Smith's Criminal Case Compendium
Table of Contents
State v. Simpson, COA23-618, ___ N.C. App. ___ (Aug. 20, 2024)
In this New Hanover County case, defendant appealed her convictions for felony forgery of endorsement and felony uttering a forged endorsement, arguing error in (1) denying her motion to dismiss the uttering a forged instrument charge due to a flawed indictment, and (2) admitting an out-of-court identification based on a photograph in violation of the Eyewitness Identification Reform Act (EIRA), or in the alternative, (3) ineffective assistance of counsel. The Court of Appeals found no error and no ineffective assistance of counsel, but remanded to correct the judgment’s clerical error of a guilty verdict as opposed to a guilty plea.
On February 7, 2019, defendant was assigned as a home care assistant for the victim’s husband, who had dementia. On that day, the victim went out to run errands while defendant was at home with her husband. The following day, the victim noted two checks were missing, and reported this to defendant’s employer, as well as to her bank. In August of 2019, the victim received a notice regarding one of the checks she had reported stolen; Wilmington police later determined the check was made out to one of defendant’s aliases.
Beginning with (1), the Court explained that defendant’s argument was “that the indictment fails to allege the facts and elements of the crime of felony uttering a forged endorsement with sufficient precision, leaving her without notice of the offense being charged and unable to prepare a defense.” Slip Op. at 6. This was a nonjurisdictional defect under recent North Carolina Supreme Court precedent, so defendant had to show a statutory or constitutional defect that prejudiced her defense to prevail. The court did not see any such statutory or constitutional issue after examining the elements of the offense and the indictment, concluding “Count III of the indictment is facially valid, having sufficiently alleged each essential element of [G.S.] 14-120.” Id. at 8.
Moving to (2), the court first explained that “the EIRA bans photographic show-ups; however, not all out-of-court identifications are show-ups as defined in and subject to the EIRA.” Id. at 9 (cleaned up). Here, the victim identified defendant in an out-of-court photograph, but this identification was after the victim had already identified defendant as a possible perpetrator to the police. Since the identification was not intended to identify defendant as the perpetrator, “the EIRA [was] inapplicable here.” Id. at 13. The court also determined that the identification did not violate defendant’s due process rights, declining to invoke Rule of Appellate Procedure 2 to consider her argument.
Because the court did not establish any error in (2), the court likewise found no ineffective assistance of counsel for (3). Even though defense counsel failed to move to suppress the out-of-court identification on EIRA and due process grounds (although counsel did object to testimony on EIRA grounds), based on the analysis above, these arguments lacked merit.