The defendant’s husband sexually abused the defendant’s daughter. (The husband was not the daughter’s biological father, but he had adopted her after he married her mother.) The daughter told an aunt about the abuse. This led to law enforcement and DSS investigations. However, the defendant initially did not believe her daughter and instead pressured her to recant her allegations. Even after walking in on the abuse in progress, the defendant sought to prevent her daughter from cooperating with authorities. The defendant was charged with (a) being an accessory after the fact to sexual activity by a substitute parent, based on her failure to report the abuse that she personally observed; (b) felony obstruction of justice for pressuring her daughter to recant; and (c) felony obstruction of justice for denying law enforcement and DSS access to her daughter during the investigation. She was convicted on all counts and appealed, arguing that the evidence was insufficient to support each conviction. The case eventually reached the state supreme court, which ruled: (1) There was insufficient evidence to support the accessory after the fact conviction. “[T]he indictment alleged that [the defendant] did not report [her husband’s] sexual abuse of [her daughter, and] a mere failure to report is not sufficient to make someone an accessory after the fact under North Carolina law.” The court distinguished failure to report a crime from affirmative concealment of a crime. The court also “decline[d] to consider any of defendant’s other acts not alleged in this indictment” that might have supported the accessory after the fact charge. (2) There was sufficient evidence to support the defendant’s conviction of obstruction of justice for denying the authorities access to the daughter during the investigation. The court noted that the defendant interrupted one interview of the daughter by investigators, was present and “talked over” the daughter in several others, and generally “successfully induced [the daughter] to refuse to speak with investigating officers and social workers.” The court remanded the matter to the court of appeals for further consideration of whether there was sufficient evidence that the obstruction was felonious by virtue of an intent to deceive or defraud. (The other count of obstruction of justice, for pressuring the daughter to recant, had been affirmed by the court of appeals and was not before the supreme court.) Two dissenting Justices would have found sufficient evidence of accessory after the fact.

The defendant, the former District Attorney for Person and Caldwell Counties, was tried for obtaining property by false pretenses, conspiracy to obtain property by false pretenses, aiding and abetting obtaining property by false pretenses, three counts of obstruction of justice, and failure to discharge the duties of his office. The jury acquitted on one count of felony obstruction and the conspiracy count but convicted on the remaining charges (with the exception that the jury returned a verdict of guilty of misdemeanor obstruction on one of the remaining felony obstruction counts). The trial court subsequently arrested judgment on the aiding and abetting obtaining property conviction. The charges stemmed from a scheme whereby the defendant and another elected District Attorney hired each other’s wives to work in each other’s offices. Under this arrangement, both wives were wrongfully paid for working hours that they had not actually worked.

(1) There was insufficient evidence to support the conviction for obtaining property by false pretenses. The State alleged that the defendant acted in concert with the employee who improperly submitted work hours. Acting in concert requires the actual or constructive presence of the defendant at the scene of the crime. “A person is constructively present during the commission of a crime if he is close enough to provide assistance if needed and to encourage the actual execution of the crime.” Slip op. at 15 (citation omitted). Although the employee at issue worked for the defendant, she was allowed to work at her husband’s office in another district. The defendant was therefore not physically present when the fraud of reporting unworked hours occurred. The State argued that the defendant was constructively present, pointing out that the fraudulent hours were approved by a supervisor at the defendant’s direction. The court rejected this argument, noting that the approval of hours occurred at a much later time than when the hours were submitted. While “actual distance is not determinative, . . . the accused must be near enough to render assistance if need be and to encourage the actual perpetration of the crime.” Id. at 19 (citation omitted). Here, the defendant was not in the same county as the employee who submitted the fraudulent hours at the time they were submitted. The fact that the employee could have called the defendant for help with the crime at the time was not enough to satisfy the constructive presence element. “To hold the theory of acting in concert would be satisfied merely where ‘remote assistance’ is possible would broadly expand the universe of criminal conduct under this theory.” Id. at 22. Thus, the defendant’s conviction for acting in concert to obtain property by false pretenses was vacated for insufficient evidence [although the trial court was instructed on remand to reinstate the judgment previously arrested for aiding and abetting obtaining property].

