Smith's Criminal Case Compendium

Smith's Criminal Case Compendium


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., 06/21/2024
E.g., 06/21/2024
State v. Pabon [Duplicated], 273 N.C.App. 645, 850 S.E.2d 512 (Oct. 6, 2020) modified and affirmed on other grounds, 2022-NCSC-16, 867 S.E.2d 632 (Feb 11 2022)

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.

During cross-examination of the complaining witness in a case involving a charge of assault on a female, the defendant began a line of questions to which the State objected. The trial judge excused the jury and conducted a voir dire, during which the defendant’s counsel demonstrated the proposed cross- examination of the witness, including questions about her mental health and treatment. The trial judge ruled that those questions were not relevant and that to the extent they were relevant they were more prejudicial than probative. When cross-examination resumed in front of the jury, the defendant did not attempt to elicit testimony about the witness’s mental health. (1) The Court of Appeals rejected the State’s argument that the defendant failed to preserve for appellate review the issue of the judge’s refusal to allow the testimony. The defendant was not required to elicit the testimony before the jury where, as here, the defendant elicited the testimony in voir dire and secured a ruling from the trial judge. The Court distinguished State v. Coffey, 326 N.C. 268 (1990), where the trial judge conducted a voir dire, ruled that most of the proposed testimony was inadmissible, but indicated that counsel could ask other questions, which the judge would rule on when the questions were asked. When the jurors returned, however, the defendant did not ask any questions, including questions not yet ruled on by the judge. (2) The Court recognized that North Carolina allows cross-examination of a key witness regarding the witness’s past mental problems or defects to challenge the witness’s credibility, citing State v. Williams, 330 N.C. 711 (1992). The Court found in this case that the excluded testimony concerned prior instances of the witness’s mental health and treatment and that one instance involved treatment the witness had sought for childhood trauma; however, the Court stated that the defendant did not ask or attempt to introduce evidence about a mental health diagnosis or mental state. The Court held that the defendant failed to show that the trial judge abused his discretion in finding that the excluded testimony was not relevant or to the extent it was relevant that it was more prejudicial than probative. (3) The defendant argued that the trial judge committed plain error by charging the jury that the alleged assault involved “grabbing, pushing, dragging, kicking, slapping, and/or punching” when the criminal summons alleged “striking her neck and ear.” The Court rejected the defendant’s variance argument because the defendant failed to object to the instruction at trial, did not request that the trial judge including the “striking” language from the summons, and contributed to the variance by proposing that the judge add the words slapping and punching to the instruction.

In this armed robbery case, the trial court did not err by failing to designate in its jury instruction the two individuals named in the indictment as the alleged victims.  The defendant was indicted for armed robbery of two boys, Elijah and Shalik, who were specifically identified as victims in the indictment.  The jury heard evidence that on the evening of the crime the defendant obtained the shotgun he used when robbing Elijah and Shalik by taking it without authorization from a vehicle occupied by two men, Desean and Tevin, and that he had threatened them with the shotgun after taking it.  The jury also heard evidence that prior to taking the shotgun the defendant had attempted to rob a woman, Yvette, using a handgun. 

The trial court instructed the jury using NCPJI CRIM 217.20, applicable to armed robberies involving a firearm, but, in a departure from the indictment, did not designate the victims Elijah and Shalik.  Because the evidence before the jury did not support a conviction for robbery with a firearm of Desean, Tevin, or Yvette, the court rejected the defendant’s argument that the trial court’s instruction left the jury free to convict him based on the uncharged offenses involving those people.  The court noted, however, that the better practice is to designate the victim in jury instructions for robbery with a firearm.

The defendant was charged with assault with a deadly weapon inflicting serious injury for his role in an assault that occurred inside a jail. The defendant and two other inmates assaulted the victim by punching, kicking, and hitting him with a broom. As a result of the assault, the victim suffered a bloody nose, bruises and red marks, and multiple fractures around his nose and eye. During the charge conference at the defendant’s trial, the court agreed to submit the lesser-included offenses of assault inflicting serious injury and simple assault, but did not submit the lesser-included offense of assault with a deadly weapon, despite the defendant’s request. The jury convicted the defendant of the charged offense, and the defendant appealed.

