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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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 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-...
The trial court erred by ordering lifetime registration for the defendant. Although the defendant was convicted of reportable convictions and is therefore required to register as a sex offender, neither sexual offense with a child under G.S. 14-27.4A(a) nor sexual activity by a substitute parent...
The trial court did not err by allowing the introduction of a video recording of the State’s witness being interviewed by law enforcement to corroborate the officer’s prior testimony about the interview.
In this sex offender registration case where the defendant was charged with failing to notify of an address change, there was sufficient evidence that the defendant changed his address. After the defendant registered in 2011, he was incarcerated and then released in 2013. The Supreme Court has...
(1) The trial court erred by ordering lifetime registration for the defendant. Although the defendant was convicted of reportable convictions and is therefore required to register as a sex offender, neither sexual offense with a child under G.S. 14-27.4A(a) nor sexual activity by a substitute...
The trial court did not err in instructing the jury with respect to proximate cause as to the charge of felonious serious injury by vehicle. The defendant argued that the language of the statute “forecloses the possibility of the state proving proximate cause in conjunction with some other...
In this sex offender registration case, double jeopardy barred convictions under both G.S. 14-208.11(a)(2) and (a)(7). The defendant was convicted of two separate crimes: one pursuant to G.S. 14-208.11(a)(2) (failure to notify the last registering sheriff of a change in address) and one pursuant...
In this case where the defendant was charged with three counts of first-degree sex offense with a child and three counts of sex offense by a substitute parent, the trial court’s jury instructions did not allow for a non-unanimous verdict. The indictments charged that the offenses all occurred...
The trial court did not err by allowing the introduction of a video recording of the State’s witness being interviewed by law enforcement as substantive evidence where the statement fell within the Rule 803(5) hearsay exception for past recollection recorded. The court rejected the notion that...
In this impaired driving second-degree murder case, the trial court did not err by preventing the defendant from cross-examining witness Cooke regarding the contents of a verified complaint that Cooke had filed against the defendant and the estate of the deceased victim on behalf of himself and...
No plain error occurred with respect to a supplemental jury instruction given by the trial court in response to the jury’s note that it was “stuck” during deliberations. The noted indicated that the jury was split 11 to 1. Neither party objected to the trial court’s suggestion to give the jury...
In this sex offender registration case, double jeopardy barred convictions under both G.S. 14-208.11(a)(2) and (a)(7). The defendant was convicted of two separate crimes: one pursuant to G.S. 14-208.11(a)(2) (failure to notify the last registering sheriff of a change in address) and one pursuant...
(1) In this impaired driving second-degree murder case, the court rejected the defendant’s argument that the trial court’s instruction on proximate cause was erroneous and that the trial court committed plain error by failing to instruct the jury on intervening negligence. The trial court...
In this impaired driving second-degree murder case, the trial court did not err by denying the defendant’s motion to dismiss which had asserted that violation of G.S. 15A-501 required dismissal of the charges. Under G.S. 15A-501, a law enforcement must bring a person arrested before a judicial...
In this impaired driving second-degree murder case, the trial court did not err by excluding evidence that a child victim was not properly restrained in a child seat. Although G.S. 20-127.1 provides that passengers less than 16 years old must be properly secured in a vehicle, the statute also...
The trial court erred by ordering the defendant to pay $200 in restitution where no evidence was offered to support the amount of restitution ordered.
The trial court did not err by denying the defendant’s motion to withdraw his Alford plea. After finding that there was no support in the record for various factual assertions made by the defendant on appeal, the court found that the defendant had offered no fair and just reason for...
Indictments charging the defendant with failing register under G.S. 14-208.11(a)(2) and (a)(7) were not fatally defective where the indictments substantially tracked the language of the statute.
The court rejected the defendant’s argument that the trial court erred by revoking her probation after its expiration because it did not make adequate findings of fact. Specifically, the defendant argued that the trial court erred by failing to make any written or oral findings of good cause to...
The trial court had jurisdiction to revoke the defendant’s probation. The court rejected the defendant’s argument that the trial court in Harnett County lacked jurisdiction to commence a probation revocation hearing because the probation originated in Sampson County. It held: “A trial court...
