Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
Table of Contents
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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The defendant was speaking at an anti-abortion event outside an abortion clinic in Charlotte. He was using an amplified microphone and was sitting at the table where the amplification controls were located. Officers measured his amplified voice at more than 80 decibels and approached him to cite...
Circumstantial evidence indicated that a juvenile wrote “BOMB INCOMING” in a school bathroom. Officers obtained a juvenile petition charging the juvenile with making a false report of mass violence on educational property in violation of G.S. 14-277.5. The petition alleged in pertinent part that...
The defendant was charged with possession of various drugs found in his bedroom and an adjoining alcove, which he said was his personal space. The defendant shared the house with a number of people, including a woman named Ms. Stepp. The defendant consented to a search of his bedroom and alcove...
The defendant was charged with driving while license revoked, not an impaired revocation; assault on a female; possession of a firearm by a person previously convicted of a felony; attempted robbery with a dangerous weapon; and habitual felon status. The State proceeded to trial on the charges...
The defendant was convicted of first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and attempted first-degree murder. The opinion describes in detail the beatings inflicted with a bat by the defendant and two others on the deceased and her fiancé, who...
The defendant was indicted for possession of a firearm—specifically, “a New England Firearms Pardner Model 12 Gauge Shotgun”—by a person previously convicted of a felon. The defendant initially told officers, who were investigating a report of a domestic dispute at the defendant’s home, that he...
The defendant was convicted of and received consecutive sentences for assault with a deadly weapon inflicting serious injury (ADWISI) and assault by a prisoner with a deadly weapon inflicting bodily injury based on the same act of stabbing another prisoner. The Court of Appeals rejected the...
The plaintiff sued the State of North Carolina, City of Durham, various people who worked for the State Bureau of Investigation, the Durham Police Department, and the Durham County District Attorney’s office for a permanent injunction and money damages to redress harms allegedly suffered in...
The defendant was charged with possession of a firearm by a person previously convicted of a felony and resisting, delaying, or obstructing an officer. The State dismissed the resisting charge before trial, and the defendant filed a motion to suppress the firearm. The trial judge denied the...
When the defendant was treated at the hospital for gunshot wounds he sustained in his altercation with the victim, he provided another person’s name, date of birth, and address. A warrant for his arrest was issued under this false identity, and he was subsequently charged with identity theft....
At the start of his trial on drug charges, the defendant, through counsel, requested to waive his right to trial by jury in favor of a bench trial. The trial judge advised the defendant of the charges and the maximum punishment and asked several questions about the defendant’s request for a...
The defendant was cleaning his car in the street adjacent to his girlfriend’s apartment when several law enforcement officers arrived to execute a search warrant for the apartment. Before entering the apartment, a law enforcement officer approached the defendant and asked for his driver’s...
The court reversed the trial court’s order requiring the defendant to submit to lifetime satellite-based monitoring (SBM) on the basis that it ordered an unreasonable search. Though the State mentioned statistics and studies related to the risk of recidivism posed by sex offenders in its...
The court determined that the trial court erred in calculating the defendant’s prior record level (PRL) based on the defendant’s stipulation that a prior conviction for expired operators’ license was a Class 2 misdemeanor. At the time of the instant offense, driving with an expired license had...
The evidence showed that the defendant was in a car with two other men that arrived in a church parking lot near the victim’s house at the same time as another car driven by a female. The female then drove to the victim’s home and beeped her car horn. Shortly after the victim came out of his...
An officer testified at trial, without objection by the defendant, that the modus operandi of the crime was to use a female in a car by herself to gain access to the home for the purpose of committing an armed robbery. He further testified that there had been similar incidents in the area around...
In this case involving a motion to withdraw a plea and an MAR, the trial court did not err by denying the defendant’s motions. On April 10, 2018 the defendant pleaded guilty to felony drug offenses, answering affirmatively that he understood the charges to which he was pleading and that he was...
In this probation revocation case that was appealed by a petition for writ of certiorari, the court held that the defendant failed to demonstrate error with respect to the district court’s exercise of subject matter jurisdiction to revoke her probation. On May 5, 2017, the defendant was placed...
In this habitual larceny case where the defendant was sentenced as a habitual felon, the court held that the habitual larceny indictment was not facially invalid for failure to allege all essential elements of the offense. The defendant argued that the habitual larceny indictment was facially...
Over a dissent, the court held in this failure to register as a sex offender case that there was insufficient evidence that the defendant willfully failed to timely return an address verification form, deciding as a matter of first impression that the federal holiday Columbus Day is not a “...
In this armed robbery case, the trial court did not err by failing to instruct the jury on the lesser included offense of common law robbery. The court began its analysis by noting that “[o]nly one element distinguishes common law robbery and robbery with a dangerous weapon, and that element is...
Over a dissent in this SBM case, the court relied on State v. Griffin, ___ N.C. App. ___, 818 S.E.2d 336 (2018) to vacate the trial court’s imposition of lifetime satellite-based monitoring of the defendant. Under Griffin, “trial courts cannot impose satellite-based monitoring unless...
In this license revocation case arising from a DWI charge, the court concluded that the DMV did not have jurisdiction to revoke the petitioner’s drivers license because the affidavit submitted to the DMV showed that the arresting officer designated a blood test but that the petitioner refused a...
In this murder and attempted murder case, an officer responded to the shooting at the victim’s apartment. Upon arrival, he saw a man running with a towel in his hands and gave chase. The officer could not catch the man and instead found one of the victims, the defendant’s ex-girlfriend. She was...
In this murder and attempted murder case, the trial court did not err in allowing a substitute expert witness to testify to another expert’s conclusions on cell site location data connected to the defendant. The defendant complained that his rights to confront the witness were violated by the...
The defendant pled guilty pursuant to Alford to drug and firearms offenses and to habitual felon status. The plea agreement specified that the offenses would be consolidated for judgment and the defendant sentenced in a specific mitigated range. The defense stipulated to a Prior Record...
The defendant was serving an active sentence when he pled guilty to other felony charges. The sentencing court imposed two 20 to 24 month sentences, suspended for 36 months on the condition of supervised probation. In the event the defendant violated probation, the two sentences would be run...
At the conclusion of a probation revocation hearing, the defendant yelled vulgarities within earshot of the court. The trial court found the defendant in criminal contempt and sentenced him to an additional 30 days, consecutive to his other sentences. The trial court did not give the defendant...
The defendant pled guilty to controlled substance offenses pursuant to a bill of information and waiver of indictment. In an MAR, the defendant argued that the pleadings were defective and the trial court lacked jurisdiction because the waiver of indictment was not signed by his attorney. The...
Pursuant to a plea agreement, the defendant entered a no contest plea to charges including fleeing to elude and being an habitual felon, and in return several other charges were dismissed by the state. The defendant was advised of what his sentence would be, but was released on conditions until...
The defendant, a 69 year-old male, wrote a letter to an 11 year-old girl and asked her grandmother to deliver the letter. The grandmother read the letter, in which the defendant asked the girl to have sex with him to make him “feel young again,” and called the police. The defendant was charged...
Defendant was charged with two counts of misdemeanor death by motor vehicle by citation on December 24, 2013. On December 21, 2015, the state filed a misdemeanor statement of charges alleging the same offenses. While those charges were pending in district court, the grand jury issued a...
The trial court did not err in this murder case by declining to include a special jury instruction on specific intent in the final mandate. On the issue of specific intent, the trial judge gave the jury an instruction regarding voluntary intoxication and its effect on specific intent, but did...
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...
The trial court did not err in this murder case by failing to intervene ex mero motu to strike prosecutor’s comments during closing arguments. Citing case precedent, the court held that neither the prosecutor’s characterization of the defendant as “evil” nor a brief reference to the defense...
After discovering stolen property at a home across the street, officers approached the front door of the defendant’s residence after being informed by a witness that the person who stole the property was at the residence. No one answered the knock, and officers observed a large spiderweb in the...
In this assault with a deadly weapon inflicting serious injury case, the trial court properly instructed the jury regarding self-defense. The defendant was in a physical altercation with another woman, during which she cut the other woman a number of times with a knife. “Recognizing that a...
In this common law robbery case, the State laid a proper foundation for the admission of evidence located by a tracking dog, “Carlo.” Citing precedent, the court stated the four-factor test used to establish reliability of a tracking dog as follows:
[T]he...
In this driving while impaired case, the officer observed the defendant sitting on a porch and drinking a tall beer at approximately 9:00pm. The defendant was known to the officer as someone he had previously stopped for driving while license revoked and an open container offense. Around 11:00pm...
After discovering stolen property at a home across the street, officers approached the front door of the defendant’s residence after being informed by a witness that the person who stole the property was at the residence. No one answered the knock, and officers observed a large spiderweb in the...
The trial court erred by imposing a sentence inconsistent with that set out in his plea agreement without informing the defendant that he had a right to withdraw his guilty plea. The defendant was charged with multiple counts involving multiple victims and occurring between 1998 and 2015. On the...
The court rejected the defendant’s argument that the trial court’s judgment finding him guilty of Class D discharging a firearm into an occupied dwelling is inconsistent with the jury verdict. Specifically, the defendant argued that the jury only found him guilty of the Class E version of the...
In this embezzlement case, the trial court did not err by ordering the defendant to pay restitution. On 13 February 2017, the defendant and the victim entered into a settlement agreement resolving civil claims arising from the defendant’s conduct. The agreement obligated the defendant to pay the...
In a case where the defendant was convicted of taking indecent liberties with a child, the court held that the State failed to meet its burden of showing the reasonableness of the SBM program as applied to the defendant by failing to produce evidence concerning the efficacy of the program. It...
In this felony death by vehicle case, the trial court committed reversible error by admitting lay opinion testimony identifying the defendant as the driver of the vehicle, where the expert accident reconstruction analyst was unable to form an expert opinion based upon the same information...
A defendant cannot be convicted of two assault offenses (here, assault by pointing a gun and assault with a deadly weapon) based on a single assault. For a defendant to be charged with multiple counts of assault, there must be multiple assaults; this requires evidence of a distinct interruption...
The evidence was sufficient to support a conviction of discharging a weapon into occupied property. The defendant argued that the evidence was insufficient to show that the defendant knew that the property was occupied when he shot into the house. Here, an eyewitness testified that before...
An indictment charging the defendant with discharging a weapon into an occupied dwelling was not fatally defective. The defendant argued that the indictment was defective because it charged him with discharging a weapon into occupied property causing serious bodily injury, but failed to allege...
In this sexual assault case, no plain error occurred when the trial court referred to the complaining witness as “the victim” in the jury instructions. It is well-settled that when a judge properly places the burden of proof on the State, referring to the complaining witness as “the victim” does...
In this drug trafficking case, G.S. 15A-1331.2 did not deprive the trial court of jurisdiction to enter judgment after a PJC. The defendant pled guilty pursuant to a plea arrangement that provided for a PJC to allow the defendant to provide testimony in another case. Approximately 19 months...
(1) In this murder, robbery and assault case, the trial court properly found that a witness was unavailable to testify under Evidence Rule 804 and the Confrontation Clause. The witness, Montes, was arrested in connection with the crimes at issue. She cooperated with officers and gave a statement...
In this assault and possession of a firearm by a felon case, although the trial court erred by allowing the State to present evidence that the defendant had a history of narcotics activity, the error did not rise to the level of plain error. The trial court allowed a detective to testify that he...
The trial court did not commit plain error by admitting certain testimony that may have suggested that the defendant engaged in witness intimidation. Specifically a detective testified that during a photo lineup a victim appeared to not want to identify the suspect. The detective added that the...
The trial court did not commit plain error by admitting certain testimony that may have suggested that the defendant engaged in witness intimidation. Specifically a detective testified that during a photo lineup a victim appeared to not want to identify the suspect. The detective added that the...
In this sexual assault case although a nurse’s testimony was improperly admitted, the error did not rise to the level of plain error. The nurse interviewed and examined the victim. At trial the nurse testified that the victim’s exam “was consistent with someone reporting a sexual assault” solely...
In this murder case, the trial court did not abuse its discretion by allowing two forensic pathologists to testify to expert opinions regarding the amount of blood discovered in the defendant’s house. Essentially, the experts testified that the significant amount of blood at the scene suggested...
The trial court did not err by denying the defendant’s motion to suppress which asserted that the search warrant in question was issued based on an affidavit containing false and misleading information. The court concluded that although not all of the statements in the affidavit are “entirely...
In this first-degree murder case involving a shooting outside of the defendant’s home where the Court of Appeals opinion was reversed on other grounds, the court noted an error in the trial court’s jury instructions with respect to defense of habitation. Noting a problem in the current pattern...
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...
In this statutory rape case, the victim’s Honduran birth certificate was properly authenticated. To establish the victim’s age, the State introduced a copy of the victim’s Honduran birth certificate, obtained from her school file. That document showed her date of birth to be September 15, 2003...
In this statutory rape case, the court rejected the defendant’s argument that the trial court erred by admitting the victim’s Honduran birth certificate, asserted by the defendant to be inadmissible hearsay. To establish the victim’s age, the State introduced a copy of the victim’s Honduran...
In this child sexual assault case, the trial court did not abuse its discretion by denying the defendant’s request to present a rebuttal witness. Because the trial court permitted other testimony that established the same facts that the defendant sought from the rebuttal witness, the defendant...
The trial court did not err by denying the defendant’s motion to dismiss a charge of first-degree kidnapping which asserted that the State failed to present substantial evidence that the defendant did not release the victim in a safe place. The defendant held the victim at gunpoint and...
The court remanded for correction of two clerical errors. The first error was that the trial court inadvertently checked the box on the Judgment form indicating that it made no written findings because the sentence imposed was within the presumptive range but in fact the trial court sentenced...