The appellate court agreed with the defendant that it was error not to submit the lesser-included offense of assault with a deadly weapon, and reversed his conviction and remanded for a new trial. The decision to submit a lesser-included offense is reviewed de novo, and the offense should be submitted to the jury if there is evidence in the record, when viewed in the light most favorable to the defendant, from which a rational juror could convict of the lesser charge. In this case, there was evidence from which a rational juror could have concluded that the victim did not suffer serious injury. The victim’s medical treatment was relatively brief, and the trial testimony indicated that the victim’s facial fractures were less serious and less painful than a broken arm, an injury which past cases have held warranted submitting the lesser offense to the jury.

 The defendant also challenged the imposition of a civil judgment for attorney fees without providing notice and an opportunity to be heard. Since the underlying conviction was reversed and remanded, the appellate court vacated the civil judgment as well.

The trial court did not err by denying the defendant’s motion to dismiss a charge of second-degree kidnapping and did not commit plain error by failing to instruct the jury on the confinement theory of kidnapping alleged in the indictment.  The second-degree kidnapping indictment alleged that the defendant unlawfully confined the victim without consent and for the purpose of facilitating felony armed robbery.  In moving to dismiss the kidnapping charge, the defendant argued that the victim was not restrained to a degree over that inherent in the underlying robbery, which involved the defendant entering the victim’s bedroom while brandishing a gun and motioning for the victim to move from that room to another and ordering the victim to lie on the ground upon moving rooms.  Noting the State’s acknowledgement that the question of whether confinement or restraint is of a degree beyond that inherent in robbery such that a kidnapping conviction also is proper involves “a very tangled area of the law,” the court reviewed relevant precedent on its way to determining that there was no error in the defendant’s kidnapping conviction.  The court explained that the movement of the victim from his bedroom to the other room was not essential to complete the robbery, that the victim was held in the other room for some time, and was exposed to greater danger by being moved and held at gunpoint.

In response to the defendant’s argument that the trial court plainly erred by instructing the jury on kidnapping by restraint or removal but not confinement despite the indictment alleging kidnapping based solely on confinement, the court conducted a “highly fact sensitive” analysis and concluded that the defendant failed to show a possibility that a reasonable jury would have found that the victim in this case was removed or retrained but was not confined. 

Judge Murphy concurred in result only, expressing the view that the majority improperly equated removal and confinement when analyzing the defendant’s motion to dismiss the kidnapping charge.  Judge Murphy also expressed the view that the trial court erred in its jury instruction on kidnapping because the instruction did not track the indictment, but found that the error did not rise to the level of plain error.

The defendant was convicted of two counts of sexual offense with a child by an adult, rape of a child, first-degree kidnapping, and two counts of taking indecent liberties with a child in Wake County, stemming from the assault of a six-year-old child at a church.

(1) In regard to one of the indecent liberties convictions, the defendant argued that the State did not present sufficient evidence that the defendant acted inappropriately when touching the victim’s chest and that such evidence was only offered for corroborative purposes. The victim’s testimony discussing the touching of her chest was only presented by way of her videotaped forensic interview and was not raised in the victim’s trial testimony. The Court of Appeals disagreed, finding that the videotaped forensic interview of the victim “was properly admitted under Rule 803(4) as her statements were made for the purposes of medical diagnosis or treatment, and the statements were reasonably pertinent to diagnosis or treatment.” Slip op. at 8. Additionally, the trial court instructed the jury to consider the video as substantive evidence. The Court of Appeals therefore determined that “[t]he evidence was sufficient to support denial of the motion to dismiss the challenged charge of taking indecent liberties with a child.” Id.

The defendant also argued that there was insufficient evidence to support a finding that the defendant forcibly removed the victim to facilitate the offense, an essential element of the crime of kidnapping. Specifically, the defendant argues the evidence does not show that he used actual force, fraud, or trickery to remove the victim. The Court of Appeals rejected this argument as well, finding that the defendant’s act of taking the victim to a secluded place to continue the sexual assault was sufficient to support removal for purposes of kidnapping.

