Evidence as proof of a common plan or scheme by the defendant. The defendant raped one of the sisters in a nearly identical manner as the victim and committed sexual battery upon the other sister “in a manner indicating an intent to go further.” Id. at 21. Like with the victim, the defendant developed a position of trust with each of the sisters before committing sexual assaults on them. The trial court therefore correctly determined the prior bad acts were substantially similar to the circumstances of the current offense. The assaults occurred 10 and 8 years before the events of the current case. The court agreed with the trial judge that this evidence was not too remote in time to satisfy the requirements of Rule 404(b):
Our Supreme Court has held that ‘[w]hen similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan’ rendering the prior bad acts ‘not too remote to be considered as evidence of defendant’s common scheme to abuse the victim sexually.’ Id. at 22 (citation omitted) (emphasis in original).
The evidence showed the defendant’s acts were continuous over the course of time and therefore not too remote in time to be admitted under Rule 404(b). The trial court also conducted the necessary balancing under Rule 403 of the Rules of Evidence to determine the testimony was not more prejudicial than probative and instructed the jury about the limited purpose of the evidence. The admission of this evidence was therefore not error or an abuse of discretion.
(4) The defendant argued that the admission of toxicology results by way of a substitute analyst violated his Sixth Amendment rights to confrontation. The court disagreed, noting the rule on substitute analyst testimony:
[A]n expert witness may testify as to the testing or analysis conducted by another expert if: (i) that information is reasonably relied on by experts in the field in forming their opinions; and (ii) the testifying expert witness independently reviewed the information and reached his or her own conclusion in this case. Id. at 26 (citation omitted).
The evidence showed that the substitute analyst reviewed the results of the testing done by the non-testifying analysts and formed his own opinion about the results. “Thus, [the analyst’s] opinion was based on his own analysis and not merely surrogate testimony for an otherwise inadmissible lab report . . .” Id. at 31. Under these circumstances, the defendant was not entitled to cross-examine the analysts who actually performed the testing. According to the court, "when an expert gives an opinion, the opinion is the substantive evidence, and the expert is the witness whom the defendant has the right to confront.” Id. Because the expert opinion was properly admitted and the defendant was able to cross-examine that expert, there was no violation of the defendant’s confrontation rights.
(5a) The indictment for second-degree rape identified the victim only by reference to her initials, and the defendant argued this constituted a fatal indictment defect for failure to identify the victim. He pointed to a recent case holding that “Victim #1” was insufficient to identify the victim. State v. McKoy, 196 N.C. App. 650, 654 (2009), foreclosed this argument. Citing from that case, the court observed:
[W]here the statutes defining second-degree rape and second-degree sexual offense require the offenses to be against ‘another person,’ the indictments charging these offenses do not need to state the victim’s full name, nor do they need to add periods after each letter in initials in order to accomplish the common sense understanding that initials represent a person. Id.
Unlike the situation where the indictment names only a “victim,” the use of initials sufficed to identify the victim and did not constitute a fatal defect. [Jeff Welty blogged about the use of initials in charging documents here.]
(5b) The first-degree kidnapping indictment was also not defective. The defendant claimed a fatal flaw based on the indictment’s failure to identify the specific crime constituting the sexual assault for purposes of first-degree kidnapping. There is no requirement that an indictment for first-degree kidnapping identify the felony used to enhance the offense to first-degree. The indictment was otherwise sufficient to put the defendant on notice and was valid in all respects.
(6) The trial court’s instructions to the jury on the existence of the aggravating factor violated G.S. § 15A-1340.16(d). That statute provides in pertinent part that evidence used at trial to support the existence of an element of the offense may not thereafter be used to prove a factor in aggravation. The jury instructions permitted the jury to consider “all of the evidence,” rather than limiting its consideration to evidence not used to support the intent requirements for the two crimes. The defendant did not object to the instructions at the time and alleged plain error on appeal. Plain error requires that the defendant demonstrate “a reasonable possibility that, had the instruction been given, the jury would have failed to find the existence of the aggravating factor.” Id. at 36. The court noted that occupying a position of trust is not an element of either of the crimes at issue and rejected the contention that the same evidence was used to prove both the intent to commit the crimes and the aggravating factor. The defendant could not demonstrate the possibility of a different result absent the instructions on the aggravating factor, and accordingly could not demonstrate prejudice for plain error.
(7) The defendant’s argument that his objections to an order requiring him to enroll in satellite-based monitoring (“SBM”) were improperly overruled were abandoned on appeal, because the defendant failed to raise any argument for this issue.