An indictment charging the defendant with felony larceny was not defective. The indictment alleged that the victim was “Sears Roebuck and Company.” The defendant argued that although the indictment contains the word “company,” it does not identify the victim as a company or other corporate...
In this child sexual assault case, there was substantial independent evidence to support the trustworthiness of the defendant’s extrajudicial confession that he engaged in vaginal intercourse with the victim on at least three occasions and therefore the corpus delicti rule was satisfied. The...
Because the State failed to give notice of its intent to use aggravating sentencing factors as required by G.S. 20-179(a1)(1), the trial court committed reversible error by using those factors in determining the defendant’s sentencing level. The case involved an appeal for trial de novo in...
In a case involving a conviction for second-degree murder following a fatal motor vehicle accident, the trial court did not abuse its discretion by admitting evidence of the defendant’s past driving offenses. The State’s evidence showed that on 23 November 2016, the defendant was stopped for an...
In this case involving a conviction for second-degree murder following a fatal motor vehicle accident, the evidence was sufficient to establish malice. Evidence of the defendant’s prior traffic-related convictions are admissible to prove malice in a second-degree murder prosecution based on a...
In an assault inflicting serious bodily injury case involving the defendant’s assault on a transgender woman, A.R., the evidence was sufficient to establish that serious bodily injury occurred. A.R.’s injury required stitches, pain medication, time off from work, and modified duties once she...
In this child sexual assault case, trial court did not err by denying the defendant’s motion to dismiss two charges of attempted statutory sex offense of a child by an adult. On appeal, the defendant argued that there was insufficient evidence of his intent to engage in a sexual act with the...
In this child sexual assault case, the trial court did not err by denying the defendant’s motion to dismiss five statutory sexual offense charges based on a theory of aiding and abetting. The State’s theory was that the defendant encouraged the victim’s mother to engage in sexual activity with...
In a case involving a conviction for second-degree murder following a fatal motor vehicle accident, the indictment was sufficient. On appeal the defendant argued that the indictment only charged him with Class B1 second-degree murder, a charge for which he was acquitted, and not the Class B2...
In this drug case, the court held, over a dissent, that the trial judge improperly considered her personal knowledge of matters outside the record when sentencing the defendant and that a resentencing was required. The defendant asserted that during sentencing the trial court improperly...
The trial court did not err by holding the defendant in direct criminal contempt for statements he made during closing arguments in this pro se case. On appeal, the defendant argued that his actions were not willful and that willfulness must be considered in the context of his lack of legal...
The trial court did not err by accepting the defendant’s stipulation that a prior conviction for “No Operator’s License” was a Class 2 Misdemeanor. In making this stipulation, the defendant stipulated that the facts underlying his conviction justify that classification. The trial court was under...
In this drug case, the trial court erred by denying the defendant’s motion to suppress evidence obtained in a traffic stop. Sometime after 8:40 PM, an officer received a dispatch relating an anonymous report concerning a “suspicious white male,” with a “gold or silver vehicle” in the parking lot...
In this drug case, the trial court did not err by admitting a forensic laboratory report after the defendant stipulated to its admission. The defendant argued that the trial court erred by failing to engage in a colloquy with her to ensure that she personally waived her sixth amendment right to...
The trial court did not abuse its discretion when it revoked the defendant’s probation. The State presented sufficient evidence that the defendant willfully absconded by failing to report within 72 hours of his release from custody and thereafter avoiding supervision and making his whereabouts...
Finding that the trial court did not abuse its discretion by revoking the defendant’s probation, the court remanded for correction of a clerical error. Specifically, the trial court checked the wrong box on the judgment form indicating the basis for the probation revocation.
In this maintaining a dwelling case on remand from the state Supreme Court for reconsideration in light of State v. Rogers, __ N.C. __, 817 S.E.2d 150 (2018), the court held that the evidence was insufficient to support the conviction. The State’s evidence showed that the drugs were kept at the...
In this second-degree rape case, the trial court did not commit plain error by failing to instruct the jury that lack of consent was an element of rape of a physically helpless person. Because lack of consent is implied in law for this offense, the trial court was not required to instruct the...
In this second-degree rape case, the trial court erred by ordering lifetime SBM where the State did not meet its burden of proving that SBM was a reasonable Fourth Amendment search. The United States Supreme Court has held that SBM is a search. Therefore, before subjecting a defendant to SBM,...
In this second-degree rape case involving a victim who had consumed alcohol, the trial court did not abuse its discretion by refusing to allow testimony of defense expert, Dr. Wilkie Wilson, a neuropharmacologist. During voir dire, Wilson testified that one of his areas of expertise was alcohol...
In this case involving convictions of first-degree murder, attempted first-degree murder, and armed robbery, the trial court did not err by prohibiting a defense expert from testifying concerning the impact of specific leading questions asked by law enforcement officers during their interviews...
Considering the circumstances under which Miranda warnings are required when a member of the Armed Forces is questioned by a superior officer about involvement in the commission of a crime, the court concluded that the trial court’s order denying the defendant’s motion to suppress statements to...
The evidence was sufficient to support a conviction for felony assault inflicting serious bodily injury. On appeal the defendant challenged only the element of serious bodily injury. As a result of the assault, the victim suffered from difficulty swallowing, numerous lacerations, a concussion,...
The evidence was sufficient to support a conviction of second-degree rape. On appeal the defendant argued that there was insufficient evidence showing that the victim was physically helpless. The State presented evidence that the victim consumed sizable portions of alcohol over an extended...
Concluding that application of the stalking statute to the defendant violated his constitutional free speech rights, the court vacated the convictions. The defendant was convicted of four counts of felony stalking based primarily on the content of posts made to his Google Plus account. On appeal...
The evidence was sufficient to support a conviction for felony breaking or entering with intent to terrorize or injure. On appeal the defendant challenged only the element of intent to injure or terrorize. Here, the evidence shows that the defendant entered uninvited and did not announce himself...
In this drug case the trial court did not err by admitting a hearsay statement under the Rule 801(d)(E) co-conspirator exception. An undercover officer arranged a drug transaction with a target. When the officer arrived at the prearranged location, different individuals, including the defendant...
The trial court did not err by denying the defendant’s motion to suppress, which argued that officers improperly extended a traffic stop. Officers initiated a traffic stop of the vehicle for a passenger seatbelt violation. The defendant was in the passenger seat. That seat was leaned very far...
In this possession of a firearm by a felon case, the trial court did not err by allowing evidence of a handgun a police officer removed from the defendant’s waistband during a lawful frisk that occurred after a lawful stop. Police received an anonymous 911 call stating that an African-American...
The court rejected the defendant’s argument that the evidence was insufficient to support an instruction on actual possession of the firearm in question. Actual possession requires that a party have physical or personal custody of the item. The case arose out of a drug transaction between an...
(1) The evidence was sufficient to support a conviction for attempted sale or delivery of a counterfeit controlled substance. The charges arose out of a drug transaction that was prearranged by an undercover officer. The officer arranged the transaction with a target, but the defendant and other...
The evidence was sufficient to support a conviction for sexual offense of a 13, 14 or 15-year-old. On appeal the defendant argued that the evidence was insufficient as to penetration. At trial the prosecutor asked the victim “How far would you say he was able to get with -- did he actually go...
The evidence was sufficient to support convictions for first-and second-degree sexual exploitation of a minor. On appeal the defendant argued that a key photograph introduced at trial did not depict the victim engaged in “sexual activity.” The definition of “sexual activity” for purposes of both...
(1) The trial court did not err in its obtaining property by false pretenses instructions. The charge arose out of the defendant’s alleged fraud in connection with an insurance claim. The trial court instructed the jury that to find the defendant guilty it must find that he made a representation...
In this assault case, the trial court committed prejudicial error by failing to instruct the jury on self-defense. Aubrey Chapman and his friend Alan McGill attended a party. During the party, the defendant punched McGill in the face. Chapman saw the confrontation and hit the defendant. Security...
In this assault case, the trial court did not err by instructing the jury that it could consider the defendant’s alleged flight as evidence of guilt. The court began: “The probative value of flight evidence has been ‘consistently doubted’” in our legal system, and we note at the outset that we...
In this carrying a concealed handgun case, the trial court properly denied the defendant’s motion to suppress where the officer had reasonable suspicion to seize the defendant. While patrolling a high crime area, the officer saw the defendant and Ariel Peterson walking on a sidewalk. Aware of...
In a case where the defendant was found guilty of obtaining property by false pretenses and insurance fraud involving a claim regarding a stolen truck, although the trial court erred by admitting evidence of a truck later found in a river, the error did not rise to the level of plain error. The...
In this felony death by vehicle case the prosecutor did not improperly appeal to the jury’s passion and prejudice requiring the trial court to intervene ex mero motu. The prosecutor asserted that the jury “can send a message” with its verdict and told the jury that it was “the moral voice and...
Because no evidence was presented prior to or to support the trial court’s lifetime SBM order, the court vacated that order and remanded for proper analysis and determination under G.S. 14-208.40A.
There was sufficient evidence that a parent-child relationship existed between the defendant and the victim to sustain a conviction for sexual offense in a parental role. A parental role includes evidence of emotional trust, disciplinary authority, and supervisory responsibility, with the most...
In this felony death by vehicle case involving the presence of narcotics in an unknown quantity in the defendant’s blood, the evidence was sufficient to establish that the defendant was impaired. The State’s expert testified that Oxycodone and Tramadol were present in the defendant’s blood;...
The trial court erred by denying the defendant’s motion for appropriate relief alleging that the trial court lacked subject matter jurisdiction to enter judgment where the defendant was charged with a bill of information that did not include or attach a waiver of indictment. G.S. 15A-642 allows...
In this child sexual assault case, the court remanded for further findings with respect to the defendant’s speedy trial motion. Although the trial court was not obligated to consider the defendant’s pro se speedy trial motion while he was represented, because it did so, it erred by failing to...
In this child sexual assault case, the court rejected the defendant’s argument that the trial court erred by denying his motion for mistrial when an expert witness mentioned the defendant as “a person who had a history of criminality.” Dr. Elizabeth Witman, the director of SAFEchild Advocacy...
In this felony death by vehicle case, the prosecution did not incorrectly state the standard for impairment in jury argument. The defendant asserted that the prosecutor’s statements suggested that the jury could find the defendant guilty merely if impairing substances were in his blood. The...
Finding itself bound by its prior decision in this felony child abuse case, the Court of Appeals rejected the defendant’s argument that the trial court committed plain error by improperly instructing the jury on the definition of the term “sexual act.” The defendant was charged under G.S. 14-318...
The court held that even if the trial court erred under Blakely by finding the existence of an aggravating factor and sentencing the defendant in the aggravated range, any error was harmless. After the jury found the defendant guilty of two counts of common-law robbery the trial court...
In this case involving armed robbery and other convictions, the trial court did not err by denying the defendant’s motion to suppress evidence which asserted that the pre-trial identification was impermissibly suggestive. Three victims were robbed in a mall parking lot by three assailants. The...
(1) In this first-degree murder case, the trial court did not err by declining to give the defendant’s requested special jury instruction regarding potential bias of a State’s witness. Because the issue involves the trial court’s choice of language in jury instructions, the standard of review...
(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of disseminating obscene material to a minor. On appeal the defendant argued that there was insufficient evidence that the material was obscene. At trial the victim testified that the defendant showed her...
Although the State improperly circumvented district court jurisdiction by simultaneously obtaining a presentment and an indictment from a grand jury, the proper remedy is to remand the charges to district court, not dismissal. The defendant was issued citations for impaired driving and operating...
In this drug case, the court held—with one judge concurring in result only—that the trial court did not err by admitting evidence of the identification and weight of the controlled substances from a substitute analyst. Because Erica Lam, the forensic chemist who tested the substances was not...
An indictment charging statutory rape of a person who is 13, 14, or 15 years old was facially defective where it did not identify the victim by name, identifying her only as “Victim #1.” An indictment charging this crime must name the victim. The indictment need not include the victim’s full...
In this drug case, the trial court did not err by denying the defendant’s motion to suppress. After receiving a tip that the defendant was growing marijuana at his home, officers drove there for a knock and talk. They pulled into the driveway and parked in front of the defendant’s car, which was...
In a case where the defendant was convicted of first-degree murder, the trial court did not err by failing to submit an instruction on second-degree murder and/or voluntary manslaughter. The defendant argued that the evidence negated premeditation and deliberation. The court disagreed, finding...
In this drug case, the trial court did not err by denying the defendant’s motion to suppress evidence regarding in-court identifications on grounds that they were unreliable, tainted by an impermissibly suggestive DMV photograph. Detective Jurney conducted an undercover narcotics purchase from a...
The defendant’s sentence of life in prison with the possibility of parole for his conviction of felony murder when he was 16 years old is constitutional.
The defendant asserted that his sentence violates the Eighth Amendment. The court concluded that an as applied challenge is...
The trial court did not err by denying the defendant’s motion to dismiss a charge of first-degree murder. On appeal the defendant argued that the State failed to introduce sufficient evidence with respect to an unlawful killing and the defendant’s identity as the perpetrator.
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As conceded by the State, the trial court erred by ordering the defendant to enroll in SBM. The Static-99 risk assessment of “Moderate-Low” without additional findings by the trial court was insufficient to support the trial court’s conclusion that the defendant requires the highest level of...
The evidence was sufficient to support a conviction of attempting to take indecent liberties with a child. The defendant posted a Craigslist advertisement seeking female companionship. An adult police officer posing as a 14-year-old girl named Brittany responded to the ad. The two exchanged over...