(2) Concerning the defendant’s convictions of first-degree kidnapping and sexual offense with a child, the defendant argued “that the trial court erred by instructing on first-degree kidnapping and by failing to instruct on sexual offense with a child by an adult.” Id. at 10. The Court of Appeals found no prejudicial error in the instruction given on first-degree kidnapping because “[t]he evidence at trial was consistent with the allegations in the indictment,” even though the language of the jury instruction varied from the indictment. Id. at 11. The kidnapping indictment stated that “[D]efendant also sexually assaulted [Maya]” while the jury was instructed “that the person was not released by the defendant in a safe place.” Id. at 11-12. The Court of Appeals noted that such variance is usually prejudicial error but determined that the evidence here supported both the theory of the indictment and that of the jury instructions. On plain error review, the court rejected the defendant’s argument and concluded “it is not probable that the jury would have reached a different result if given the correct instruction.” Id. at 12.

The defendant also argued that the trial court erred by entering judgment on sexual offense with a child by an adult after instructing the jury on first-degree sex offense, a lesser offense. The Court of Appeals agreed. Because “[t]he jury instruction clearly outlined the lesser included offense of first-degree sexual offense . . . it was improper for the trial court to enter judgment for two counts of sexual offense with a child.” Id. at 17. The trial court did not instruct on the essential element of age as to the sexual offense with a child by an adult charge. The defendant was therefore impermissibly sentenced beyond the presumptive range for the lesser included offense of conviction. The Court of Appeals determined this was prejudicial error and vacated the defendant’s conviction of sexual offense with a child by an adult, remanding for resentencing on the first-degree sexual offense charge.

(3) The defendant argued that the trial court erred in certain evidentiary rulings. First, the defendant alleged that expert testimony regarding the DNA profile from the victim’s underwear (matching to the defendant) should not have been admitted because there was an insufficient foundation to satisfy the requirements of Rule 702(a)(3) of the North Carolina Rules of Evidence. The Court of Appeals disagreed, finding that the witness was “a qualified expert in the field of forensics and an employee at the North Carolina State Crime Lab, [who] testified to her qualifications in the area of DNA analysis as well as her training and experience in gathering evidence for DNA profiles.” Slip op. at 19. Further, the Court explained:

[The witness] thoroughly explained the methods and procedures of performing autosomal testing and analyzed defendant’s DNA sample following those procedures. That particular method of testing has been accepted as valid within the scientific community and is a standard practice within the state crime lab. Thus, her testimony was sufficient to satisfy Rule 702(a)(3). Id. at 21.

The defendant also argued that it was plain error to allow prior bad acts evidence under Rule 404(b) of the North Carolina Rules of Evidence, claiming that the prior incident was unrelated to the current offense. The Court of Appeals determined that the trial court did not err because the facts in both cases were similar enough to be admitted for 404(b) purposes. The trial court’s findings that “both females were strangers to defendant; they were separated from a group and taken to a more secluded location; they were touched improperly beginning with the buttocks; and they were told to be quiet during the assault,” supported the admission of this evidence under Rule 404(b). Id. at 23.

(4) Finally, the defendant argued that the trial court erred by allowing cross-examination of his father and contends the State elicited irrelevant testimony from his father. Specifically, the defendant objected to the admission of questions and testimony about whether the defendant’s father warned members of the church about the defendant’s potential dangerousness. The Court of Appeals rejected this argument and determined “the questions on cross-examination elicited relevant testimony and were well within the scope of defendant’s father’s direct testimony that defendant needed frequent supervision for basic activities.” Id. at 27-28.