A majority of the court determined there were no reversible error in the trial and the convictions were affirmed.
Judge Murphy dissented in part. He wrote separately to note his disagreement with the majority’s analysis of the Confrontation Clause issue. Judge Murphy would have granted a new trial based on the Sixth Amendment violation and would have held the plain error jury instruction issue in (5) above, as well as the SBM issue in (6), were therefore moot. He otherwise concurred in the majority’s judgment.
The defendant began a relationship with B.F. in 2012. The criminal offenses occurred in 2014, when B.F. brought her daughter L.F. (age 3 at the time) to the defendant’s parents’ house. While B.F. and L.F. were sitting on a bed with the defendant and watching a children’s television show, the defendant instructed B.F. to take off both her own and L.F.’s clothes, and she complied. At the defendant’s request, B.F. touched L.F. in a sexual manner while the defendant watched and masturbated. Afterwards, again at the defendant’s request, B.F. moved L.F. into a position where the defendant could place L.F.’s mouth on his penis. When L.F. later told her stepmother what had happened, the stepmother contacted law enforcement and social services, leading to an investigation and criminal charges. At trial, the defendant was convicted of two counts of engaging in a sex offense with a child under 13 years of age, and two counts of taking indecent liberties with a child. The jury also found that the state proved two aggravating factors: the victim was very young, and the defendant took advantage of a position of trust or confidence to commit the offense. On appeal, the defendant argued that there was insufficient evidence to support the second aggravating factor under G.S. 15A-1340.16(d)(15), because the only relationship involving a position of trust or confidence was between the defendant and B.F., rather than with the victim of the offense, L.F. The Supreme Court agreed, reversing the Court of Appeals, and held that the state’s evidence “failed to show that the relationship between L.F. and defendant was conducive to her reliance on him” and only established “that L.F. trusted defendant in the same way she might trust any adult acquaintance, a fact which our courts have found to be insufficient to support this aggravating factor.” Justice Newby dissented, and would have held that the aggravating factor was appropriate on these facts because the defendant took advantage of his position of trust or confidence with B.F. in order to facilitate the commission of the offense against L.F., and the statute does not require that the relationship be between the defendant and the victim.
Reversing the court of appeals, the court held the evidence necessary to prove a defendant guilty under the theory of acting in concert is not the same as that necessary to establish the aggravating factor that the defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy. Because the aggravating factor requires additional evidence beyond that necessary to prove acting in concert, the trial court properly submitted the aggravating factor to the jury. Specifically, the aggravating factor requires evidence that the defendant joined with at least two other individuals to commit the offense while acting in concert only requires proof that the defendant joined with at least one other person. Additionally, the aggravating factor requires proof that the defendant was not charged with committing a conspiracy, which need not be proved for acting in concert.
The evidence was sufficient to establish the aggravating factor that the defendant took advantage of a position of trust or confidence to place the victim in a vulnerable position. The defendant referred to the victim as his “twin,” was brought into the murder conspiracy as a friend of the victim, participated in hatching the details of the plan to kill the victim, and agreed to incapacitate the victim so others could kill him.
The court affirmed a ruling of the North Carolina Court of Appeals finding no error in the defendant’s trial and sentence. However, it rejected the implication in the court of appeals’ opinion that a jury’s determination that a defendant is not insane resolves the presence or absence of the statutory aggravating factor, G.S. 15A-1340.16(d)(8) (knowingly creating great risk of death to more than one person by weapon normally hazardous to lives of more than one person). Nor does a jury’s finding that a defendant is not insane automatically render any Blakely error concerning this aggravating factor harmless beyond a reasonable doubt. However, the court examined the evidence and determined that the trial judge’s finding of the aggravating factor was harmless beyond a reasonable doubt.
In this Buncombe County case, defendant appealed his convictions for driving while impaired and reckless driving, arguing error in (1) denying his motion to dismiss, (2) improperly applying aggravating factors to his impaired driving conviction, and (3) imposing a reckless driving sentence without making specific findings justifying the length of community punishment. The Court of Appeals vacated and remanded for new sentencing hearings on the convictions, but otherwise affirmed.