(1) On remand from the state Supreme Court, the court rejected the defendant’s argument that the trial court erred by concluding that he was procedurally barred from reasserting in his MAR a dual representation conflict of interest ineffective assistance of counsel claim with respect to attorney...
The evidence was insufficient to support a conviction for a drug offense within 1000 feet of a child care center. Under G.S. 90-95(e)(8), a defendant is punished as a Class E felon if he commits certain drug offenses within 1000 feet of the boundary of real property used for a child care center...
In this possession of methamphetamine and felon in possession of a firearm case, the trial court did not err by instructing the jury that the defendant’s status as the driver of a stopped vehicle was sufficient to support an inference that he constructively possessed both methamphetamine and a...
In this first-degree murder case, the trial court did not err by admitting letters detailing the defendant’s outstanding debts. The defendant argued that the letters were not relevant. At the time of the victim’s death, she was considering calling off her engagement to the defendant because of...
In this child sexual assault case, the trial court did not err by admitting 404(b) evidence. In 2016, the victim reported to law enforcement that the defendant sexually assaulted her many times when she was a child, including a final incident on or about May 2004 when she was 12 years old....
In this first-degree murder case, where the victim was found in a bathtub with a hair dryer and cause of death was an issue, the trial court did not err by admitting expert opinions.
The defendant asserted that expert Michael Kale was not qualified to offer expert testimony that a...
In this drug case, the trial court erred but did not commit plain error by allowing the State’s expert to testify that the pills were hydrocodone. With no objection from the defendant at trial, the expert testified that she performed a chemical analysis on a single tablet and found that it...
In this drug trafficking case, the trial court did not err by denying the defendant’s motion to dismiss all charges due to the State’s failure to preserve and disclose a blank audio recording of a conversation between an accomplice and the defendant. After the accomplice Stanley was discovered...
The court rejected the defendant’s argument that the trial court erred by denying his motion for sanctions for failure to preserve and disclose a blank recording of an arranged call between an informant and the defendant. Under the discovery statutes, officer Moody should have documented his...
In this case involving a conviction for conspiracy to harass a juror, the trial court did not err by allowing the juror-witnesses to testify, over objection, about a fraternity fight that formed the basis for the criminal trial in which the defendant was accused of harassing jurors. The criminal...
In this case involving a conviction for conspiracy to harass a juror, the trial court did not err by allowing the juror-witnesses to testify, over objection, about a fraternity fight that formed the basis for the criminal trial in which the defendant was accused of harassing jurors. The criminal...
In this drug trafficking case, the court held, over a dissent, that the evidence was insufficient to establish that the defendant knowingly possessed cocaine found in a black box in a wooded area approximately 18 hours after the defendant allegedly produced the same box in exchange for his...
In this felony speeding to elude case, the State presented sufficient evidence that the defendant caused property damage in excess of $1000, one of the elements of the charge. At trial, an officer testified that the value of damages to a guardrail, vehicle, and house and shed exceeded $1000....
In this DWI case, the superior court properly denied the defendant’s motion to dismiss the indictment for lack of jurisdiction. The defendant asserted that because the State failed to dismiss the citation charging the offense in district court, that charge remained valid and pending in district...
In this DWI case, the trial court did not err by denying the defendant’s motion to suppress intoxilyzer results. The defendant argued that the trial court improperly concluded that the officer was not required, under G.S. 20-139.1(b5), to re-advise him of his implied consent rights before...
In a case where the defendant was found guilty of second-degree murder, assault with a deadly weapon, and discharging a firearm into an occupied dwelling, the trial court committed prejudicial error by failing to include no duty to retreat and stand your ground provisions in the jury instruction...
The trial court did not err by sentencing the defendant as a Level Two offender after finding the existence of a grossly aggravating factor based on upon his prior DWI conviction. The defendant was convicted in superior court of DWI on 15 September 2016. He appealed that conviction on 26...
In this DWI case, an officer did not unduly prolong a traffic stop. While on patrol, officers ran a vehicle’s tag and learned that the registered owner was a male with a suspended license. An officer stopped the vehicle based on the suspicion that it was being driven without a valid license. The...
In this DWI case, the trial court properly denied the defendant’s motion to suppress evidence discovered after a roadside breath test. Specifically, the defendant asserted that the results of roadside sobriety tests and intoxilyzer test should be suppressed as fruit of the poisonous tree of an...
The trial court did not err by failing to intervene ex mero motu during the State’s closing argument. At issue was the prosecutor’s reference to the defendant’s gang ties. Here, when the defendant called two codefendants as witnesses, both testified that they were gang members and one admitted...
As a matter of legislative intent, the court held that a defendant may not be convicted for both armed robbery and possession of stolen goods taken during the robbery.
Because the State failed to meet its burden of proving that the defendant’s 2012 possession of drug paraphernalia conviction was related to a drug other than marijuana, the court remanded for resentencing. Since 2014, state law has distinguished possession of marijuana paraphernalia, a Class 3...
The trial court did not err by denying the defendant’s motion to dismiss a charge of resisting an officer. The defendant argued that the State presented insufficient evidence that the officer was discharging a duty of his office. Here, the officer was discharging a duty falling within the scope...
In this child sex offense case, because the record was insufficient to allow review of the defendant’s claim that he received ineffective assistance of counsel at trial, the court dismissed the appeal without prejudice to the defendant’s right to pursue the claim in a motion for appropriate...
The trial court did not err by denying the defendant’s motion to dismiss a charge of second-degree trespass. On appeal the defendant argued that she had implied consent to be on the premises of a DMV office. After the defendant raised her voice and began swearing at a DMV employee, an officer...
In this embezzlement case, the trial court did not commit plain error by allowing a detective to testify regarding the defendant’s post-arrest silence. The defendant opened the door to the testimony by pursuing a line of inquiry on cross-examination centering around the detective’s attempts to...
By failing to object at trial to a fatal variance between a second-degree trespass indictment and the evidence at trial, the defendant failed to preserve the issue. The court declined to invoke Rule 2 to address the issue on the merits.
In this case involving armed robbery and other charges, the victim’s statements to a responding officer were nontestimonial. When officer Rigsby arrived at the victim’s home to investigate the robbery call, the victim was shaken up, fumbling over his words, and speaking so fast that it sounded...
In this appeal by the Mecklenburg County Sheriff from orders of the Superior Court ordering the Sheriff to release two individuals from his custody, the court vacated and remanded to the trial court to dismiss the habeas corpus petitions for lack of subject matter jurisdiction. Defendant Lopez...
In this case involving drug charges and a charge of driving without an operator’s license, the court declined to address the defendant’s argument that the officer lacked reasonable suspicion to prolong the traffic stop and search the defendant, finding that the search was justified as a search...
An embezzlement indictment was not fatally defective. The indictment alleged that the defendant:
unlawfully, willfully and feloniously did embezzle three thousand nine hundred fifty seven dollars and eighty one cents ($3,957.81) in good and lawful United States...
Because officers had permission from an occupant to enter a home where incriminating evidence was discovered, the subsequent search of the home was valid. Officers responded to a report of domestic violence at a home the defendant shared with his girlfriend Kristy Fink. A 911 call had reported...
The indictment properly charged resisting a public officer. On appeal the defendant argued that the indictment was invalid because it failed to sufficiently allege the officer’s public office. The indictment alleged that the defendant “did resist, delay and obstruct Agent B.L. Wall, a public...
The trial court properly denied the defendant’s motion to suppress a victim’s identification of the defendant as the perpetrator. The defendant was charged with armed robbery of a Game Stop store and threatening use of a firearm against a store employee, Cintron, during the robbery. Although...
In this embezzlement case, the trial court did not commit plain error with respect to the jury instructions. The defendant argued that the trial court committed plain error by instructing the jury on an alternative theory of guilt not supported by the evidence; specifically, by including as an...
The trial court did not err by denying the defendant’s motion to dismiss charges of possession of stolen goods (a debit card) and possession of marijuana. The State presented substantial evidence establishing constructive possession of both the items. The items were found in close proximity to...
The trial court did not commit plain error in its jury instructions on second-degree trespass. The defendant was indicted for remaining on the premises after having been notified not to remain there by officer Wall, “a person in charge of the premises.” The trial court instructed the jury that...
(1) The trial court properly denied the defendant’s motion to dismiss a charge of armed robbery where the evidence showed that he acted in concert with the perpetrator. Although the defendant was not identified as being at the crime scene, it would have been reasonable for the jury to infer that...
In this drug trafficking case, the court rejected the defendant’s argument that the trial court erred by failing to intervene ex mero motu during the State’s closing argument. During those arguments, the prosecutor, without objection, made references to the defendant’s right to a jury trial and...
The trial court committed plain error with respect to its obtaining property by false pretenses instructions. The case was before the court on certification from the state Supreme Court for consideration of whether the trial court committed plain error by failing to instruct the jury that it...
In this habitual felon common-law robbery case, the trial court did not err by denying the defendant’s motions to recuse the entire Henderson County District Attorney’s Office. The defendant’s recusal motions asserted that ADA Bender previously represented the defendant in one of the felonies...
The trial court did not err by dismissing an empaneled juror. During trial the State moved for the trial court to inquire into the competency of Juror 7 to render a fair and impartial verdict. The trial court conducted a hearing in which a bailiff testified that the juror asked the bailiff “if...
In this assault inflicting serious bodily injury case, no plain error occurred with respect to the trial court’s jury instructions defining “serious bodily injury” as to victim E.D. The court noted that while it prefers trial courts to use the Pattern Jury Instructions, an instruction is...
In this child sexual assault case, the court rejected the defendant’s argument that the trial court’s consecutive sentences, totaling a minimum of 138 years, violated his constitutional right to be free from cruel and unusual punishment under the Eighth Amendment. The court began by finding that...
In this gang-related case involving charges of first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, attempted first-degree murder, and discharging a weapon into an occupied dwelling, although the trial court erred by failing to instruct the jury on...
In this drug case, the trial court rejected the defendant’s argument that the evidence was insufficient to support an acting in concert instruction. Reviewing the evidence, the court rejected the defendant’s argument that it showed only mere presence.
The trial court did not err by denying the defendant’s motion to dismiss 33 counts of statutory rape, two counts of statutory sex offense, and 17 counts of indecent liberties as to victim F.H. At trial, the victim testified to sexual contact during her relationship with the defendant; she stated...
An indictment charging assault with a deadly weapon inflicting serious injury on victim E.D. was not defective. The defendant asserted that the indictment was defective because it failed to include the word “assault” in its description of the offense. The court concluded that while the...
The trial court erred by allowing the State to amend a second-degree kidnapping indictment. The indictment alleged that the defendant restrained the victim for the purpose of facilitating the felony of assault inflicting serious injury. However, that offense is a misdemeanor. During trial, the...
In this gang-related case involving two shootings and charges of first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, attempted first-degree murder, and discharging a weapon into an occupied dwelling, the trial court did not err by denying the...
In this felon in possession of a firearm case, the court held that although some of the prosecutor’s statements were improper, they were not so improper as to deprive the defendant of a fundamentally fair trial.
The court first determined that, in context, the prosecutor’s use of the...
(1) The trial court did not err by denying the defendant’s motion for post-conviction DNA testing without appointing counsel. The statute requires appointment of counsel only on a showing that the DNA testing may be material to the defendant’s claim of wrongful conviction. The burden of...
The trial court did not abuse its discretion by partially sustaining the State’s objection to expert testimony by a defense witness regarding the factors affecting the reliability of eyewitness identification. UNC-Charlotte Prof. Dr. Van Wallendael was qualified and accepted by the court as an...
In this case involving convictions of felony murder, discharging a firearm into an occupied vehicle, and possession of marijuana with intent to sell, the trial court did not err by admitting certain photographs at trial. Two of the photographs (“Gun Photos”) were of firearms; the photos were...
In this assault case, the trial court did not abuse its discretion by allowing portions of the defendant’s telephone call, made from jail, to his grandmother into evidence but refusing to allow the defendant to offer other portions from the same call into evidence. The defendant argued that the...
In a bond forfeiture proceeding, the trial court did not err by taking judicial notice of the file as evidence that the defendant was served with the order of arrest. A trial court may take judicial notice of earlier proceedings in the same case, including matters in the file not offered into...
The evidence was sufficient to support the defendant’s convictions for misdemeanor child abuse. The charges asserted that the defendant used heroin in the presence of a child. The court rejected the defendant’s argument that the State was required to prove, through chemical analysis, that a...
The court declined to address the defendant’s claim that he received ineffective assistance of counsel when his lawyer failed to object to and agreed to the admission of a hearsay statement and failed to request a jury instruction on the ultimate user exception to the Control Substances Act. The...
The evidence was sufficient to sustain the defendant’s convictions for embezzlement under G.S. 14-90. The defendant, a director of accounting for a Foundation, transferred over $400,000 from the Foundation’s account into her personal account. The defendant asserted that she was not entrusted...
In this second-degree murder and armed robbery case, the court rejected the defendant’s argument that trial counsel was ineffective by failing to ensure the jury knew that the State’s key witness, Damon Bell, could have been but was not charged with first-degree murder in the case. The defendant...
The court rejected the defendant’s argument that the findings and conclusions made by the trial court from the bench with respect to his motions to suppress are insufficient because the trial court expressly ordered the State to prepare written orders on the motions but the State failed to do so...
The trial court did not err by failing to instruct the jury on an exemption to a drug trafficking charge. The defendant argued that he was exempt from prosecution as an “ultimate user” pursuant to G.S. 90-101(c). The statute defines an ultimate user as a person who lawfully possesses a...
In a case where the trial court found that the juvenile’s likelihood of rehabilitation was uncertain and sentenced him to life in prison without parole, the court vacated and remanded for the defendant to be resentenced to life with the possibility of parole. The defendant was convicted of two...