Judge Murphy authored a separate opinion concurring in part, concurring in result only in part, and dissenting in part. Concerning the sexual offense jury instruction, Judge Murphy believed “the trial court erred in instructing the jury, however, since the jury found beyond a reasonable doubt Defendant was at least 18 years old in another portion of its verdict and all the charges against Defendant occurred on the same date, there was no plain error.” Slip op. at 5 (Murphy, J., dissenting). Judge Murphy also pointed out that “[h]ad the jury been correctly instructed on the first-degree kidnapping indictment language and found Defendant guilty of first-degree kidnapping based on sexual assault the trial court could not have sentenced Defendant for all the sexual offenses and the first-degree kidnapping offense without violating double jeopardy.” Id. at 13. Following the guidance of State v. Stinson, 127 N.C. App. 252, Judge Murphy believed that the court should have arrested judgment on the first-degree kidnapping conviction and remanded for resentencing on second-degree kidnapping to avoid double jeopardy issues. Lastly, Judge Murphy did not believe the defendant preserved the issue of his father’s testimony for review and would have refused to consider that argument.

The defendant, a fisherman, was charged with violating marine fisheries regulations after he left gill nets and crab pots unattended for too long. The officer that cited Defendant for these violations used a form citation indicating that the Defendant was being charged with committing these regulatory violations “unlawfully and willfully.” The defendant was convicted by a jury of the unattended gill net offense in superior court. (1) On appeal, the defendant argued that the trial court committed plain error by failing to instruct the jury that the State must prove that his violation was willful, contending that the offense was not a strict liability offense. The Court of Appeals disagreed, concluding that G.S. 113-135(a), the statute that criminalizes the conduct at issue, did not establish a mens rea for the offense. The Court rejected the defendant’s argument that the General Assembly did not authorize the creation of strict liability regulatory offenses. In light of the language of the statutes governing these “public welfare” offenses, their relatively minor punishment, and the logistical difficulty of investigating the willfulness of every such violation, the Court held that they are strict liability offenses that do not require the State to prove intent. (2) The Court also held that the trial court did not err in failing to instruct the jury on willfulness, despite the language in the charging instrument alleging that the defendant acted “willfully.” That language went beyond the elements of the offense and was properly disregarded as surplusage.

In this Lincoln County case, the defendant stole a car left running outside of a gas station. A three-year old child was in the backseat. Once officers attempted to stop the car, the defendant led police on a high-speed chase and ultimately crashed. The child was not harmed. During the chase, the defendant called 911 and attempted to bargain for the child’s release. He was charged with first-degree kidnapping, abduction of a child, larceny of a motor vehicle, possession of stolen property, and habitual felon. The jury convicted on all counts. The defendant did not appeal, but later filed a petition for writ of certiorari seeking review of his convictions, which was granted.

(1) The child abduction statute includes language that the offense must occur “without legal justification or excuse.” See G.S. § 14-41(a). The defendant contended that this language required the State to prove that the defendant acted willfully, and that the failure to instruct the jury on mens rea improperly treated the crime as a strict liability offense. The Court of Appeals disagreed. There is no requirement of “willfulness” in the language of the statute. While the offense is not a strict liability crime, it is also not a specific intent crime as defendant argued. Rather, the offense is a general intent crime, requiring a showing only that the defendant acted “knowingly.” The “without justification or excuse” language in the statute allows the defendant to argue defenses like mistake of fact, necessity, or others, but does not create a specific intent requirement. This argument was therefore rejected. 

(2) There was sufficient evidence to support the conviction for child abduction. The evidence showed that the defendant continued driving the car at high speeds while fleeing police, even after realizing that a child was in the backseat. After the point at which the defendant called 911 and acknowledged the presence of the child in the car, he continued to disobey police and dispatch commands to stop and continued fleeing for at least 15 minutes. Though “[a] defendant may exculpate a mistake though subsequent conduct,” the defendant here made no such showing. Slip op. at 10.

(3) There was no error, much less plain error, in the trial court’s failure to instruct the jury that the defendant must have acted willfully in abducting the child, for the same reasons that the statute does not create a specific intent crime. There was therefore no error in the trial court’s instructions to the jury for that offense.