The court rejected the defendant’s argument that the evidence was insufficient to sustain a conviction for injury to personal property. The defendant asserted that his mere presence at the scene constituted insufficient evidence. However, citing other incriminating evidence, the court rejected...
The evidence was sufficient to convict the defendant of possession of burglar’s tools. Specifically, there was sufficient evidence that the defendant had constructive possession of a prybar and bolt cutters found at the scene. These tools were found within the fenced in area. Although the...
In this felon in possession case, there was insufficient evidence that the defendant possessed the rifle in question. While attempting to locate the defendant, deputies established a perimeter around a large section of woods and deployed a canine, Max, to track human sent in the area. Following...
There was no fatal variance in a possession of burglar’s tools indictment. The indictment identified the tools as a prybar and bolt cutters. The trial court instructed the jury that it could find the defendant guilty if he possessed either a prybar, bolt cutters, or work gloves. The court held...
The trial court did not err by denying the defendant’s motion to suppress filed under G.S. 15A-980. The defendant argued for suppression of a conviction used in two habitual misdemeanor assault indictments on grounds that it was obtained in violation of his right to counsel. At hearing on the...
Because an officer violated the defendant’s fourth amendment rights by searching the curtilage of his home without a warrant, the trial court erred by denying the defendant’s motion to suppress. The officer saw a vehicle with its doors open at the back of a 150-yard driveway leading to the...
The evidence was sufficient to support a conviction for assault on a government officer under G.S. 14-33(c)(4). While attempting to separate the defendant from other individuals, the defendant spit at people walking behind the officer, hitting the officer with his spit. The defendant argued that...
(1) The evidence was insufficient to convict the defendant of breaking or entering into a place of religious worship. The defendant was alleged to have broken into a place of religious worship used by Vision Phase III International Outreach Center (“Vision”), a church engaged in international...
Because an officer violated the defendant’s fourth amendment rights by searching the curtilage of his home without a warrant, the trial court erred by denying the defendant’s motion to suppress. The officer saw a vehicle with its doors open at the back of a 150-yard driveway leading to the...
In this armed robbery case, the trial court did not err by admitting photographs for illustrative purposes. The photographs were admitted solely to illustrate the testimony of witnesses and the trial court appropriately instructed the jury. The court rejected the defendant’s argument that...
Because an officer violated the defendant’s fourth amendment rights by searching the curtilage of his home without a warrant, the trial court erred by denying the defendant’s motion to suppress. The officer saw a vehicle with its doors open at the back of a 150-yard driveway leading to the...
(1) There was no fatal defect in an indictment charging the defendant with injury to personal property. The defendant asserted that the indictment was invalid because it failed to allege that the owner, a church, as an entity capable of owning property. In State v. Campbell, 368 N.C. 83...
By failing to assert a claim of fatal variance between the indictment and the evidence with respect to a charge of injury to personal property, the defendant failed to preserve the issue for appellate review. Nevertheless, the court considered the issue and rejected the defendant’s claim. The...
In this assault on a government officer case, no Brady violation occurred when recordings from police body cameras were reviewed by the defendant’s original trial counsel and then destroyed pursuant to the police department’s evidence retention schedule. The defendant’s original trial...
The evidence was sufficient to convict the defendant of felony breaking or entering a building. The court rejected the defendant’s argument that the evidence showed only his presence at the scene, noting, among other things, that responding to a possible break-in, officers found the defendant...
The evidence was sufficient to establish that the defendant constructively possessed two stolen firearms found in a van he had rented. The defendant was convicted of two counts of possession of stolen goods in violation of G.S. 14-71.1. The weapons in question were stolen during two separate...
Rejecting the defendant’s ineffective assistance of counsel claim with respect to his first-degree felony murder conviction, the court also rejected the proposition that a felony murder conviction cannot be predicated on a felony of shooting into occupied property where that felony also was the...
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 defendant entered three convenience stores with his face covered and a gun in his hand and stole money in the presence of the store clerks. The...
There was no fatal variance in a larceny by employee indictment where the indictment alleged that the defendant’s employer was “Precision Auto Care, Inc. (PACI), a corporation” but the evidence at trial showed the actual name of the corporation to be “Precision Franchising, Inc.” doing business...