Defendant’s driving offenses came for trial at district court in August of 2021. After being found guilty at district court, defendant timely appealed to superior court. However, due to a court system error, defendant’s appeal was not properly entered, and defendant was held in detention for six additional days. While he was in detention, he was not provided with necessary medication, and he suffered a seizure resulting in a concussion. At superior court, defendant filed a motion to dismiss arguing irreparable prejudice to his ability to prepare a defense due to the concussion, a motion denied by the trial court. Defendant was found guilty and during sentencing, the trial court found three aggravating factors: “(1) defendant’s driving was especially reckless; (2) defendant’s driving was especially dangerous; and (3) defendant was convicted of death by motor vehicle in August 2015.” Slip Op. at 3. This led to defendant receiving a sentence at Level III for the impaired driving conviction.
Considering (1) defendant’s motion to dismiss, the Court of Appeals explained that G.S. 15A-954(a)(4) governed motions to dismiss for flagrant violations of a defendant’s constitutional rights. The court looked for “structural errors” in the framework of the trial process as explained in State v. Hamer, 377 N.C. 502 (2021). Slip Op. at 6. Defendant did not testify at the district court level, and it appeared unlikely he would have testified regardless of his injury at superior court, leading the court to conclude that he could not meet the burden of irreparable prejudice required for dismissal. The court also noted defendant was acquitted of two of the charges against him at superior court, suggesting that he mounted a solid defense.
Considering (2) the aggravating factors for driving while impaired, the court explained that on December 1, 2006, changes in the applicable law moved the responsibility for consideration of aggravating factors from the trial judge to the jury. The current law in G.S. 20-179(a1) places the responsibility on the state to prove these factors beyond a reasonable doubt to the jury. The court examined the caselaw arising from Blakely v. Washington, 542 U.S. 296 (2004), and the concept of harmless error review when a judge fails to submit aggravating factors to the jury. Slip Op. at 9. After exploring applicable federal and state precedent on the failure to submit an aggravating factor to the jury and harmless error, the court concluded:
Since the relevant federal cases provide the bare minimum, and all relevant state cases are distinguishable because they were decided prior to the modification of the statute where it is clear from the timing and language of the statute that the legislature intended to change the standards adopted by our courts, we hold aggravating factors must be decided by the jury or the case must be remanded for a new sentencing hearing.
Id. at 12. As a result, the court vacated the trial court’s judgement and remanded for resentencing.
Considering the final issue, (3) defendant’s reckless driving sentence, the court explained that G.S. 15A-1343.2(d)(1) requires a trial court to make specific findings if they sentence a defendant to a community punishment longer than 18 months for a misdemeanor like reckless driving, and here defendant received a 36-month community punishment without specific findings. The state conceded this was error, and the matter was also vacated and remanded for resentencing.
Judge Gore dissented by separate opinion, and would have found the trial court’s error as harmless under the harmless error standard. Id. at 14.
In this Haywood County case, defendant appealed his convictions for multiple felony and misdemeanor child abuse offenses, arguing a range of issues related to sentencing and errors by the trial court, as well as possible ineffective assistance of counsel. The Court of Appeals agreed with defendant’s sentencing arguments and remanded for resentencing, but found no prejudicial or plain error. The court dismissed defendant’s ineffective assistance of counsel claim without prejudice to allow him to file a motion for appropriate relief with the trial court.
Defendant came to trial in October of 2017 for abusing the children of his wife over the course of several years. Abuse included paddling one child victim so hard she suffered permanent injuries and required medical treatment. At trial, the jury found defendant guilty of all charges against him except for rape, and also found an aggravating factor that defendant took advantage of a position of trust or confidence. The trial court sentenced defendant to higher classifications of intentional child abuse inflicting serious bodily injury (“ICAISBI”) and intentional child abuse inflicting serious physical injury (“ICAISPI”) due to the aggravating factor.
The Court of Appeals first identified defendant’s meritorious issues, explaining that under applicable law, the evidence necessary to prove an element of the offense cannot be used as an aggravating factor. Here, “both misdemeanor and felony child abuse require showing the defendant is a ‘parent . . . or . . . other person providing care to or supervision of [a] child,’” meaning the aggravating factor could not be applied to defendant. Slip Op. at 10, quoting GS §§ 14-318.2 & -318.4. The state conceded this error, and the court remanded all convictions for resentencing.