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...
Citing prior case law, the court held that because the trial court failed to conduct a hearing to determine whether it would be constitutional to subject the defendant to SBM upon his release from a prison sentence for rape, the trial court’s order enrolling the defendant in SMB for life must be...
In this first-degree murder case, the trial court did not abuse its discretion under Rule 403 by admitting the victim’s skeletal remains, specifically her skull, ribs, and femur. The court considered each set of bones, starting with the skull. It noted that admission of a homicide victim’s skull...
(1) In this non-capital first-degree murder case where the defendant was convicted of murdering a former girlfriend Sellars, the trial court did not err by admitting 404(b) testimony from the defendant’s former girlfriend Crisp and former wife Lewis about assaults that the defendant committed on...
In this first-degree murder case, the trial did not err by admitting, under Rule 803(3), a handwritten document made by the victim that contained a list of things that the victim was going to tell the defendant. The trial court properly determined that the document showed the victim’s state of...
In this 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, although the trial court erred by preventing the...
In this non-capital first-degree murder case, the trial court did not abuse its discretion by preventing the defendant from rehabilitating a juror. During jury selection, the State questioned prospective juror Terrance Copling, who said he was familiar with the defendant’s family, did not know...
In this first-degree felony-murder and discharging a weapon into an occupied dwelling case, the trial court did not err by denying the defendant’s motion to dismiss the charges on grounds that there was insufficient evidence establishing that the defendant was the perpetrator. Among other things...
The trial court did not err by denying the defendant’s motion to dismiss a charge of first-degree rape. Because the victim could not remember the incident, she was unable to testify that she had been raped or that the defendant was the perpetrator. The evidence showed that while out with friends...
Although the trial court properly gave a self-defense instruction in this shooting into an occupied vehicle and injury to personal property case, it erred by failing to give a no duty to retreat instruction. Viewed in the light most favorable to the defendant, the evidence showed that the...
In a case arising out of false information submitted by the defendant in connection with his work as a bail bondsman, and involving charges of, among other things, unlawful access of a government computer and obtaining property by false pretenses, the defendant did not make out a prima facie...
The court vacated the trial court’s order requiring lifetime SBM, concluding that the State cannot establish, at this time, that the defendant’s submission to SBM will constitute a reasonable fourth amendment search when the defendant is eventually released from prison. After the defendant...
In this case in which the defendant was convicted of drug trafficking and related charges, the court held that although the trial court erred by finding that a vehicle was within the curtilage of the defendant’s residence, it properly found that officers had probable cause to search the vehicle...
The evidence was sufficient to convict the defendant of unlawfully accessing a government computer in violation of G.S. 14-454.1. The case arose out of false information submitted by the defendant in connection with his work as a bail bondsman. On appeal the defendant first argued that the...
The evidence was insufficient to support the defendant’s conviction of obtaining property by false pretenses. The case arose out of false information submitted by the defendant in connection with his work as a bail bondsman. The indictment alleged that the thing of value obtained was a...
The State presented sufficient evidence the defendant violated G.S. 58-71-165. The case arose out of false information submitted by the defendant in connection with his work as a bail bondsman. On appeal the defendant argued that information was missing from his reports due to clerical errors...
The court rejected the defendant’s argument that the trial court lacked subject matter jurisdiction over a misdemeanor stalking charge. Although the defendant argued that there was no evidence in the record of a presentment, the amended record shows that a presentment was issued by the grand...
Although the trial court erred by ordering the defendant to pay restitution for pecuniary losses arising from his alleged perpetration of charges in three indictments dismissed by the State pursuant to a plea agreement, the plea agreement need not be set aside. The defendant asserted that...
The trial court improperly ordered the defendant to pay restitution for pecuniary losses arising from his alleged perpetration of charges in three indictments dismissed by the State pursuant to a plea agreement. The defendant appealed judgments entered upon his guilty pleas to seven counts of...
In this child sexual assault case, the trial court did not err by finding that the defendant’s proffered testimony was not relevant. The defendant was charged with committing sexual acts on his daughter Sandy while home from the military on compassionate leave. At trial, the defendant attempted...
Although the trial court erred by admitting into evidence in this stalking case approximately 28 photographs of firearms, ammunition, and surveillance equipment found throughout the defendant’s home during the execution of a search warrant, the error did not amount to prejudicial error....
In this case where the defendant was convicted of stalking victim Lorrie, with whom the defendant had a dating relationship, the trial court did not commit plain error by introducing 404(b) evidence from Holly, the defendant’s ex-girlfriend. The defendant argued that the trial court erred in...
In this stalking case, the trial court did not abuse its discretion by admitting into evidence Domestic Violence Protective Orders (DVPOs) obtained by the victim against the defendant. The defendant asserted that the findings of fact in the DVPOs unfairly prejudiced him and confused the jury....
The trial court properly denied the defendant’s motion to suppress heroin discovered following a search of the defendant during a traffic stop. A tactical narcotics officer noticed a Lincoln sedan weaving in and out of heavy traffic at high speeds, nearly causing multiple collisions. The vehicle...
The evidence was sufficient to sustain the defendant’s convictions for sex offense by a substitute parent. The case involved allegations of digital penetration. On appeal the defendant argued that the evidence was insufficient to establish that he penetrated the victim’s genitals. The only...
In this assault case, the court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss the charges due to the insufficiency of the evidence. The defendant asserted that the State’s own evidence showed that the defendant acted in self-defense after he was...
In a case in which the court determined that the defendant received ineffective assistance of appellate counsel, it considered whether the officers’ mistake of fact regarding a basis for a traffic stop was reasonable and concluded that it was not. Having found that appellate counsel’s...
In this assault case, no evidence was adduced at trial or sentencing to support the trial court’s restitution award of $1,962.80.
A defendant may not be convicted of assault with a deadly weapon under G.S. 14-32 and assault on a child under G.S. 14-33 based on the same incident. G.S. 14-33 states that a defendant shall be guilty of assault on a child unless another statue provides harsher punishment for the same conduct....
The trial court did not err by imposing a sentence of life imprisonment without parole on the juvenile defendant. In 2001 the defendant was tried capitally and convicted of first-degree murder, first-degree kidnapping and burning of personal property. The jury recommended a sentence of life...
Because the State presented no evidence that the defendant made fraudulent representations in support of an insurance claim to The Hartford Insurance Company as alleged by the indictment, the trial court erred by denying the defendant’s motion to dismiss this charge. The evidence at trial showed...
Following State v. Grady, __ N.C. App. __, __ S.E.2d __ (May 15, 2018), the court held, over a dissent, that absent any evidence that SBM is effective to protect the public from sex offenders, the trial court erred by imposing SBM for 30 years. The defendant proffered an Alford plea to...
In a case where the defendant was convicted of interfering with an electronic monitoring device, the court rejected the defendant’s argument that the trial court committed plain error by admitting hearsay evidence regarding the ankle monitor in question. The defendant was subjected to electronic...
(1) The trial court did not err by allowing the prosecutor to cross-examine defendant Perry regarding his post-arrest, pre-Miranda silence. Defendants Perry and Powell appealed from judgments entered upon jury verdicts finding them guilty of offenses in connection with a shooting. The defendants...
In a case in which the court determined that the defendant received ineffective assistance of appellate counsel, the court considered whether there was reasonable suspicion for the vehicle stop and found there was none. Having found that appellate counsel’s performance was deficient, the court...
The court rejected the defendant’s argument that the search of the premises was unreasonable. The defendant argued that because the officers deliberately waited until he vacated the premises before breaking open the door without knocking and announcing their presence, they violated the statutory...
There was insufficient evidence to support an adjudication of delinquency resisting a public officer. A school resource officer testified that he saw the juvenile throw a chair in the cafeteria. After throwing the chair, the juvenile ran out of the cafeteria. The officer followed and without...
In this murder and armed robbery case, the trial court did not abuse its discretion by denying defense counsel’s proffered jury instructions. The additional jury instructions requested by the defense all relate to the defendant’s mental and/or emotional condition at the time of the murder and...
In this drug trafficking case, a warrant to search the defendant’s person and vehicle was supported by probable cause. After a three-month investigation prompted by a confidential informant’s tip that the defendant was dealing heroin, Detective Cole obtained a warrant to search the defendant’s...
Officers did not unreasonably seize the defendant in connection with execution of the search warrant. The defendant asserted that his seizure was unreasonable because it occurred two miles away from the residence in question. The court noted in part that the warrant authorized a search of both...
In this drug trafficking case, the defendant’s Confrontation Clause rights were not violated when the trial court admitted statements made by a non-testifying confidential informant. The statements were not admitted for the truth of the matter asserted but rather to explain subsequent steps...
The trial court did not err by denying the defendant’s motion to suppress incriminating statements made to police during a custodial interview. The defendant asserted that the statements were made after he invoked his right to counsel. Before the custodial interview, the defendant was advised of...
The court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss a crime against nature charge. The defendant asserted that the State failed to offer substantial evidence that the offense was committed in a public place. The court noted that although ...
The State conceded and the Court of Appeals held that the trial court erred by entering judgment for eight counts of felony larceny where all of the property was stolen in a single transaction. The court thus vacated seven of the convictions.
The trial court did not err in concluding that the defendant forfeited his right to counsel. When the case came on for trial, the defendant was represented by his 3rd attorney, Smith, who moved to withdraw citing irreconcilable differences with the defendant. The court of appeals...
The evidence was sufficient to support the defendant’s conviction of trafficking in cocaine by possession. At issue was whether the defendant constructively possessed the cocaine, found in the drawer of a bedroom dresser. Among other things, the defendant lived with Cunningham at the home. The...
The court rejected the defendant’s argument that there was a fatal variance between the indictment for misdemeanor larceny and the evidence at trial. Specifically, the defendant argued that there was a fatal variance between the allegation that he stole a checkbook from Glenn Cox and the...
In this drug case, the court rejected the defendant’s argument that the trial court violated his Confrontation Clause rights when it permitted him to stipulate to the admission of forensic laboratory reports without first addressing him personally and ensuring that he understood the stipulation...
A habitual felon indictment was fatally defective. Citing precedent, the court noted that a habitual felon indictment must state two dates for each prior felony conviction: the date that the defendant committed the felony and the date that the defendant was convicted of the felony. These dates...
In this drug trafficking case, the court rejected the defendant’s argument that the trial court abused its discretion under Rule 403 by admitting statements made by a confidential informant about the defendant’s distribution of drugs to a law enforcement officer for the limited purpose of...
In this voluntary manslaughter case, the trial court committed prejudicial error by denying the defendant’s request for a jury instruction on defense of habitation. The trial court denied the defendant’s requested instruction, finding no evidence that the victim was “trying to break in.”...
In this rape and sex offense case, the court rejected the defendant’s argument that the trial court committed plain error by instructing the jury that it could find that the victim suffered serious personal injury in the form of mental injury; even if error occurred, it had no probable impact on...
(1) The court rejected the defendant’s argument that the trial court considered inadmissible hearsay in finding him in criminal contempt, reasoning that the evidence was admitted not for the truth of the matter asserted but rather for corroboration. At the show cause hearing the trial court...
The court remanded to the trial court to correct a clerical error in a written order. After the jury convicted the defendant of first-degree felony-murder, armed robbery, and felony possession of a firearm, the trial court rendered an oral ruling arresting judgment on the armed robbery...
In this indecent liberties with a child case, the court rejected the defendant’s argument that a nurse’s opinion testimony improperly vouched for the victim’s credibility. In the relevant portion of her testimony, the nurse stated that erythema that she observed on the victim’s privates was...
In this assault case tried as a bench trial, the court rejected the defendant’s argument that he received ineffective assistance of counsel (IAC) when his lawyer failed to assert and argue self-defense. The defendant filed a MAR with his direct appeal, asserting the IAC claim. Finding that it...
In this indecent liberties with a child case, although the trial court erred by failing to conduct the jury to the courtroom as required by G.S. 15A-1233 in response to its request to review certain evidence, the error was not prejudicial and the defendant failed to show an error of...
(1) In this indecent liberties with a child case, the court rejected the defendant’s argument that the trial court committed plain error by allowing the victim’s mother to vouch for the victim’s credibility. An individual informed the victim’s mother that the victim said that the defendant had...
In this felony counterfeit trademark goods case, the court held that a search warrant was supported by probable cause. A Special Agent obtained a search warrant to search the residence and vehicles at 13606 Coram Place in Charlotte, North Carolina. The affidavit indicated that the Agent had 26...
In this possession of a firearm by a felon case, the court held that the affidavit contained insufficient details to support issuance of the search warrant. When officers went to the defendant’s home to conduct a knock and talk, the defendant’s brother answered the door and invited them in. An...
In this drug case, the court held that the affidavit provided sufficient probable cause for a search of the residence in question. The affidavit indicated that after the officer received an anonymous tip that drugs were being sold at the residence, he conducted a “refuse investigation” at the...
(1) The trial court did not err by denying the defendant’s motion to dismiss a felony stalking charge. Felonious stalking occurs when the defendant commits the offense while a court order is in effect prohibiting the conduct at issue. The State presented evidence that at the time of the conduct...
(1) The trial court properly denied the defendant’s motion for post-conviction DNA testing. The defendant, who pleaded guilty to multiple sexual assaults, filed a pro se motion seeking DNA testing of evidence he alleged was collected by law enforcement, including vials of blood and saliva, a bag...
(1) In this drug trafficking case, the court held that the fact that the defendant’s truck crossed over a double yellow line justified the stop. The officer saw the defendant’s vehicle cross the center line of the road by about 1 inch. The court stated:
[T]here is a “bright line”...