(4) During a pretrial conference, the parties agreed that the jury would be instructed only on removal as the State’s theory for first-degree kidnapping, which was the theory alleged in the indictment. At charge conference, the State requested and received jury instructions on all three possible theories (restraint, removal, or confinement). See G.S. § 14-39. Trial counsel for the defendant assented to those instructions and did not otherwise object. Despite trial counsel’s agreement, this argument was not waived and could be reviewed for plain error. However, the court found no plain error based on the evidence (which supported each theory), and the fact that there was no conflicting evidence as to the three theories. “Defendant cannot demonstrate plain error because it is undisputed that the evidence at trial supported the theory of kidnapping alleged in the indictment––removal––and also supported the two additional theories of kidnapping included in the instruction––restraint and confinement.” French Slip op. at 12.

(5) The trial court erred in sentencing the defendant for possession of stolen goods (the car) and larceny of a motor vehicle. “A defendant cannot be convicted of both [of these] offenses when the subject property is the same.” Id. at 14. The Court of Appeals therefore vacated the conviction for the possession of stolen goods conviction and found no error as to the defendant’s other convictions.

The defendant was convicted at trial of impersonating an officer and possession of a weapon of mass destruction (flashbang grenades) in Onslow County. On appeal, the Court of Appeals determined that flashbang grenades did not qualify as a weapon of mass destruction and vacated that conviction. The N.C. Supreme Court reversed on that point and remanded for the Court of Appeals to consider the defendant’s other arguments. The defendant filed a new brief with the court, arguing the trial court erred by failing to instruct the jury about the exception for lawful possession of weapons of mass destruction. See G.S. § 14-288.8(b)(3). The defendant contended that he presented evidence that he qualified for the exception as a person “under contract with the United States” and it was error to fail to instruct the jury on the exception. While the defendant challenged jury instructions in his original brief to the Court of Appeals, he did not raise this issue. He therefore asked the court to invoke Rule 2 of the Rules of Appellate Procedure to review this argument, and the court granted that request.

At trial, the defendant presented evidence that he was an active-duty U.S. Marine serving as a weapons technician, and that he came into possession of the grenades as part of his duties in that capacity. The State did not contest this evidence at trial, but argued on appeal that the defendant failed to promptly return the weapons to the Marine Corps and that the defendant was “on a detour” (and not acting in his capacity as a solider) at the time of the offense. “Even if the State’s argument is true, this would not overcome Defendant’s properly admitted testimony and his right for the jury to resolve this issue.” Carey Slip op. at 8. The trial court had a duty to instruct the jury on all substantial features of the case, including the defense of lawful possession raised by the defendant’s evidence, and its failure to do so was plain error. The judgment of conviction for possession of a weapon of mass destruction was therefore vacated and the matter remanded for a new trial on that offense.

Judge Young dissented. According to his opinion, the N.C. Supreme Court’s decision remanding the case was limited to “the defendant’s remaining challenges” – those that were raised but not decided in the defendant’s original appeal to the Court of Appeals. The mandate therefore did not include new arguments that had not previously been raised at all, and Judge Young would not have considered the lawful possession argument.

The defendant was convicted of accessory after the fact to a felony and felony obstruction of justice in Cleveland County relating to her efforts to assist a murder suspect (later convicted of second-degree murder) evade capture. (1) The defendant argued the statutory offense of accessory after the fact abrogated the common law offense of obstruction of justice in part, such that she could not be convicted of both. The North Carolina Supreme Court previously rejected this argument inIn re Kivett, 309 N.C. 635, 670 (1983), which defeated this claim. The defendant also argued that the two offenses were the same for purposes of double jeopardy, in that they are greater- and lesser-included offenses of each other. This argument has also been rejected by the prior decisions of the Court of Appeals, as the offenses have different elements: “This Court has expressly held that accessory after the fact and obstruction of justice do not constitute the same offense, and that neither is a lesser-included offense of the other.” Cruz Slip op. at 9 (citation omitted). Substantial evidence supported each instruction as well. As to the accessory conviction, the evidence showed the defendant provided personal assistance to the suspect while knowing he was wanted for murder. As to the obstruction conviction, the defendant lied to detectives about seeing or communicating with the suspect and deleted information from her phone showing she was in communication with him after police expressed an interest in her phone. This evidence was sufficient to support the instructions for each offense and the trial court did not err by so instructing the jury.