The court next considered defendant’s argument that his ICAISPI and ICAISBI convictions were ambiguous due to a change in the felony classifications on December 1, 2013. Because the abuse in question occurred between January 2009 and March 2014, and the jury did not perform a specific finding of the date of the offenses, the court found that the verdict was ambiguous. Noting that this seemed to be a matter of first impression, the court explained:
[W]e have not found, and the parties have not provided, a published case resolving whether a general verdict is rendered ambiguous by evidence showing the completed offense may have been committed on either temporal side of a statutory reclassification of the crime. . . . [W]e hold that the general verdict is ambiguous under these circumstances and a defendant, absent a determination by the jury by special verdict form as to the specific date of or date range of offense sufficient to determine which sentencing regime is applicable, must be sentenced under whichever statutory classification is lower.
Id. at 12. The court remanded for resentencing the ICAISPI and ICAISBI offenses at their lower pre-elevation levels because the court could not engage in speculation about which dates supported the jury’s decision to convict defendant.
The court did not find merit in defendant’s argument that the scarring one victim suffered from paddling could not support a finding of serious bodily injury. Instead, the court drew a distinction between cases with “superficial” or “aesthetic” injuries with the more serious, permanent injuries suffered by the victim in this matter. Likewise, the court rejected defendant’s argument that the jury verdict sheet for ICAISBI represented error, as it asked the jury to determine if defendant was guilty of “inflicting permanent scarring to the buttocks and/or legs” of the victim. Id. at 23. The court explained that the indictment and jury instructions given by the trial court adequately explained all elements of the offense.
The court also rejected defendant’s arguments regarding lesser included offenses. The court considered and rejected defendant’s argument regarding lawful corporal punishment, explaining that overwhelming evidence showed the acts were not within the bounds of lawful punishment. Finally, the court rejected defendant’s argument the trial court erred by preventing the disclosure of juvenile records.
For defendant’s ineffective assistance of counsel claim, the court explained that the record was insufficient to determine whether defense counsel made certain strategic decisions, and “[w]hen the record is silent on that question of fact—as in this case—the appropriate action is to allow an evidentiary hearing by MAR.” Id. at 35.
The defendant pled guilty to felony death by motor vehicle and impaired driving in Wake County pursuant to a plea bargain. He stipulated in the plea transcript to the existence of three factors in aggravation and was sentenced to an aggravated term of imprisonment. On appeal, the defendant argued that the aggravating facts were based on the same evidence supporting the elements of the offenses of conviction. Under G.S. 15A-1340(16)(d), “evidence necessary to support an element of the offense shall not be used to prove any factor in aggravation.” One of the aggravating factors alleged that the defendant was armed with a deadly weapon—the vehicle he was driving—at the time of the offenses. The evidence to support this factor was the same evidence to support the “driving” element of felony death by motor vehicle. Similarly, the aggravating factor that the defendant caused serious and permanent injury to the victim was based only on the victim’s death, another essential element of felony death by motor vehicle. These two aggravating factors therefore violated G.S. 15A-1340(16)(d). A third aggravating factor—that the defendant knowingly created a great risk of death to more than one person by his driving—did not implicate the elements of the offenses and was properly found based on the defendant’s reckless driving and high rate of speed before the collision.
Because the defendant stipulated to the aggravating factors as a part of the plea bargain, the entire plea bargain was vacated, and the matter remanded for new proceedings. According to the unanimous court:
Defendant seeks to repudiate the portion of his agreement with the State in which he stipulated to the existence of aggravating factors while retaining the portions which are more favorable; namely, his plea of guilty to felony death by motor vehicle in exchange for the State’s agreement to not seek an indictment on the charge of second-degree murder. ‘Defendant cannot repudiate in part without repudiating the whole.’ Heggs Slip op. at 10 (quoting State v. Rico, 218 N.C. App. 109, rev’d per curiam for reasons stated in the dissent, 366 N.C. 327 (2012).
In this Iredell County case, the defendant pled guilty to assault inflicting serious bodily injury for a crime in which the victim suffered a fractured skull and other injuries, leaving him partially paralyzed and suffering from dementia. At sentencing, the defendant admitted to an aggravating factor based on a prior violation of his federal probation and the trial court sentenced the defendant in the aggravated range. On appeal, the defendant argued that the court erred by accepting his admission to the aggravating factor without first confirming that the State either provided him with written notice at least 30 days before trial of its intent to prove the factor, or that the defendant waived his right to notice. Reviewing the trial transcript, the Court of Appeals concluded that the State did not provide notice and that the defendant did not clearly waive his right to notice. The trial court therefore erred. As to the remedy, because the defendant’s plea agreement was based on the possibility of a sentence in the aggravated range, and because that agreement was unfulfillable without the improperly found aggravating factor, the Court of Appeals set aside the entire plea agreement. The case was therefore remanded the case to superior court for disposition on the original charge.