A felonious larceny indictment alleging that the defendant took the property of “Pinewood Country Club” was fatally defective. The State conceded that the indictment was defective because it failed to allege that the named victim was an entity capable of owning property. The court noted however...
A felonious larceny indictment alleging that the defendant took the property of “Pinewood Country Club” was fatally defective. The State conceded that the indictment was defective because it failed to allege that the named victim was an entity capable of owning property. The court noted however...
In this larceny by employee case, the trial court did not err by admitting 404(b) evidence. The charges arose out of a 2014 incident in which the defendant, a manager of an auto shop, kept for himself cash paid by a customer for auto repairs. At trial, an officer testified that in 2010 he...
There was no fatal variance in a larceny by employee indictment where the indictment alleged that the defendant’s employer was “Precision Auto Care, Inc. (PACI), a corporation” but the evidence at trial showed the actual name of the corporation to be “Precision Franchising, Inc.” doing business...
There was sufficient evidence to convict the defendant of larceny by employee. The victim brought her vehicle in for repairs at an auto shop. The defendant, who was the shop manager, provided an estimate for the work, which the victim accepted. When she was told her vehicle was ready, the victim...
A felonious larceny indictment alleging that the defendant took the property of “Pinewood Country Club” was fatally defective. The State conceded that the indictment was defective because it failed to allege that the named victim was an entity capable of owning property. The court noted however...
In this assault and discharging a firearm into occupied property case, the trial court did not abuse its discretion by providing a jury instruction on flight. The defendant fired his weapon at the victims as a vehicle carrying the defendant sped from a gas station. The court rejected the...
In this case involving a larceny from a country club, the Confrontation Clause was not violated when the trial court admitted evidence that the owners of the country club received an anonymous phone call providing information about the perpetrator. The trial court admitted the statement with a...
In this larceny by employee case, the trial court did not err by admitting 404(b) evidence. The charges arose out of a 2014 incident in which the defendant, a manager of an auto shop, kept for himself cash paid by a customer for auto repairs. At trial, an officer testified that in 2010 he...
The trial court did not err by denying the defendant’s motion to dismiss a charge of attempting to obtain property by false pretenses. After an officer learned about larcenies of Michael Kors items from a local store, he found an online posting for similar items in an online flea market. Using a...
Although the trial court erred by allowing the introduction of evidence regarding the defendant’s attempts to hire legal counsel prior to his arrest, the error did not rise to the level of plain error. On appeal, the defendant argued that admission of this testimony violated his Six Amendment...
Where the defendant was in possession of a bag containing two separate Schedule I controlled substances, Methylone and 4-Methylethcathinone, two convictions were proper. Noting that it had already rejected the argument advanced by the defendant in another case, the court held that the defendant...
In this child sexual assault case, the court upheld the defendant’s conviction, obtained after a bench trial. (1) The court rejected the defendant’s argument that the trial court lacked authority to try him without a jury. The defendant asserted that the statute allowing a jury trial waiver...
The trial court did not err by denying the defendant’s motion to dismiss a charge of attempting to obtain property by false pretenses. After an officer learned about larcenies of Michael Kors items from a local store, he found an online posting for similar items in an online flea market. Using a...
In this DWI case, the trial court erred by admitting retrograde extrapolation testimony by the State’s expert witness. That expert used the defendant’s 0.07 blood alcohol concentration 1 hour and 45 minutes after the traffic stop to extrapolate that the defendant had a blood alcohol...
In this misdemeanor child abuse case, where the defendant hit his son with a paddle, the trial court committed reversible error with respect to the jury instructions. After the defendant paddled his 10-year-old son for refusing to eat at the family dinner table, the child experienced bruising...
In this child sexual assault case, the court rejected the defendant’s argument that his confession was obtained in violation of Miranda. During an interview at the sheriff’s department, the defendant admitted that he had sex with the victim. The transcript and videotape of the interview...
The defendant’s sentence of life imprisonment with the possibility of parole after a term of 25 years does not violate the Eighth Amendment under Miller v. Alabama, 132 S. Ct. 2455 (2012). As a 15-year-old, the defendant was charged with first-degree murder. He was found guilty under...
In this arson case, the trial court properly admitted 404(b) evidence to show the defendant’s intent. The evidence in question pertained to another arson which was sufficiently similar to the incident in question. Both arsons occurred in the same town during nighttime hours and involved the same...