Probable cause supported the defendant’s second arrest for impaired driving. After the defendant’s first arrest for DWI, he signed a written promise to appear and was released. Thirty minutes later Officer Hall saw the defendant in the driver’s seat of his vehicle at a gas station, with the...
Finding that the trial court properly revoked the defendant’s probation, the court affirmed but remanded for correction of a clerical error. While on probation for another offense, the defendant was convicted of possession of drug paraphernalia. A probation officer filed a violation report...
The trial court erred by denying the defendant’s motion for post-conviction DNA testing and discovery pursuant to G.S. 15A-269. The defendant was tried for burglary, kidnapping, assault by strangulation, rape, sex offense, and attaining habitual felon status. Evidence at trial included, among...
The traffic stop at issue was not unduly extended. The defendant, a passenger in the stopped vehicle, argued that officers extended, without reasonable suspicion, the traffic stop after issuing the driver a warning citation. The stopping officer had extensive training in drug interdiction,...
In this fleeing to elude, resisting an officer and child abuse case, the trial court erred by concluding that a seizure occurred when a detective activated his blue lights. After receiving complaints about drug activity at 155 John David Grady Road, officers conducted surveillance of the area....
The knock and talk conducted by officers in this drug case violated the fourth amendment. After a confidential informant notified officers that he had purchased heroin from a person at an apartment located at 1013 Simmons Street, officers conducted three controlled drug buys at the apartment. On...
In this case involving a defendant who was 15 years old at the time of his crimes, and as conceded by the State, the trial court failed to make sufficient findings to support two sentences of life without parole. On appeal the defendant argued that although the trial court listed each of the...
In this second-degree murder vehicle accident and felony speeding to elude case, the trial court did not err by excluding, under Rule 401, the defendant’s testimony regarding his medical diagnoses. At trial, the defendant attempted to testify to his cognitive impairments and behavioral problems...
In this case involving a gang-related home invasion and murder, the trial court did not commit plain error by admitting rap lyrics found in a notebook in the defendant’s room. The lyrics, which were written before the killing, described someone “kick[ing] in the door” and “spraying” bullets with...
In this drug case, the trial court did not commit plain error by admitting the expert opinion of a forensic chemist. On appeal, the defendant argued that the expert’s testimony failed to demonstrate that the methods she used were reliable under the Rule 702. Specifically, he argued that the...
(1) In this case involving a gang-related home invasion and murder, the court remanded to the trial court on the issue of whether the defendant’s waiver of his right to counsel was voluntary. Officers interrogated the 15-year-old defendant four times over an eight hour period. Although he...
The evidence was sufficient to support a charge of conspiracy to commit armed robbery. On appeal, the defendant argued that there was insufficient evidence of an agreement to commit the robbery. Here, the victim identified the defendant and others as the individuals who robbed him. Additionally...
(1) In this robbery case, the indictment was not fatally defective for misspelling the defendant’s middle name. The indictment incorrectly alleged the defendant’s middle name as “Rashawn.” His actual middle name is “Rashaun.” A minor misspelling of a defendant’s name does not constitute a fatal...
In the context of deciding whether a manifest injustice existed that would warrant the court’s invocation of Rule 2 to consider on appeal an issue that was otherwise waived in this juvenile delinquency case, the court determined that sufficient evidence supported a delinquency adjudication on...
In this case, involving habitual impaired driving, driving while license revoked, and reckless driving, the corpus delicti rule was satisfied. The defendant argued that no independent evidence corroborated his admission to a trooper that he was the driver of the vehicle. The court disagreed,...
The trial court erred by denying the defendant’s motion to dismiss in this impaired driving case. Responding to a report of a motor vehicle accident, officers found a Jeep Cherokee on the side of the road. The vehicle’s right side panel was damaged and the officer saw approximately 100 feet of...
In this robbery case, the defendant’s due process rights were not violated. The defendant asserted that a due process violation occurred when an accomplice was compelled to appear at trial as a witness for the State. Specifically, the defendant asserted that the prosecutor improperly coerced the...
In this burning case, the trial court erred by instructing the jury on flight. Here, the evidence raises no more than suspicion and conjecture that the defendant fled the scene. Moreover, there is no evidence that the defendant took steps to avoid apprehension. The error however was not...
(1) The trial court committed plain error with respect to its jury instructions on obtaining property by false pretenses; the instructions allowed the jury to convict the defendant of a theory not alleged in the indictment. The indictment alleged that the false pretense at issue was the filing a...
The due process clause of the 14th Amendment requires that an applicant be afforded an opportunity for an evidentiary hearing to contest the denial of his application for renewal of a Concealed Handgun Permit pursuant to G.S. 14-415.12(a)(3). Daniel DeBruhl, who had maintained a...
(1) The court held that it had both jurisdiction and authority to decide whether Anders-type review should be prohibited, allowed, or required in appeals from G.S. 15A-270.1. Exercising this discretionary authority, the court held that Anders procedures apply to appeals...
In this DWI case the trial court did not abuse its discretion by admitting an officer’s expert testimony that the defendant was under the influence of a central nervous system depressant. On appeal the defendant argued that the State failed to lay a sufficient foundation under Rule 702 to...
In this homicide case, the trial court did not err by excluding the expert opinion testimony of a forensic psychologist about the phenomenon of “fight or flight.” Citing the North Carolina Supreme Court’s McGrady decision the court noted that the expert did not possess any medical or...
In this child sexual assault case, the trial court did not err by admitting hearsay statements of the victim. At issue were several statements by the child victim. In all of them, the victim said some version of “daddy put his weiner in my coochie.”
First, the trial court admitted the...
In a case involving charges of assault on a law enforcement officer, the trial court did not err by allowing the State to present evidence that an internal police department investigation of the involved officers resulted in no disciplinary actions or demotions. The defendant asserted that this...
The trial court did not err by denying the defendant’s motion to dismiss a DWI charge, which alleged that the defendant was under the influence of alprazolam. The evidence was sufficient where it showed: the defendant drove her vehicle in the public drive-through area of a restaurant where she...
In this child sexual assault case, the trial court erred by denying the defendant’s motion to dismiss charges of statutory sexual offense and indecent liberties with a child where the State failed to satisfy the corpus delecti rule. Here, the only substantive evidence was the defendant’s...
No prejudicial error occurred with respect to the trial court’s self-defense instructions. With respect to an assault with a deadly weapon with intent to kill charge, the defendant raised the statutory justifications of protection of his motor vehicle and self-defense. The trial court found that...
Where there was evidence that the defendant was the aggressor, the trial court did not err by instructing the jury on the aggressor doctrine as it relates to self-defense. The court noted that based on the defendant’s own testimony regarding the incident, it was possible for the jury to infer...
In this homicide case there was insufficient evidence to support restitution in the amount of $3,360.00 in funeral expenses to the victim’s family. No documentary or testimonial evidence supported the amount of restitution ordered. The record contains only the restitution worksheet, which is...
The trial court properly declared a mistrial for manifest necessity in this felony assault case. After the State rested, the trial court expressed concern that one of the jurors would be unavailable due to his wife’s upcoming heart procedure. The trial court expressed “no confidence” and “...
In this child sexual assault case, the trial court did not abuse its discretion by failing to sua sponte declare a mistrial. The court rejected the defendant’s argument that a mistrial was required by certain behavior of the victim’s father. The defendant had pointed to several instances of...
The trial court did not impermissibly express an opinion on the evidence in violation of G.S. 15A-1222 by denying the defendant’s motion to dismiss in the presence of the jury. At the close of the State’s evidence and outside the presence of the jury, the defendant made a motion to dismiss the...
In this child sexual assault case, the trial court did not abuse its discretion by allowing Kelli Wood, an expert in clinical social work specializing in child sexual abuse cases, to testify that it is not uncommon for children to delay disclosure of sexual abuse and to testify to possible...
In this impaired driving case, an officer’s observation of a single instance of a vehicle crossing the double yellow centerline in violation of state motor vehicle law provided reasonable suspicion to support the traffic stop. While traveling southbound on Highway 32, NC Highway Patrol Trooper...
At a suppression hearing, the trial court may consider testimony from an officer about a vehicle stop that includes material information not contained in the officer’s contemporaneous reports. On the date of the traffic stop, Trooper Myers—the stopping officer--made handwritten notes in an...
The court vacated the trial court’s order recusing the District Attorney and all staff of that office from further prosecuting the defendant and five unnamed co-defendants. In 2013, the defendant was indicted for electronic sweepstakes offenses. Those charges resulted in a mistrial. In 2015, the...
Considering the merits of the defendant’s ineffective assistance of counsel claim on direct appeal from his conviction of felony assault, the court held that the defendant did not receive ineffective assistance of counsel when trial counsel consented to a mistrial at the first trial. Analyzing...
Finding the record in this child sexual assault case insufficient to rule on the defendant’s ineffective assistance of counsel claim, the court denied the claim without prejudice to the defendant’s right to assert it in a MAR proceeding. The defendant argued that he received ineffective...
(1) On an appeal from an adverse ruling on the defendant’s motion for appropriate relief (MAR) in this murder case, the court held that because the defendant’s attorney made an objectively reasonable determination that the defendant’s uncle would qualify as his “guardian” under G.S. 7B-2101(b)...
On an appeal from an adverse ruling on the defendant’s motion for appropriate relief (MAR) in this murder case, the court held that because the defendant’s attorney made an objectively reasonable determination that the defendant’s uncle would qualify as his “guardian” under G.S. 7B-2101(b) and...
In this possession of a stolen motor vehicle case, the trial court’s jury instruction did not contain an incorrect statement of law regarding the element of possession. The evidence tended to show that an officer saw an individual driving a vehicle that was reported stolen. After an accident,...
Because the constitutional amendment permitting waiver of a jury trial only applies to defendants arraigned on or after 1 December 2014, a bench trial was improperly allowed in this case where the defendant was arraigned in February 2014. The session law authorizing the ballot measure regarding...
A trial court is required to enter a commitment order at the time of judgment and sentencing. While awaiting sentencing on federal charges, on 18 May 2009 the defendant pleaded guilty to state charges. The trial court held a sentencing hearing that day and, pursuant to the plea, sentenced the...
The court reversed the trial court’s lifetime registration and SBM orders. When a trial court finds a person was convicted of a “reportable conviction,” it must order that person to maintain sex offender registration for a period of at least 30 years. If a trial court also finds that the person...
On appeal from the denial of the defendant’s MAR, the court clarified that the appropriate standard of review is de novo with respect to conclusions of law.
In this felony breaking or entering and felony larceny case, a store Notice of Prohibited Entry was properly authenticated. After detaining the defendant for larceny, a Belk loss prevention associate entered the defendant’s name in a store database. The associate found an entry for the defendant...
In this case dealing with when a sentence began to run on a defendant’s North Carolina charges, the court took judicial notice of certain documents relating to the defendant’s federal case. Those documents included: an indictment; an arrest warrant; an order of detention; a waiver of detention...
An officer had reasonable suspicion to prolong the traffic stop. A six-year officer who had received training in identification of drugs and had participated in 100 drug arrests pulled into the parking lot of a Motel 6, a high crime area. When he entered the lot, he saw two men sitting in a car...
The trial court did not err by sentencing the defendant for both of assault on a female and assault by strangulation. Prefatory language in G.S. 14-33(c) provides that “Unless the conduct is covered under some other provision of law providing greater punishment,” assault on a female is punished...
There was sufficient evidence to support a conviction for first-degree sex offense. The defendant challenged the sufficiency of the evidence with respect to infliction of serious personal injury on the victim. The defendant, a 43-year-old male approximately 5’10” tall with a medium build,...
In a case involving convictions for felony breaking or entering, felony larceny, and misdemeanor injury to real property, the trial court did not err by denying the defendant’s motion to dismiss. The property owner was the defendant’s former girlfriend, who was away at the time. The items taken...
The evidence was sufficient to convict the defendant of felony breaking or entering. After detaining the defendant for larceny, a Belk loss prevention associate entered the defendant’s name in a store database. The associate found an entry for the defendant’s name at Belk Store #329 in Charlotte...
In this kidnapping case, although the trial court erred by instructing the jury on theories that were not alleged in the indictment, no plain error occurred. After rejecting the State’s argument that the defendant was precluded from plain error review, the court noted that the instruction error...
In this DWI case, the trial court erred by refusing to instruct the jury on the defense of necessity. The defendant was arrested for DWI while driving a golf cart. The evidence showed that the defendant and his wife used the golf cart on paths connecting their home to a local bar, that he drove...
The defendant did not revoke consent to search his vehicle. Although the defendant asked the officer what would happen if he revoked his consent, the defendant never revoked consent to search the vehicle, even after the officer explained that he needed to wait for a second officer to arrive to...
In this animal cruelty case, the trial court did not err by imposing a restitution award in the amount of $10,693.43. There was sufficient competent evidence to support the amount of restitution ordered. The State provided written victim impact statements to the trial court during the sentencing...
In a case where the defendant was convicted of child abuse inflicting serious bodily injury under G.S. 14-318.4(a3), there was insufficient evidence that the victim experienced serious bodily injury. The victim, the defendant’s daughter, experienced a femur fracture that required surgery...
No prejudicial error occurred with respect to the trial court’s finding that the defendant’s prior federal conviction of unlawful possession of a firearm was substantially similar to the North Carolina conviction of possession of a firearm by a felon, for purposes of assigning an extra point...
In this driving while license revoked case, because the defendant introduced evidence that he did not receive actual notice from the DMV that his license was revoked, the trial court erred by refusing to instruct the jury that it could find the defendant guilty only if he had knowledge of his...