In July 2016, the defendant was the executive director of a nonprofit when she informed the board of directors that the nonprofit was out of money. Between 2012 and 2016, the balance of the nonprofit’s account had gone from $400,000 to $400. The SBI discovered $410,203.41 in unauthorized expenditures in the form of checks and credit card charges, all of which benefited the defendant.
The defendant was charged with eight counts of embezzlement of property received by virtue of office or employment (G.S. 14-90); two of the counts alleged that the defendant embezzled property over $100,000 in value. A jury found the defendant guilty of all charges and at sentencing the defendant plead guilty to two aggravating factors: “one of the offenses involving unauthorized credit card transactions and all three offenses involving unauthorized checks ‘involved an . . . actual taking of property of great monetary value.’” Slip op. at 3. The trial court applied these aggravating factors to the defendant’s conviction of embezzling $202,242.62 in the year 2015 and sentenced the defendant within the aggravated range of 92-123 months.
On appeal, the defendant argued that the trial court erred by imposing a sentence in the aggravated range because the “great monetary value” aggravating factor could not be applied because the value embezzled, $202,242.62, was not far greater than the $100,000 amount required to support a conviction of Class C felony embezzlement under G.S. 14-90(c). See slip op. at 4. The Court of Appeals rejected the defendant’s argument saying that it would not make determinations based on a rigid ratio. The Court of Appeals noted that the amount embezzled was more than twice the $100,000 threshold and stated that “$202,242.64 is, from the standpoint of an ordinary person, a great value of money.” Therefore, “the trial court did not err by applying the aggravating factor of ‘taking of property of great monetary value’ when sentencing [the] [d]efendant.” Slip op. at 6-7.
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 of financial card theft and sentenced to a suspended sentence of 8 to 19 months imprisonment and 24 months supervised probation. Defendant’s sentence was based on the aggravating factor in G.S. 15A-1340.16(d)(12a), which requires the State to prove that within 10 years before the instant offense, the defendant had been found by a North Carolina court to have been in willful violation of the conditions of probation. G.S. 15A-1340.16(d)(12a).
Outside of Defendant’s presence, the trial court later entered a civil judgment of $2,250.00 against him as recoupment for fees for the attorney appointed to represent him.
The Court of Appeals granted certiorari review to consider the lawfulness of the sentence and the civil judgment entered against the defendant. As to the sentence, the State admitted on appeal that the prosecutor did not present evidence that the defendant violated conditions of probation at any time before he committed the offense of conviction. The court agreed there was insufficient evidence presented at trial to support this aggravating factor, vacated the sentence, and remanded the case to the trial court for resentencing.
As to the civil judgment, the State admitted there was no evidence that the defendant was afforded an opportunity to be heard regarding the total amount of hours and fees claimed by his court-appointed attorney. It conceded that if the petition for certiorari was granted, the civil judgment for attorney fees had to be vacated, and the case had to be remanded to the trial court for further proceedings. The court agreed with the State’s concession, noting that the trial court never directly asked the defendant whether he wished to be heard on the issue and that there was no other evidence that the defendant received notice, was aware of the opportunity to be heard on this issue, and chose not to be heard. The trial court’s request that defendant’s counsel “guesstimate [the number of hours worked] so [Defendant] will have an idea as to what the legal fees will be” was insufficient to provide the requisite notice and opportunity to be heard. The court vacated the civil judgment for attorney fees and remanded the case to the trial court for further proceedings.
Jamie Markham wrote about the case here.