(2) The trial court did not commit plain error by failing to instruct the jury that if the defendant believed the killing was done in self-defense, she could not be convicted of accessory after the fact. Even if the defendant believed the killing was justified, the evidence here was sufficient to raise “a reasonable inference that the [D]efendant knew precisely what had taken place,” as she had notice of the suspect’s outstanding arrest warrant for murder at the time of her assistance to the defendant and her deceptions to law enforcement. The convictions were therefore unanimously affirmed.

The defendant’s sole argument on appeal was that the trial judge violated the statutory mandates of G.S 15A-1231 and 15A-1232 by allowing the clerk to read some of the jury instructions to the jury. The judge had the clerk read the instructions on “(1) the function of the jury; (2) the presumption of innocence; (3) the State’s burden of proof and the definition of reasonable doubt; (4) the jury’s duty in evaluating the credibility of witnesses; (5) the weight of the evidence; (6) the definitions of direct and circumstantial evidence; and (7) the effect of Defendant’s decision not to testify.” The judge read the remainder of the instructions about the specific charges and factual findings required by the jury to convict the defendant. The defendant argued that this procedure gave the jury the impression that the first instructions were less important than those read aloud by the judge herself. The Court of Appeals held that the trial judge violated the statutory mandate that the judge give all instructions to the jury. The Court urged the trial bench not to avoid its statutory duty and emphasized its importance. The Court also recognized the possibility of prejudice by the failure to do so but found the error harmless in this case. The trial judge instructed the jury to listen closely to the clerk; the judge interjected several times to correct misstatements by the clerk; the jury reached its verdict without seeking clarification from the judge; and when asked by the judge for any additions or corrections to the instructions, counsel for the defendant said no.

The defendant was a passenger in a car stopped at a traffic checkpoint. An officer smelled marijuana emanating from the vehicle. The defendant told the officer that the marijuana was located in a bag behind the driver’s seat. The officer found a drawstring bag there, which the defendant said was his. Inside the bag, the officer found two plastic bags containing marijuana, a hookah, a snort straw, and a beer can. The beer can was altered to be a container that could be unscrewed. Inside the beer can the officer found two white crystallized substances later identified as Methylone and a Lorazepam tablet.

The defendant was charged with felony possession of a Schedule I controlled substance (Methylone), misdemeanor possession of marijuana, and misdemeanor possession of drug paraphernalia based on his possession of the altered beer can. He was convicted and sentenced to 6 to 17 months for the felony and 120 days (to run consecutively) for each misdemeanor offense. Each sentence was suspended, and the defendant was placed on probation for 36 months. He also was ordered to serve 12 days of special probation for the felony.

The defendant argued on appeal that the trial court erred by giving jury instructions that did not identify the item that served as the basis for the defendant’s drug paraphernalia charge (the altered beer can) and that referred to marijuana in addition to Methylone. The defendant was charged with possession of drug paraphernalia under G.S. 90-113.22, not possession of marijuana paraphernalia, a separate crime under G.S. 90-113.22A. The defendant argued that the reference to marijuana may have caused the jury to consider the items associated with the marijuana, including the drawstring bag and the plastic bags containing the marijuana. Because the defendant did not object to the jury instructions at trial, the court of appeals reviewed for plain error.

 The court of appeals determined that naming marijuana in the instructions varied from the indictment and was error. However, the appellate court found that the facts presented during trial undercut any perceived probable impact on the jury. The officer gave substantially more testimony about the altered beer can and its contents than the other containers. The other bags were not discussed in detail, while the beer can was the subject of focused and specific questions, and the jury was given a demonstration of how it unscrewed. The marijuana was entered into evidence inside the plastic bags, “indicating that the bag was part and parcel of the marijuana possession.” Slip op. at 11. The beer can, in contrast, was its own exhibit, and the drawstring bag was not entered into evidence at all. In addition, the jury convicted the defendant of possessing Methylone, a drug contained exclusively in the beer can, suggesting that the jury also believed the defendant possessed the can itself, which, unlike the other items, was designed for the specific purpose of containing and concealing drugs. Thus, the court concluded that the defendant failed to show that the trial court’s error had a probable impact on the jury’s finding of guilt and, as such, was not plain error.