In a case where the defendant was charged with attempted murder and assault, the trial court did not err by instructing the jury that the defendant could not receive the benefit of self-defense if he was the aggressor. The incident in question involved a shooting; the defendant argued that he...
The trial court abused its discretion by revoking the defendant’s probation, where the evidence was insufficient to establish absconding. The probation officer testified that the defendant absconded a week after a 26 October 2016 meeting by failing attend meetings scheduled for 28 October and 2...
In this felon in possession of a firearm case, the trial court did not abuse its discretion by allowing an officer to identify a person depicted in a surveillance video as being the defendant. The officer testified that while he had never had any direct contact with the defendant he knew who the...
In this possession of a firearm by a felon case, the trial court did not err when it allowed an officer to testify that during an unrelated incident, the officer saw the defendant exiting a house that the officer was surveilling and to testify that the defendant had a reputation for causing...
In this first-degree murder case, the trial court did not abuse its discretion by allowing the State to elicit testimony from a supplemental rebuttal expert, Dr. Wolfe, first disclosed by the State during trial. The defendant asserted a violation of G.S. 15A-903(a)(2)’s pretrial expert witness...
In this murder case, the trial court did not err by admitting into evidence prior written statements made to the police by the defendant’s brothers, Reginald and Antonio, pursuant to the Rule 803(5) recorded recollection exception to the hearsay rule. The statements at issue constitute hearsay....
With one judge concurring in the result only, the court held that the trial court did not commit prejudicial error when, in connection with a plea, it misinformed the defendant of the maximum sentence. Pursuant to an agreement, the defendant pleaded guilty to trafficking in heroin and possession...
(1) The trial court did not err by admitting the defendant’s brother’s videotaped statement to the police as illustrative evidence. The defendant asserted that the videotaped statement constituted inadmissible hearsay. However the trial court specifically instructed the jury that the videotape...
On remand from the state Supreme Court for reconsideration in light of State v. Brice, ___ N.C. ___, 806 S.E.2d 32 (2017) (habitual misdemeanor larceny indictment was not defective; a violation of G.S. 15A-928 is not jurisdictional and cannot be raised on appeal where the defendant raised no...
The court rejected the defendant’s argument that his consent to search his rental vehicle was involuntary because it was given at a time when the stop had been unduly prolonged. Specifically, the defendant argued that the stop was prolonged because of questioning by the officer and the time he...
The trial court did not err by allowing the State to use the defendant’s post-arrest exercise of his right to remain silent against him. Here, there is no evidence in the record that the defendant was given Miranda warnings or that he ever invoked his right to remain silent. In fact, the...
An officer’s search of the defendant’s rental car did not exceed the scope of the defendant’s consent. During a traffic stop, the defendant consented to a search of the vehicle but not to a search of his personal belongings in it, a bag and two hoodies. After searching the defendant’s vehicle,...
In this voluntary manslaughter case, the trial court did not abuse its discretion by failing to find extraordinary mitigation. Although the court found numerous mitigating factors, it found no extraordinary mitigation in the defendant’s case; the trial court sentenced the defendant to the lowest...
Because misdemeanor larceny and simple assault are lesser included offenses of common law robbery, the trial court erred by sentencing the defendant for all three offenses. The court rejected the State’s argument that the defendant was not prejudiced by this error because all three convictions...
The evidence was sufficient to sustain the defendant’s conviction for possession of methamphetamine. After the police discovered a white crystalline substance in a vehicle, they arrested the defendant who had been sitting in the driver’s seat of the car. While being transported to a detention...
On an appeal from the denial of a motion to dismiss for violation of speedy trial rights in a case involving a trial delay of 3 years and 9 months, the court held that because the trial court failed to adequately weigh and apply the Barker v. Wingo factors and to fully consider the...
The evidence was sufficient to sustain a conviction for possession with intent to sell or deliver marijuana. The defendant’s vehicle contained 11.5 grams of marijuana packaged in two sandwich bags, a digital scale, and 23 additional loose sandwich bags. On appeal, the defendant’s primary...
In this possession of methamphetamine case, the court rejected the defendant’s argument that her admission to an officer that she possessed “meth” in her bra was insufficient to establish the nature of the controlled substance under the corpus delicti rule. The defendant’s out-of-court statement...
The evidence was sufficient to support a conviction for unlicensed bail bonding in violation of G.S. 58-71-40. The defendant admitted at trial that he was not licensed as a bondsman in North Carolina. However he asserted that there was insufficient evidence that he acted in the capacity of or...
In this child sexual assault case, although the trial court violated the procedural requirements of G.S. 15A-1225.1 by authorizing the victim’s testimony to be offered remotely without holding a recorded evidentiary hearing on the matter or entering an appropriate order supporting its decision...
In a case where the defendant was found guilty of involuntary manslaughter on the theory that he committed an unlawful act which proximately caused the victim’s death, the trial court committed reversible error by refusing to give a jury instruction on defense of others as an affirmative defense...
In this murder case, the trial court did not err by failing to intervene ex mero motu during the State’s closing argument. The defendant argued that the prosecutor’s closing arguments injected the prosecutor’s personal beliefs, appealed to the jury’s passion, and led the jury away from the...
In a case involving a theft of property from a church, the court held, over a dissent, that the evidence was insufficient to support a larceny conviction. The defendant argued that the State failed to present sufficient evidence that the defendant took the property in question. The evidence...
The trial court lacked jurisdiction to conduct a probation revocation hearing because the defendant was not provided with adequate notice, including a written statement of the violations alleged. The trial court revoked the defendant’s probation after the defendant made multiple repeated...
The trial court had jurisdiction to sentence the defendant after a mandate issued from the Court of Appeals. The defendant appealed his sentence following multiple convictions for sex offense charges. He argued that after the Court of Appeals filed an opinion vacating his original sentence and...
The trial court did not have jurisdiction to revoke the defendant’s probation. Four days before his 30 months of probation was to expire, the trial court entered an order extending the defendant’s probation for 12 months with the defendant’s consent. The purpose of the extension was to allow the...
In this child sexual assault case, the evidence was sufficient to support a conviction for statutory sex offense with a child by an adult. Specifically, the court rejected the defendant’s argument that there was insufficient evidence that he digitally penetrated the victim. Among other things:...
The evidence was sufficient to sustain a conviction for indecent liberties. The defendant challenged only the sufficiency of the evidence with respect to whether he took or attempted to take an indecent liberty with the victim. Having concluded that the State presented substantial evidence that...
Over a dissent, the court held that the trial court did not err by denying the defendant’s motion to dismiss a charge of resisting a public officer on grounds of fatal variance. The indictment specified that the defendant resisted by running away from the officer on foot. The evidence showed...
The evidence was sufficient to support a conviction for misdemeanor breaking or entering. Although the defendant had consent to enter the home’s garage, he did not have consent to enter the residence itself, which he did by breaking down a door.
There was no fatal defect in an indictment charging the defendant with misdemeanor unlicensed bail bonding in violation of G.S. 58-71-40. The indictment alleged that the defendant “did act in the capacity of, and performed the duties, functions, and powers of a surety bondsman and runner,...
The evidence was sufficient to support a conviction for domestic criminal trespass. The court rejected the defendant’s argument that the owner, his former girlfriend, never forbade him from entering her residence. The girlfriend ended her relationship with the defendant and ordered him to leave...
In this sexual assault case, the court rejected the defendant’s argument that the State’s impeachment of the defendant with his post-Miranda silence violated the defendant’s constitutional rights. After the defendant was arrested and read his Miranda rights, he signed a waiver of his rights and...
The trial court properly issued an order authorizing a pen register for the defendant’s phone. The order was issued pursuant to the Stored Communications Act (SCA). The SCA requires only reasonable suspicion for issuance of an order for disclosure. The order in question was based on information...
The trial court lacked subject matter jurisdiction to enter an order denying the defendant’s motion for post-conviction DNA testing pursuant to G.S. 15A-269 while the defendant’s appeal from the original judgment of conviction was pending. The defendant was convicted of an attempted sexual...
In a case where a juvenile was found to be delinquent based on the offense of injury to personal property with respect to a school printer, the trial court did not err by denying the juvenile’s motion to dismiss. The petition alleged that the juvenile damaged a printer owned by the “Charlotte...
Where the record was inconsistent and unclear as to whether the defendant pled guilty to felony possession of marijuana, the court vacated a judgment for that offense and remanded, directing the trial court to “take the necessary steps to resolve the discrepancy between the transcript of plea...
Addressing the issue as one of legislative intent, the court held that the trial court did not err by imposing punishment for armed robbery in Johnston County when the defendant previously pled guilty in Harnett County to two counts of misdemeanor possession of stolen goods with respect to some...
The trial court did not err by admitting an officer’s testimony about the results of a horizontal gaze nystagmus (HGN) test. At trial, the North Carolina Highway Patrol Trooper who responded to a call regarding a vehicle accident was tendered as an expert in HGN testing. The defendant objected...
(1) In this drug case, a search of the defendant’s person was a proper search incident to arrest. An officer stopped the defendant’s vehicle for driving with a revoked license. The officer had recognized the defendant and knew that his license was suspended. The officer arrested the defendant...
Hit and run resulting in injury is a lesser included offense of hit and run resulting in death. The defendant was indicted for a felonious hit and run resulting in death. At trial the State requested that the jury be instructed on the offense of felonious hit and run resulting in injury. Over...
The trial court’s ex parte orders compelling the production of the defendant’s personnel files and educational records were void ab initio. While employed as a police officer the defendant was involved in a vehicle pursuit that resulted in the death of the pursued driver. Prior to charging the...
When, under G.S. 122C-303, an officer takes a publicly intoxicated person to jail to assist that person and the action is taken against the person’s will, an arrest occurs.
(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of assault on a law enforcement officer inflicting serious bodily injury. The defendant asserted that he only used the amount of force reasonably necessary to resist an unlawful arrest. In the case, the officer...
The trial court did not err when instructing the jury on the offense of unlawfully taking deer with the assistance of artificial lighting. The court rejected the defendant’s argument that the trial court expressed an opinion when giving the jury instructions, concluding that the trial court gave...
Although declining to reach the merits of the defendant’s claim that the trial court erred in handling a juror’s inquiry about whether jurors may question witnesses, the court noted that whether to allow jurors to question witnesses is within the sound discretion of the trial court. Although the...
In an assault on a law enforcement officer inflicting serious bodily injury case, the trial court did not err by denying the defendant’s motion to suppress evidence of his attack on the officer, alleged by the defendant to be proper resistance to an unlawful arrest. The court concluded: “Even if...
(1) In this child sexual assault case, the trial court did not err by admitting an assessment in a report by the State’s medical expert, Dr. Thomas, of “Child sexual abuse.” Thomas testified to general characteristics of abused children. She did not offer an opinion that the victim had been...
Following its decision in State v. Babich, ___ N.C. App. ___, 797 S.E.2d 359 (2017), in this DWI case the court held that the State’s expert testimony regarding retrograde extrapolation was inadmissible under Daubert and Rule 702. The expert used the defendant’s .06 BAC 1 hour and 35...
In this murder case, the trial court did not err by admitting a witness’s prior statement to the police to corroborate his in-court testimony. According to the defendant, the prior statement added “critical facts” that were not otherwise shown by the evidence. The court found that many of the...
In this attempted murder and assault case, the court rejected the defendant’s claim that his lawyer rendered ineffective assistance by failing to object to the introduction of testimony about street gangs. The court rejected the assertion that there was no strategic reason for trial counsel to...
In this DWI case the court rejected the defendant’s argument that the trial court erred by failing to intervene ex mero motu to statements made by the prosecutor in closing argument. The court found the defendant’s argument to be “meritless at best,” noting that the statements at issue were...
The trial court did not err by denying the defendant’s motion to dismiss a first-degree murder charge based on the theory of lying in wait. The defendant asserted that no ambush occurred because the defendant announced his presence. The evidence showed that the victim was in his residence with...
In this case where the defendant was convicted of first-degree murder, the trial court did not err by failing to instruct the jury on the lesser included offense of voluntary manslaughter. On appeal, the defendant argued that he acted in the heat of passion. The defendant did not testify at...
(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of assault with a deadly weapon with intent to kill inflicting serious injury on victim Stokes. The court rejected the defendant’s argument that the State was required to prove that the defendant specifically...
The court rejected the defendant’s argument that the trial court erred by giving a coercive instruction after the jury indicated that it was deadlocked. Concluding that the trial court’s instructions to continue deliberations were in accord with G.S. 15A-1235(b), the court disagreed. The jury...
In a case where the defendant was convicted of felon in possession of a firearm, the court rejected his argument that the felony possession statute was unconstitutional as applied to him. The court began by rejecting the defendant’s federal constitutional claim, noting that because he is a...
On the particular facts of the case, the trial court’s erroneous entry of judgment of not guilty by reason of insanity did not create a jeopardy bar to further proceedings. The trial court’s order did not constitute an acquittal to which jeopardy attached. Its order, which dismissed the charges...
The trial court did not err by denying the defendant’s motion to dismiss a charge of abduction of a child under G.S. 14-41. The defendant, who had a sexual relationship with the child victim, argued that the evidence showed that the child voluntarily left her home. The court rejected this...
In this murder case, the court succinctly rejected the defendant’s argument that he could not be retried for murder after his first trial ended in a hung jury. It noted that courts have long held that the prohibition against double jeopardy does not apply when the prior trial ended in a hung...
In this child sexual assault case, the trial court did not err by admitting Rule 404(b) evidence regarding a sexual assault perpetrated by the defendant on another child, Katy. The case being tried involved vaginal intercourse and other acts with a child victim. The 404(b) evidence involved in...