Because the defendant waived his right to have a jury determine the presence of an aggravating factor, there was no error with respect to the defendant’s sentence. The defendant was arrested for selling marijuana on 7 August 2015. He was arrested a second time for the same conduct on 15 October 2015. On 11 January 2016, the defendant was indicted for charges arising from the second arrest. On 14 April 2016, the State served the defendant with the notice of intent to prove aggravating factors for the charges arising from the second arrest. On 2 May 2016, the defendant was indicted for charges in connection with the first arrest. Over a year later, but 20 days prior to trial on all of the charges, the State added the file numbers related to the defendant’s first arrest to a copy of the previous notice of intent to prove aggravating factors. The trial began on 21 August 2017 for all of the charges. The defendant was found guilty only on charges from the first arrest. When the State informed the court that it intended to prove an aggravating factor, defense counsel stated that he received proper notice and the defendant stipulated to the aggravating factor. The trial court sentenced the defendant in the aggravated range and the defendant appealed. On appeal the defendant argued that the trial court erred by sentencing him to an aggravated sentence when the State did not provide 30 days written notice of its intent to prove an aggravating factor for the charges arising from the first arrest, and that the defendant did not waive his right to such notice. Here, the defendant was tried on all pending charges and prior to sentencing stipulated to the existence of the aggravating factor. G.S. 15A-1022.1 requires the trial court, during sentencing, to determine whether the State gave the defendant the required notice or if the defendant waived his right to that notice. Here, when the trial court inquired about the notice of the aggravating factor, defense counsel informed the trial court that he was provided proper notice and had seen the appropriate documents. The trial court also asked the defendant if he had had an opportunity to speak with his lawyer about the stipulation and what it means. The defendant responded in the affirmative. The trial court’s colloquy satisfied the requirements of G.S. 15A-1022.1 and the defendant’s knowing and intelligent waiver of a jury trial on the aggravating factor under the circumstances necessarily included waiver of the 30-day advance notice of the State’s intent to use the aggravating factor.
In a case involving convictions for attempted first-degree murder, statutory sex offense with a child by an adult, assault with a deadly weapon inflicting serious injury, first-degree kidnapping, and taking indecent liberties with a child, the trial court did not err by denying the defendant’s MAR challenging his aggravated sentence. The defendant’s MAR asserted that the State failed to allege the aggravating factors in the indictment and to narrowly define the aggravating factors in violation of Apprendi. The court began by rejecting the defendant’s argument that aggravating factors must be alleged in the indictment. Here, the State complied with G.S. 15A-1340.16, filing a written notice of aggravating factors months before trial that informed the defendant that the State sought to prove two identified statutory aggravating factors. After the jury convicted the defendant of the underlying offenses, the court allowed the State to proceed on the aggravating factors, and the jury found that each offense was especially heinous, atrocious, or cruel and that the victim was very young. The State complied with the statute and the procedure prescribed by the statute satisfies Apprendi.
The court went on to reject the defendant’s argument that the jury instruction for the heinous, atrocious, or cruel aggravating factor was unconstitutionally vague, citing controlling precedent.
In this violation of a domestic violence protective order (DVPO) case, the trial court did not err by sentencing the defendant within the aggravated range based in part on the G.S. 15A-1340.16(d)(15) statutory aggravating factor (the “defendant took advantage of a position of trust or confidence, including a domestic relationship, to commit the offense”). The defendant argued that because a personal relationship between the parties is a prerequisite to obtaining a DVPO, the abuse of a position of trust or confidence aggravating factor cannot be used aggravate a sentence imposed for a DVPO violation offense. The court concluded that imposing an aggravated sentence did not violate the rule that evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation.
(1) No violation of due process occurred when the defendant was sentenced in the aggravated range where proper notice was given and the jury found an aggravated factor (that the defendant committed the offense while on pretrial release on another charge). (2) Because G.S. 15A-1340.16 (aggravated and mitigated sentences) applies to all defendants, imposition of an aggravated sentence did not violate equal protection.
In this felony child abuse case the trial court erred by failing to provide an adequate instruction on the especially heinous, atrocious, or cruel (EHAC) aggravating factor. Rather than adapting the EHAC pattern instruction used in capital cases or providing any “narrowing definitions” that are required for this aggravating factor, the trial court simply instructed the jury: “If you find from the evidence beyond a reasonable doubt that . . . the offense was especially heinous, atrocious, or cruel . . . then you will write yes in the space after the aggravating factor[] on the verdict sheet.” The court concluded: “The trial court failed to deliver the substance of the pattern jury instruction on EHAC approved by our Supreme Court, and in doing so, instructed the jury in a way that the United States Supreme Court has previously found to be unconstitutionally vague.” Having found that the trial court erred, the court went on to conclude that the error did not rise to the level of plain error.
In this rape case involving an 82-year-old victim, the court rejected defendant’s argument that the trial court erred by failing to instruct the jury that it could not use the same evidence to find both the element of mental injury for first-degree rape and the aggravating factor that the victim was very old. The defendant argued that the jury may have relied on evidence about ongoing emotional suffering and behavioral changes experienced by the victim after the rape to find both an element of the offense and the aggravating factor. Rejecting this argument the court noted that evidence established that after the rape the victim suffered mental and emotional consequences that extended for a time well beyond the attack itself. The court further explained, in part: “These after-effects of the crime were the evidence that the jury considered in finding that the victim suffered a serious personal injury, an element of first-degree rape. None of the evidence regarding the lingering negative impact of the rape on the victim’s emotional well-being was specifically related to her age.” (citation omitted).