(2) There was also insufficient evidence of felony obstruction of justice. That offense requires the State to prove that the defendant actually impeded the administration of justice. The indictment alleged that the defendant made false statements to an SBI investigator concerning the employee. One of the defendant’s statements at issue was “at most misleading, and not false,” as it was a misrepresentation by omission and not affirmatively a false statement as the indictment charged. There was sufficient evidence that another of the defendant’s statements to the investigator was false, but there was no evidence that this statement actually obstructed the course of the investigation. The defendant responded truthfully to some of the investigator’s questions about the employee, which actually facilitated the investigation. The defendant was never directly asked whether the employee was in fact performing work for the defendant. “To support a conviction for obstruction of justice, the State must establish substantial evidence for every element of the crime, including that the act in question ‘obstructed justice[.]’” Id. at 27 (citation omitted). The motion to dismiss for felony obstruction of justice therefore should have been granted, and that conviction was vacated. 

(3) The defendant argued that the trial court improperly excluded testimony regarding an email sent by an assistant to the Administrative Office of the Courts at the defendant’s direction. At trial, the defendant argued that the email fell within the business records exception to the prohibition on hearsay, that the email was simply not hearsay, and that the State opened the door to the admission of the email through its questions of the witness. On appeal, the defendant argued that the email should have been admitted because it was a directive to his employee, pointing to cases holding that commands are not hearsay because they are not offered for the truth of the matter (rather, they are offered to show that the command was given). It was not apparent from context that the defendant was arguing for the email’s admission as a command, and the parties and trial court did not address that argument. Since this argument was not made at the trial level, it was not preserved and was waived on appeal.

(4) The trial court did not commit plain error by failing to instruct the jury on the specific misrepresentations for the obtaining property by false pretenses offenses. “[A] jury instruction that is not specific to the misrepresentation in the indictment is acceptable so long as the court finds ‘no variance between the indictment, the proof presented at trial, and the instructions to the jury.’” Id. at 34 (citation omitted). The defendant argued that the evidence showed alternative false representations that the jury could have improperly relied on in rending its verdict of guilty for the two offenses. Reviewing the evidence, the court rejected this argument. “We hold the trial court did not err, nor plainly err, in failing to give an instruction about the misrepresentation alleged in the indictment.” Id. at 37.

Over a dissent, the court held that there was sufficient evidence in this common law obstruction of justice case that the defendant’s obstructive acts were done “with deceit and intent to defraud” such that under G.S. 14-3(b) the offense was punishable as a felony rather than as a misdemeanor.  The defendant was told by another family member that the defendant’s daughter was the victim of sexual abuse by the defendant’s husband, who was the daughter’s adoptive stepfather.  The State’s evidence showed that despite believing that abuse had occurred, the defendant engaged in a course of conduct whereby she denied child protective services and sheriff’s department investigators access to her daughter and otherwise frustrated their investigation.  The defendant intervened in the investigation by remaining within hearing distance or being present during “almost every interview” investigators conducted with her daughter, not permitting her daughter to answer certain questions and answering for her during one interview, sending text messages to her daughter and physically interrupting another interview, “constantly” influencing her daughter’s statements in interviews by verbally abusing and punishing her, instructing her daughter not to speak with investigators, and directing investigators not to speak with her daughter in private.  The defendant also directed her daughter to lie to investigators.  The court stated that this conduct regarding investigative interviews which occurred while the defendant believed her daughter had been the victim of abuse was sufficient to allow a reasonable juror to infer that the defendant’s denial of access to her daughter was committed with deceit and intent to defraud.  The court went on to hold that subsequent similar obstructive actions occurring after the defendant had actually witnessed her daughter being raped by the defendant’s husband was sufficient circumstantial evidence that the defendant had acted with deceit and intent to defraud when she denied investigators access to her daughter while merely under the belief that she had been sexually abused.

Judge Tyson dissented, expressing the view that evidence showing that the defendant “presented her daughter and allowed access every time upon request” by investigators negated the “deceit and intent to defraud” element of the felony version of the offense.  Judge Tyson noted that all of the interactions between investigators and the defendant’s daughter were “voluntary,” in that none of them were supported by a warrant or other court order.

(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of felonious obstruction of justice where the defendant gave eight written contradictory statements to law enforcement officers concerning a murder. In his first statements, the defendant denied being at the scene but identified individuals who may have been involved. In his next statements he admitted being present and identified various alternating persons as the killer. At the end of one interview, he was asked if he was telling the truth and he responded “nope.” A SBI agent testified to the significant burden imposed on the investigation because of the defendant’s conflicting statements. He explained that each lead was pursued and that the SBI ultimately determined that each person identified by the defendant had an alibi. (2) No double jeopardy violation occurred when the trial court sentenced the defendant for obstruction of justice and accessory after the fact arising out of the same conduct. Comparing the elements of the offenses, the court noted that each contains an element not in the other and thus no double jeopardy violation occurred.