In this murder case, officers had probable cause to arrest the defendant. Thus, the trial court did not err by denying the defendant’s motion to suppress incriminating statements made by the defendant after arrest. After law enforcement discovered a woman’s body inside an abandoned, burned car,...
The court rejected the defendant’s argument that his plea was not knowing and voluntary because the trial court erroneously advised him that he had the right to appeal a denial of the defendant’s pro se motion to dismiss. The motion to dismiss was based on lack of subject matter and personal...
An indictment charging obtaining property by false pretenses was defective where it charged the defendant with obtaining an unspecified amount of “credit” secured through the issuance of an unidentified “loan” or “credit card.” This vague language failed to describe what was obtained with...
The trial court erred by imposing sentences for assault with a deadly weapon with intent to kill inflicting serious injury and assault inflicting serious bodily injury based on the same incident. The statute proscribing the lesser of the two offenses, a Class F felony, includes the following...
The trial court erred by allowing the State, at the beginning of trial, to amend the indictment charging the defendant with trafficking in heroin to allege trafficking in opiates. In connection with a drug investigation, an officer and informant waited in a hotel room for the defendant. The...
In this possession of marijuana paraphernalia case, the State presented sufficient evidence to establish that the defendant constructively possessed a marijuana pipe found in a crashed vehicle. Although the defendant did not have exclusive possession of the vehicle, sufficient incriminating...
Because the trial court failed to provide its rationale for denying the defendant’s motions to suppress, the court found itself unable to engage in meaningful review with respect to the trial court’s denial of the motions and thus remanded. Although the trial court is only required to make...
For habitual impaired driving, the three prior impaired driving convictions need not be from different court dates. On appeal, the defendant alleged that the indictment for habitual impaired driving was facially invalid because two of the underlying impaired driving convictions were from the...
In this case involving impaired and reckless driving, the court rejected the defendant’s argument that the State presented insufficient evidence to establish that he was driving the vehicle, in violation of the corpus delicti rule. The court found that the State presented substantial evidence to...
The trial court did not err by failing to instruct the jury on duress as a defense to a charge of first-degree murder on the basis of premeditation and deliberation. Duress is not a defense to such a charge.
In this attempted murder and robbery case, the court applied the new Daubert test for expert testimony and held that trial court abused its discretion by allowing the State’s expert witness to testify that latent fingerprints found on the victim’s truck and on evidence seized during a...
The trial court did not err by allowing a state trooper to testify about the results of a chemical analysis of the defendant’s breath. On appeal, the defendant argued that the State failed to provide an adequate foundation for this testimony. Specifically, the court found that the requirements...
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In this murder case, the trial court did not abuse its discretion by admitting photographs of the victim and crime scene. The trial court allowed the State to introduce approximately 20 photographs depicting various angles and details of the crime scene and the victim’s location and injuries....
Because the trial court’s findings of fact do not support its conclusion that the defendant was legally seized at the time consented to a search of his person, the court reversed the trial court’s order denying the defendant’s motion to suppress contraband found on his person. Officers were...
In this attempted murder and robbery case, a search warrant was supported by probable cause. On appeal, the defendant argued that the warrant lacked probable cause because a statement by a confidential informant provided the only basis to believe the evidence might be found at the premises in...
(1) In this impaired driving case, the court rejected the defendant’s argument that his speedy trial rights were violated due to a four year delay between indictment and trial. Considering the speedy trial factors, the court found that the length of delay weighed in the defendant’s favor. The...
In this murder case, the prosecutor’s statement that the defendant “can’t keep her knees together or her mouth shut” was “improperly abusive.” The defendant was charged with murdering her husband, and the State’s evidence indicated that she was having an affair with her therapist. However, the...
In this second-degree murder case, the trial court erred by sentencing the defendant as a Class BI felon. The jury unanimously convicted the defendant of second-degree murder. The verdict however was silent as to whether the second-degree murder was a Class BI or B2 offense. The court held that...
In this murder case, there was sufficient evidence of premeditation and deliberation. The evidence showed that the victim suffered from a heart condition and other ailments. In the months before his death, the defendant and the victim--who were married--were arguing about financial issues. The...
In this murder case, the court rejected the defendant’s argument that the trial court should have granted the defendant’s motion to dismiss because the State failed to present substantial evidence that the defendant did not act in self-defense. Ample evidence contradicted the defendant’s claim...
(1) The court rejected the defendant’s assertion that counsel was ineffective by failing to state for the record details of an absolute impasse between himself and counsel. Although the defendant initially wanted counsel to make certain admissions in opening statements to the jury, after...
(1) In this drug case, the court rejected the defendant’s argument that she received ineffective assistance of counsel when defense counsel elicited damaging testimony from a law enforcement officer that a witness was “honest.” Declining to address whether counsel’s conduct constituted deficient...
In this murder case, the prosecutor’s statement that the defendant “can’t keep her knees together or her mouth shut” was “improperly abusive.” The defendant was charged with murdering her husband, and the State’s evidence indicated that she was having an affair with her therapist. However, the...
The court affirmed the trial court’s denial of the petitioner’s petition to be removed from the sex offender registry. The trial court found that the requested relief did not comply with federal law. On appeal, the court rejected the petitioner’s argument that the trial court violated his...
In this armed robbery and murder case, the trial court did not err by concluding that law enforcement officers had probable cause to arrest the defendant. Among other things, the defendant placed a telephone call using the victim’s cell phone about 20 minutes before the victim’s death was...
No reasonable suspicion supported a stop. At approximately 5 pm dispatch notified a trooper on routine patrol that an informant-driver reported that another driver was driving while intoxicated. The informant reported that the driver was driving from the Hubert area towards Jacksonville,...
The trial court did not err by denying the defendant’s motion to dismiss a charge of armed robbery asserting that the State failed to establish the corpus delicti of the crime. Specifically, the defendant argued that the State relied solely on his uncorroborated confession, which, under the...
The defendant failed to preserve the claim that the trial court erred by ordering him to enroll in SBM without conducting a Grady hearing to determine whether the monitoring was reasonable under the Fourth Amendment. After a jury convicted the defendant of taking indecent liberties with his...
The court declined to issue a writ of certiorari to consider the defendant’s argument that the trial court erred in finding that he was a recidivist and thus qualified for lifetime SBM. The defendant failed to timely appeal on this ground. The court declined to issue the writ because the...
Reasonable suspicion supported the traffic stop. At the time of the stop it was very late at night; the defendant’s vehicle was idling in front of a closed business; the business and surrounding properties had experienced several break-ins; and the defendant pulled away when the officer...
The court rejected the defendant’s argument that trial counsel was deficient by failing to give notice to the State of the defendant’s intention to offer an alibi witness. The defendant had argued that trial counsel’s failure was a violation of the discovery rules and resulted in the trial court...
Reasonable suspicion supported the traffic stop. At the time of the stop it was very late at night; the defendant’s vehicle was idling in front of a closed business; the business and surrounding properties had experienced several break-ins; and the defendant pulled away when the officer...
As conceded by the State, indictments charging the defendant with possession with intent to sell and deliver marijuana and heroin within 1000 feet of a park under G.S. 90-95(e)(10) were fatally defective where they failed to allege that he was over the age of 21 at the time of the offenses.
The trial court did not commit plain error by allowing a trooper to testify at trial about the HGN test he administered on the defendant during the stop where the State never formally tendered the trooper as an expert under Rule 702. The court noted that during the pendency of the appeal the...
Because the trial court failed to consider evidence of the defendant’s eligibility for conditional discharge pursuant to G.S. 90-96, the court vacated the judgment and remanded for resentencing. The defendant pleaded guilty to driving while impaired and possession of LSD. According to the plea...
Having found that the defendant’s convictions for drug offenses that were part of a plea agreement had to be vacated on grounds of fatal defects in the indictments, the court held that the entire plea agreement and the judgments entered on it must be set aside and the matter remanded to the...
Because the trial court failed to consider evidence of the defendant’s eligibility for conditional discharge pursuant to G.S. 90-96, the court vacated the judgment and remanded for resentencing. The defendant pleaded guilty to driving while impaired and possession of LSD. According to the plea...
Reasonable suspicion supported the traffic stop. At the time of the stop it was very late at night; the defendant’s vehicle was idling in front of a closed business; the business and surrounding properties had experienced several break-ins; and the defendant pulled away when the officer...
The trial court erred in calculating the defendant’s prior record level points. Specifically, it made an arithmetic error, finding that the points totaled 18 when in fact they totaled 17. This error lead the trial court to sentence the defendant as a prior record level VI offender instead of as...
As conceded by the State, the evidence was insufficient to establish misdemeanor larceny where the defendant was in lawful possession of the property at the time she removed it. After eviction proceedings were instituted against the defendant at one residence, she moved into a new home. Because...
The trial court did not commit plain error by allowing a trooper to testify at trial about the HGN test he administered on the defendant during the stop where the State never formally tendered the trooper as an expert under Rule 702. The court noted that during the pendency of the appeal the...
The trial court erred by denying the defendant’s motion to dismiss a charge of misdemeanor injury to personal property. First, the State failed to present sufficient evidence showing that the defendant intended to cause injury to the personal property. The property in question was appliances,...
The evidence was sufficient to sustain a conviction for resisting, delaying, and obstructing an officer (RDO). The court rejected the argument that the evidence was insufficient evidence to show that the defendant delayed or intended to delay an officer. The officer responded to a Walmart store...
In this Miller Eighth Amendment/LWOP case, the superior court lacked jurisdiction to enter judgment. The trial court resentenced the defendant in response to a decision by the North Carolina Supreme Court, but before the mandate had issued from that Court. The court vacated the judgment...
No plain error occurred in this drug case where the trial court instructed the jury that it could convict the defendant if it found that he was in actual or constructive possession of the contraband. Although there was no evidence that the defendant actually possessed the contraband, no plain...
The evidence was sufficient to convict the defendant of larceny of a firearm. The court rejected the defendant’s argument that the evidence was insufficient to show that he intended to permanently deprive the victim of a firearm, noting: “Generally, where a defendant takes property from its...
In this child abuse case, the expert witness’s testimony did not constitute improper vouching for the victim. At trial Holly Warner, a nurse practitioner, testified as an expert. Warner had evaluated the victim after he was placed in foster care. At trial she related what the victim told her...
The trial court did not err by denying the defendant’s motion to dismiss a charge of resisting an officer. The court rejected the defendant’s argument that the officer was not discharging a lawful duty at the time of the stop because he did not have reasonable suspicion that the defendant had...
(1) In this habitual misdemeanor larceny case, the court rejected the defendant’s argument that the trial court created a fatal variance when it instructed the jury on a theory of acting in concert not alleged in the indictment. Citing prior case law, the court held that the theory of acting in...
When a trial court properly determines, pursuant to Evidence Rule 403, that the probative value of evidence about a victim’s sexual history is substantially outweighed by its potential for unfair prejudice, the trial court does not err by excluding the evidence, regardless of whether it falls...
(1) Because the trial court failed to make statutorily required findings of fact addressing statutory mitigating factors prior to sentencing the juvenile defendant to life imprisonment without the possibility of parole, a new sentencing hearing was required. The defendant was convicted of first-...
(1) In this habitual misdemeanor larceny case, the court rejected the defendant’s argument that the trial court created a fatal variance when it instructed the jury on a theory of acting in concert not alleged in the indictment. Citing prior case law, the court held that the theory of acting in...
The trial court did not err by joining for trial offenses that occurred on different dates. The first set of offenses occurred on May 15, 2015 and involved assaults and sexual assaults on B.A. The second set of charges arose from a breaking or entering that occurred approximately eight months...
When a trial court properly determines, pursuant to Evidence Rule 403, that the probative value of evidence about a victim’s sexual history is substantially outweighed by its potential for unfair prejudice, the trial court does not err by excluding the evidence, regardless of whether it falls...
The trial court erred by denying the defendant’s motion to dismiss charges of assault inflicting serious bodily injury where there was insufficient evidence that the officer sustained serious bodily injury from the defendant’s bites. There was insufficient evidence of a permanent or protracted...
In this drug case, the court held that although the trial court erred by allowing lay opinion testimony identifying the substance at issue as crack cocaine based on a visual identification, the error was not prejudicial where the State presented expert testimony, based on a scientifically valid...
The trial court did not err by joining for trial offenses that occurred on different dates. The first set of offenses occurred on May 15, 2015 and involved assaults and sexual assaults on B.A. The second set of charges arose from a breaking or entering that occurred approximately eight months...
(1) In this habitual misdemeanor larceny case, the court rejected the defendant’s argument that the trial court created a fatal variance when it instructed the jury on a theory of acting in concert not alleged in the indictment. Citing prior case law, the court held that the theory of acting in...
Over a dissent, the court dismissed as moot the defendant’s appeal from a judgment revoking his probation and activating his suspended sentence. After finding that the defendant was not at home during a mandatory curfew on two occasions, that these absences constituted willful violations of...
Because the trial court summarily denied the defendant’s motion to suppress, a full hearing with sworn testimony was not required under G.S. 15A-977 (motion to suppress procedure). The defendant’s own affidavit clearly laid out facts establishing that the officer had reasonable suspicion to...
(1) The court rejected the defendant’s argument that the trial court erred by providing the jury with written jury instructions on the charge of felonious breaking or entering which conflicted and materially differed from the court’s earlier oral instructions. As a general rule, when there are...
In this drug case, the court held that although the trial court erred by allowing lay opinion testimony identifying the substance at issue as crack cocaine based on a visual identification, the error was not prejudicial where the State presented expert testimony, based on a scientifically valid...
(1) In calculating prior record level, the trial court did not err by concluding that the defendant’s South Carolina conviction for criminal sexual conduct in the third degree was substantially similar to the North Carolina Class C felonies of second-degree forcible rape and second-degree...