In this sexual assault case, the State was not excused by G.S. 130A-143 (prohibiting the public disclosure of the identity of persons with certain communicable diseases) from pleading in the indictment the existence of the non-statutory aggravating factor that the defendant committed the sexual assault knowing that he was HIV positive. The court disagreed with the State’s argument that alleging the non-statutory aggravating factor would have violated G.S. 130A-143. It explained:
This Court finds no inherent conflict between N.C. Gen. Stat. § 130A-143 and N.C. Gen. Stat. § 15A-1340.16(a4). We acknowledge that indictments are public records and as such, may generally be made available upon request by a citizen. However, if the State was concerned that including the aggravating factor in the indictment would violate N.C. Gen. Stat. § 130A-143, it could have requested a court order in accordance with N.C. Gen. Stat. § 130A-143(6), which allows for the release of such identifying information “pursuant to [a] subpoena or court order.” Alternatively, the State could have sought to seal the indictment. (citations omitted)
Because there was an insufficient factual basis to support an Alford plea that included an admission to aggravating factors, the court vacated the plea and remanded for proceedings on the original charge. The defendant was charged with the first-degree murder of his wife. He entered an Alford plea to second-degree murder, pursuant to a plea agreement that required him to concede the existence of two aggravating factors. The trial court accepted the plea agreement, found the existence of those aggravating factors, and sentenced the defendant for second-degree murder in the aggravated range. The court found that there was not a sufficient factual basis to support the aggravating factor that the offense was especially heinous, cruel, and atrocious. The record did not show excessive brutality, or physical pain, psychological suffering, or dehumanizing aspects. The court rejected the State’s argument that the aggravating factor was supported by the fact that the victim was killed within the “sanctuary” of her home. On this issue, the court distinguished prior case law on grounds that in those cases the defendant was not lawfully in the victim’s home; here the crime occurred in a home that the defendant lawfully shared with the victim. The court also rejected the State’s argument that the mere fact that the victim did not die instantaneously supported the aggravating factor. The court also found an insufficient factual basis to support the aggravating factor that the defendant took advantage of a position of trust or confidence, reasoning that “[t]he relationship of husband and wife does not per se support a finding of trust or confidence where [t]here was no evidence showing that defendant exploited his wife's trust in order to kill her.” (quotation omitted). Here, there was no evidence that the defendant so exploited his wife’s trust.
In this murder case, the trial court did not err by denying the defendant’s motion to dismiss for insufficient evidence as to the aggravating factor that the offense was especially heinous, atrocious, or cruel. Relying on prior N.C. Supreme Court case law, the court rejected the defendant’s argument that the State’s failure to submit any evidence showing that he played an active role in the murder precludes a finding by the jury beyond a reasonable doubt that the murder was especially heinous, atrocious, or cruel as to him. The court continued, finding that in this case, a reasonable inference can be drawn that the defendant did in fact actively participate in the murder.
Trial court erred by finding a statutory aggravating factor where the evidence used to support the G.S. 15A-1340.16(d)(8) aggravating factor (knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person) was the same evidence used to support an element of the involuntary manslaughter charge. That charge stemmed from a vehicle accident. The court reasoned: “[D]efendant was not impaired when the accident occurred, and defendant’s speed is the only evidence that would support the aggravating factor that he used a device in a manner normally hazardous to the lives of more than one person. Because the evidence of defendant’s speed was required to prove the charge of involuntary manslaughter and the finding of the aggravating factor, the trial court erred in sentencing defendant in the aggravated range[.]”
The trial court erred by sentencing the defendant in the aggravated range without considering uncontradicted evidence of a mitigating factor. One judge declined to reach this issue.
The trial court did not abuse its discretion by finding that one aggravating factor outweighed six mitigating factors.
(1) Even though the defendant pleaded guilty to a crime and admitted an aggravating factor pursuant to a plea agreement, the trial judge still was required to find that an aggravating factor existed and that an aggravated sentence was appropriate. Failure to do so rendered the sentence invalid. (2) Where, as a here, the use of a deadly weapon was necessary to prove the unlawful killing element of the pleaded-to offense of voluntary manslaughter, use of a deadly weapon could not also be used as an aggravating factor.