The defendant was convicted by a jury of seven sex crimes against a five-year-old victim, including statutory rape of a child by an adult, statutory sexual offense with a child by an adult, and indecent liberties with a child. At trial, the State presented a nurse practitioner who testified about the medical evaluation given to the victim. The nurse practitioner testified without objection that the victim gave “clear and concise statement[s] regarding child sexual abuse,” and that her own testimony was “based off a complete medical evaluation, not only [the victim’s] statements.” (1) On appeal, the defendant argued that the trial court committed plain error by impermissibly allowing the nurse practitioner to testify to the truth of the victim’s statements to the extent that she offered a conclusive diagnosis without physical evidence. The court rejected the argument, noting first that the witness never actually offered a conclusive diagnosis. To the contrary, she gave testimony relevant to helping the jury understand that a lack of physical evidence in a medical exam did not preclude sexual abuse. Moreover, any error related to the nurse practitioner’s detailed testimony about sexual abuse, including penetration, was deliberately elicited by the defendant on cross-examination. Regardless, the defendant did not demonstrate that the jury would have reached a different result in light of all the other unchallenged evidence. (2) The defendant also argued that the trial judge erred by excluding the testimony from two defense witnesses who allegedly asked the victim’s mother to stop talking about sex in front of children. The court of appeals disagreed, concluding that the proffered testimony—that the victim may have learned explicit language about sexual abuse from her mother and not from her personal experience with abuse—was too speculative and not within the witnesses’ personal knowledge. (3) Finally, the trial court did not err by failing to give a limiting instruction indicating that the nurse practitioner’s statistical testimony could be considered only for corroborative purposes. Reviewing the argument for plain error, the court concluded that the nurse practitioner’s testimony was proper, and that any error would not be prejudicial in any event in light of the collective evidence of guilt.

The trial court did not err in this murder case by declining to use the defendant’s requested special instruction on deliberation. The defendant also requested a special jury instruction that paraphrased a passage from State v. Buchanan, 287 N.C. 408 (1975) to explain the concept of deliberation. The trial judge did not err by refusing that request and using the pattern jury instruction on deliberation instead. The pattern jury instruction was a correct statement of the law, and it embraced the substance of the defendant’s request.

(1) In an involuntary manslaughter case where a death occurred during a high speed chase by a bail bondsman in his efforts to arrest a principal, the trial court did not err by instructing the jury that bail bondsmen cannot violate motor vehicle laws in order to make an arrest. While the statute contains specific exemptions to the motor vehicle laws pertaining to speed for police, fire, and emergency service vehicles, no provision exempts a bail bondsman from complying with speed limits when pursuing a principal. (2) The trial court did not err by failing to submit to the jury the question whether the defendant’s means in apprehending his principal were reasonable. Under the law the defendant bail bondsman was not authorized to operate his motor vehicle at a speed greater than was reasonable and prudent under the existing conditions because of his status as a bail bondsman. It concluded:

Just as the bail bondsmen cannot enter the homes of third parties without their consent, a bail bondsmen pursuing a principal upon the highways of this State cannot engage in conduct that endangers the lives or property of third parties. Third parties have a right to expect that others using the public roads, including bail bondsmen, will follow the laws set forth in Chapter 20 of our General Statutes.

The trial court did not err by refusing to instruct the jury on jury nullification.

No plain error occurred when the trial judge referred to the complainant as the victim several times in the jury instructions.

In a case involving a charge of possession of implements of housebreaking, the trial court erred by instructing the jury that bolt cutters, vice grips, channel lock pliers, flashlights, screwdrivers, a hacksaw, and a ratchet and socket are implements of housebreaking. The instruction was tantamount to a peremptory instruction that the tools at issue were implements of housebreaking. However, the error was not plain error.

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