In this felony-murder case where the underlying felony was discharging a firearm into an occupied vehicle, the trial court did not err by declining to instruct on self-defense. The court rejected the defendant’s argument that a reasonable jury could have found that the shooting constituted...
Where a negotiated plea agreement involving several charges included a plea to a crime later held to be unconstitutional, the entire agreement must be set aside. After the jury convicted the defendant of being a sex offender on the premises of a daycare, the defendant pled guilty based on a...
The trial court did not err by revoking the defendant’s probation based on its finding that he willfully absconded from supervision. In so ruling, the court rejected the defendant’s argument that the trial court abused its discretion by making its oral findings of fact without explicitly stating...
The State conceded, and the court held, that the trial court should not have sentenced the defendant as a habitual felon where the issue was not submitted to the jury and no formal guilty plea was made. Here, the defendant only stipulated to habitual felon status.
The trial court did not err by revoking the defendant’s probation based on its finding that he willfully absconded from supervision. Reviewing the facts of the case, the court rejected the defendant’s argument that there was insufficient evidence that he willfully absconded from supervision.
(1) The evidence was insufficient to support a conviction under G.S. 14-208.18(a)(1), for being a sex offender on the premises of a daycare. The defendant was seen in a parking lot of a strip mall containing a daycare, other businesses, and a restaurant. Next-door to the daycare was a hair salon...
In this felony-murder case where the underlying felony was discharging a firearm into an occupied vehicle, the trial court did not err by declining to instruct on self-defense. The court rejected the defendant’s argument that a reasonable jury could have found that the shooting constituted...
The court held, over a dissent, that even if the initial stop was not supported by reasonable suspicion, the trial court properly denied the defendant’s motion to suppress where the evidence sought to be suppressed--a stolen handgun--was obtained after the defendant committed a separate crime:...
(1) The trial court did not abuse its discretion by denying the defendant’s motion to continue. The court rejected the defendant’s argument that the trial court’s denial of his motion to continue constituted an improper overruling or reversal of an earlier order or ruling by another judge....
The trial court did not abuse its discretion by excluding statements from the defendant’s custodial interviews on April 23rd and 25th while admitting statements from a third custodial interview on April 26th. On appeal the defendant argued that his prior...
The trial court properly denied the defendant’s motion to suppress evidence seized during the executions of warrants to search his rental cabin and truck for stolen goods connected to a breaking and entering of a horse trailer. The defendant argued that the search warrant affidavit establish no...
In this homicide case, the trial court did not commit plain error in its jury instructions on the defense of automatism. The defendant argued that the jury instruction misleadingly implied that he had to prove the defense beyond a reasonable doubt. The trial court’s instructions, which were...
In this felony larceny case, the trial court did not abuse its discretion by excluding the defendant’s witness as a sanction for the defendant’s violation of discovery rules, specifically, the defendant’s failure to timely file notice that he intended to call the witness as an alibi witness...
In this homicide case, the trial court did not err by allowing the State’s expert witness on automatism to testify to the defendant’s state of mind at the time of the shooting. The expert endocrinologist testified that based on his experience with hypoglycemia and his review of the defendant’s...
The court rejected the defendant’s argument that the trial court erred during jury selection by unduly restricting the defendant’s inquiry into whether prospective jurors could fairly evaluate credibility if faced with evidence that a person had lied in the past. The trial court properly...
(1) In this murder case, the trial court did not err by excluding the testimony of a defense psychiatrist on the basis that the witness’s proffered testimony constituted expert opinion testimony that had not been disclosed pursuant to a reciprocal discovery order. The witness, Dr. Badri Hamra,...
In this DWI case to which the amended version of Evidence Rule 702 applied, the court held that a trial court does not err when it admits expert testimony regarding the results of a Horizontal Gaze Nystagmus (HGN) test without first determining that HGN testing is a product of reliable...
In this homicide case, the trial court did not err by allowing the State to question the defendant’s expert witness on automatism regarding the amount of fees he received for testifying in other, unrelated criminal cases. The challenged evidence was relevant to “test partiality towards the party...
The evidence was sufficient with respect to the defendant’s voluntary manslaughter conviction. The defendant was charged with first-degree murder. At trial the defendant admitted that he shot and killed his wife. He argued however that as a result of diabetes, his blood sugar was dangerously low...
In this homicide case, the trial court did not commit plain error in its jury instructions on the defense of automatism. The defendant argued that the jury instruction misleadingly implied that he had to prove the defense beyond a reasonable doubt. The trial court’s instructions, which were...
In this DWI case, the trial court did not err by failing to intervene ex mero motu when the prosecutor speculated in closing argument about what the defendant’s breathalyzer test would have been an hour before she was actually tested. The court found that the argument at issue was not so grossly...
The trial court did not commit plain error by failing to instruct the jury on the lesser-included offense of involuntary manslaughter. In the context of a shooting, the charge of involuntary manslaughter requires evidence of the absence of intent to discharge the weapon. This fact distinguishes...
The trial court did not commit plain error by failing to instruct the jury on the lesser-included offense of involuntary manslaughter. In the context of a shooting, the charge of involuntary manslaughter requires evidence of the absence of intent to discharge the weapon. This fact distinguishes...
Even if a psychiatrist was not testifying as an expert, the trial court nevertheless acted within its discretion by excluding his testimony under Rule 403.
The court rejected the defendant’s argument that the trial court erred during jury selection by unduly restricting the defendant’s inquiry into whether prospective jurors could fairly evaluate credibility if faced with evidence that a person had lied in the past. The trial court properly...
The trial court lacked jurisdiction to revoke the defendant’s probation based on the violations alleged. Here, the defendant did not waive his right to notice of his alleged probation violations and the State failed to allege a revocation-eligible violation. Thus, the trial court lacked...
Although there was a fatal variance between the allegation in a felony larceny indictment as to the owner of the stolen property and the proof of ownership presented at trial, the variance did not warrant dismissal. The indictments alleged that all of the stolen items, a television, gaming...
The trial court did not err by denying the defendant’s motion to suppress statements made to an officer while the officer was transporting the defendant to the law enforcement center. It was undisputed that the defendant made the inculpatory statements while in custody and before he had been...
Although admission of video evidence was error, it was not prejudicial error. An officer testified that the day after the incident in question he asked the manager of a convenience store for a copy of the surveillance video made by store cameras. The manager allowed the officer to review the...
Because there was insufficient evidence to establish that the value of the stolen items exceeded $1000, the trial court erred by failing to dismiss a charge of felonious larceny. The items in question, stolen during a home break-in, included a television and earrings. Although the State...
In this drug trafficking case, the trial court did not abuse its discretion by declining to declare a mistrial because of a prospective juror’s comment. In the presence of the rest of the jury pool, the prospective juror stated that he had seen the defendant “around” and “I believe she did it.”...
Where there was insufficient evidence as to the ownership of the property in question, a vehicle, the evidence was insufficient to convict the defendant of felony conversion under G.S. 14-168.1. The indictment alleged that the vehicle was owned by a natural person named as Ezuma Igwe but the...
Over a dissent, the court rejected the defendant’s argument that there was a clerical error in the judgment. Although the trial court stated after the jury returned the verdict that it was “going to arrest judgment” on the trafficking by delivery charge, the trial court did not pronounce the...
The doctrine of recent possession applies to obtaining property by false pretenses. Thus, the trial court did not err by instructing the jury on this doctrine.
A witness’s pretrial deposition testimony, taken in preparation of the criminal case, was clearly testimonial for purposes of the Confrontation Clause.
The trial court did not err by failing to instruct the jury on imperfect self-defense and imperfect defense of others where the defendant did not request that the trial court give any instruction on imperfect self-defense or imperfect defense of others. In fact, when the State indicated that it...
The trial court erred by imposing satellite-based monitoring for a period of thirty years due to a violation of G.S. 14-208.40A. Here, the Static-99 revealed a risk assessment of four points, which translated into a “Moderate-High” risk category. Pursuant to existing law, the “Moderate-High”...
In this statutory rape case, the court rejected the defendant’s argument that the trial court erred by allowing the State’s witness, Dr. Rothe, to improperly bolster the victim’s credibility. Rothe made no definitive diagnosis that the victim had experienced sexual abuse. Instead, Rothe detailed...
The evidence was sufficient to sustain a conviction for maintaining a dwelling. Officer recovered from the home a Schedule I controlled substance, marijuana, a glass jar that had the odor of marijuana, Garcia y Vega cigar wraps, a marijuana roach, digital scales, sandwich bags, and a security...
The trial court did not abuse its discretion by admitting a more complete version of a detective’s notes after the defendant opened the door by asking about one portion of those notes. The court rejected the defendant’s argument that it was improper to admit the notes under Rule 106 (remainder...
The trial court erred by finding that the defendant had “gang affiliation” and ordering gang restrictions in the judgment. G.S. 14-50.25 provides that when a defendant is found guilty of a criminal offense relevant to the statute “the presiding judge shall determine whether the offense involved...
Counsel was not ineffective by failing to allege a Fourth Amendment violation in a motion to suppress a warrantless blood draw. Here, no prejudice occurred under the Strickland test because there was sufficient evidence for a conviction based driving while under the influence of an...
In a case in which there was a dissenting opinion, the court held that the trial court erred by admitting a non-testifying witness’s pretrial deposition testimony. (1) The trial court’s finding were insufficient to establish that the witness was unavailable for purposes of the Rule 804(b)(1)...
In this drug case, the trial court committed plain error by allowing a law enforcement officer to testify that pills found at the defendant’s home were Alprazolam and Oxycodone, where the identification was based on a visual inspection of the pills and use of a website, drugs.com. Under North...
The trial court did not commit plain error by admitting for illustrative purposes a Facebook picture of the defendant and an accomplice in which the defendant’s middle finger was extended. At trial the State called a detective who testified that the victim showed him a picture of the defendant...
Although juror misconduct occurred, the defendant’s challenge failed because the error was invited. After it was reported to the judge that a juror did an internet search of a term used in jury instructions, the judge called the jurors into court and instructed them to disregard any other...
The trial court did not abuse its discretion by sustaining the State’s objection to the introduction of an unauthenticated screenshot to impeach the victim’s credibility. Although it was permissible for counsel to ask the defendant questions about the screenshot, he could not impeach the victim’...
In a case in which there was a dissenting opinion, the court held that the trial court erred by admitting a non-testifying witness’s pretrial deposition testimony. (1) The trial court’s finding were insufficient to establish that the witness was unavailable for purposes of the Rule 804(b)(1)...
To the extent the State failed to meet its burden at sentencing to establish that the defendant’s prior conviction in federal court was substantially similar to a Class G felony in North Carolina, the error was harmless. The court found that there is sufficient information in the record to...
(1) The evidence was sufficient to sustain a conviction for obtaining property by false pretenses. After the defendant falsely reported that his girlfriend had written 3 checks on his account without authorization, he received a provisional credit on his bank account with respect to one of the...
In a hit and run case involving failure to remain at the scene, the trial court committed plain error by failing to instruct the jury with respect to willfulness where the defendant’s sole defense was that his departure was authorized and required to get assistance for the victim. The court...
The defendant is entitled to a new sentencing hearing where the trial court violated his right to speak on his own behalf at sentencing. G.S. 15A-1334(b) provides that a defendant may make a statement on his behalf at sentencing. Here, defense counsel clearly informed the court that the...
A fatal variance issue that is not raised at trial is waived for purposes of appeal.
(1) The evidence was sufficient to sustain a conviction for obtaining property by false pretenses. After the defendant falsely reported that his girlfriend had written 3 checks on his account without authorization, he received a provisional credit on his bank account with respect to one of the...
Because the State failed to meet its burden of demonstrating that a warrantless search was authorized by G.S. 15A-1343(b)(13), the trial court erred by denying the defendant’s motion to suppress. The defendant was subjected to the regular condition of probation under G.S. 15A-1343(b)(13). This...
In this child sexual assault case, the court rejected the defendant’s argument that a statement made by a prospective juror violated his constitutional right to an impartial jury and constituted plain error. Specifically, the defendant argued that the prospective juror’s statement that her uncle...
In this impaired driving case, the court rejected the defendant’s argument that the trial court erred by denying his motion to suppress self-incriminating statements made without Miranda warnings, finding that the defendant was not in custody at the time. The standard for determining...
In this impaired driving case the trial court properly denied the defendant’s motion to suppress where exigent circumstances supported a warrantless blood draw. The defendant tested at .10 on a roadside test, was arrested at 2:48 AM and then was transported to the police department, where he...
In this impaired driving case the trial court properly denied the defendant’s motion to suppress where exigent circumstances supported a warrantless blood draw. The defendant tested at .10 on a roadside test, was arrested at 2:48 AM and then was transported to the police department, where he...
In this child sexual assault case, the State’s medical expert did not impermissibly testify that the victim had been abused. Case law holds that in the absence of physical evidence to support a diagnosis of sexual abuse, expert testimony that sexual abuse has in fact occurred is not admissible...
In this impaired driving case the court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss at the close of the State’s evidence. The defendant had argued that there was no independent evidence, other than his admission, to establish that he was...
The court rejected the defendant’s argument that the trial court erred by entering judgment for two separate counts of manufacturing methamphetamine. The defendant had argued that the crime was a single continuing offense and that therefore one of the conviction should be vacated. However two...
In this child sex case, no prejudicial error occurred when the trial court instructed the jury on a sexual act that was not supported by the evidence. The defendant was convicted of four felonies under G.S. 14-27.4(a)(1) (first degree sexual offense with a child) and two felonies under G.S. 14-...