In a case in which the defendant was charged with killing his infant son, the trial court erred by failing to instruct the jury, as provided in G.S. 15A-1340.16(d), that evidence necessary to prove an element of the offense may not be used to prove a factor in aggravation. After the jury found the defendant guilty of second-degree murder, the trial court submitted two aggravating factors to the jury: that the victim was young and physically infirm and that the defendant took advantage of a position of trust. The jury found both factors and the defendant was sentenced in the aggravated range. With respect to the first factor, the court noted that the State's theory relied almost exclusively on the fact that because of the vulnerability of the young victim, shaking him was a reckless act indicating a total disregard of human life (the showing necessary for malice). Because this theory of malice is virtually identical to the rationale underlying submission of the aggravating factor, there is a reasonable possibility that the jury relied on the victim’s age in finding both malice and the aggravating factor. The court came to a different conclusion as to the other aggravating factor. One judge dissented on a different issue.
The trial court erred by submitting to the jury three aggravating factors that had not been alleged in the indictment as required by G.S. 15A-1340.16(a4). The three aggravating factors were that the defendant used a firearm equipped with an unregistered silencing device; the defendant's conduct included involvement in the illegal sale and purchase of narcotics; and the defendant's conduct was part of a course of conduct which included the commission of other crimes of violence against another person or persons.
There was sufficient evidence supporting the trial judge’s submission of the G.S. 15A-1340.16(d)(6) aggravating factor (offense against a law enforcement officer, etc. while engaged in the performance of or because of the exercise of official duties.) to the jury. Subsection (d)(6)'s "engaged in" prong does not require the State to prove that the defendant knew or reasonably should have known that the victim was a member of the protected class engaged in the exercise of his or her official duties; rather, submission simply requires evidence sufficient to establish the "objective fact" that the victim was a member of the protected class — here, a law enforcement officer — engaged in the performance of his or her official duties. On the facts presented, the evidence was sufficient.
Where the trial court determined that one aggravating factor (heinous, atrocious or cruel) outweighed multiple mitigating factors, it acted within its discretion in sentencing the defendant in the aggravated range.
The defendant was improperly sentenced in the aggravated range when the State did not provide proper notice of its intent to present evidence of aggravating factors as required by G.S. 15A-1340.16(a6). The court rejected the State’s argument that a letter regarding plea negotiations sent by the State to the defendant provided timely and sufficient notice of its intent to prove aggravating factors.
The evidence was sufficient to support the aggravating factor that the offense committed was especially heinous, atrocious, or cruel. The defendant assaulted his 72-year-old grandmother, stabbing her, striking her in the head, strangling her, and impaling her with a golf club shaft eight inches into her back and chest.
The trial court did not violate G.S. 15A-1340.16(d) (evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation) by submitting, in connection with assault with a deadly weapon charges, the aggravating factor that the defendant “knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person.” The court reasoned that for the assault charges the State was not required to prove that the defendant used a weapon or device which would normally be hazardous to the lives of more than one person.
In a sexual assault case involving a 13-year-old victim, the evidence was insufficient to establish aggravating factor G.S. 15A-1340.16(d)(15) (took advantage of a position of trust or confidence, including a domestic relationship). The defendant was the stepfather of the victim’s friend. The victim required parental permission to spend the night with her friend, and had done so not more than ten times. There was no evidence that the victim’s mother had arranged for the defendant to care for the victim on a regular basis, or that the defendant had any role in the victim’s life other than being her friend’s stepfather. There was no evidence suggesting that the victim, who lived nearby, would have relied on the defendant for help in an emergency, rather than going home. There was no evidence of a familial relationship between the victim and the defendant, that they had a close personal relationship, or that the victim relied on the defendant for any physical or emotional care. The evidence showed only that the victim “trusted” the defendant in the same way she might “trust” any adult parent of a friend.
Rejecting the defendant’s argument that the trial court erred by not holding a separate sentencing proceeding for aggravating factors.
There was sufficient evidence to establish the aggravating factor that the defendant had previously been adjudicated delinquent for an offense that would be a B2 felony if it had been committed by an adult. The evidence of that prior adjudication was a Transcript of Admission from the juvenile proceeding, not the Juvenile Adjudication Order or Disposition/Commitment Order. Under G.S. 15A-1131(b), a person has been convicted when he or she has been adjudged guilty or has entered a guilty plea. An admission by a juvenile, like that recorded in a Transcript of Admission is equivalent to a guilty plea.