In this drug case, a search warrant application relying principally upon information obtained from a confidential informant was sufficient to support a magistrate’s finding of probable cause and a subsequent search of the defendant’s home. The court rejected the defendant’s argument that the...
In this case involving armed robbery and other charges, the trial court erred by allowing an officer to testify that when the victim provided a statement he “seemed truthful.” The error however did not rise to the level of plain error. At trial, the prosecutor asked the officer to describe the...
The State conceded, and the court held, that the indictment was insufficient to support a conviction for discharging a firearm within an enclosure to incite fear. The indictment improperly alleged that the defendant discharged a firearm “into” an occupied structure; the statute, G.S. 14-34.10,...
(1) The evidence was sufficient to support a conviction for conspiracy to traffic in opium by sale and delivery. The defendant was indicted on multiple drug offenses arising from three separate controlled buys. On appeal the defendant argued that the State failed to present evidence, aside from...
For reasons discussed in the court’s opinion, the court held that it lacked jurisdiction to hear the State’s appeal of the defendant’s motion to suppress and that the superior court erred when it remanded the case to the district court with instructions to dismiss.
In this arson case, the evidence was not sufficient to entitle the defendant to a voluntary intoxication instruction. While the evidence showed that the defendant was intoxicated at the time in question, there was no evidence about how much alcohol she had consumed or about the length of time...
In this drug case, officers did not offer improper opinion testimony. The defendant argued that the officers’ testimony constituted improper opinion testimony as to the defendant’s guilt. Both officers testified about the defendant’s conduct and how it related, in their experience, to activity...
The trial court did not err by allowing a witness to testify that after the incident in question and while she was incarcerated, a jailer told her that the defendant was in an adjacent cell. The defendant argued that because the jailer did not testify at trial, this was inadmissible hearsay. The...
In this case involving armed robbery and other charges, the trial court erred by assessing a fee against the defendant for the State’s expert witness. The expert medical witness testified regarding treatment he administered to the victim. The trial court ordered that the defendant, as a...
In this child abuse case the trial court erred by allowing the State to amend the indictment. The defendant was indicted for negligent child abuse under G.S. 14-318.4(a5) after police discovered her unconscious in her apartment with track marks on her arms and her 19-month-old child exhibiting...
The trial court erred by assessing one prior record level point because the offense was committed while the offender was on probation, parole, or post-release supervision where the State did not give notice of its intent to seek this point. Including a prior record level worksheet in discovery...
In this drug case, the trial court did not err by allowing an officer to testify about information collected from a non-testifying witness during an investigation. The statement was not offered for its truth but rather to explain the officer’s subsequent conduct and how the investigation of the...
In this armed robbery case, there was sufficient evidence that the defendant committed a taking from the victim’s person or presence. The evidence showed that the defendant and three other men entered a building in the early morning. The armed intruders ordered the occupants to lie face-down on...
The evidence was insufficient to support convictions of felony larceny from the person. Items were stolen from the victims’ purses while they were sleeping in a hospital waiting room. At the time the items were stolen, the purses were not attached to or touching the victims. The court rejected...
The court rejected the defendant’s claim that counsel was ineffective by failing to object to the admission of his statement to an officer that the cocaine in question belonged to him and not a passenger in the vehicle; the court rejected the defendant’s argument that the statements were...
The evidence was sufficient to support a charge of conspiracy to possess stolen goods, a pistol. After the defendant took the pistol and other items from the victims’ purses, the pistol was found in the field near a residence. The defendant’s alleged accomplice was present at the residence and...
Reasonable suspicion supported the stop. An officer patrolling a “known drug corridor” at 4 am observed the defendant’s car stopped in the lane of traffic. An unidentified pedestrian approached the defendant’s car and leaned in the window. The officer found these actions to be indicative of a...
No violation of the defendant’s speedy trial right occurred. The court began by finding that the delay of two years and 10 months was extensive enough to trigger consideration of the other speedy trial factors. Rejecting the defendant’s argument to the contrary, the court held that with respect...
Reasonable suspicion supported the stop. An officer patrolling a “known drug corridor” at 4 am observed the defendant’s car stopped in the lane of traffic. An unidentified pedestrian approached the defendant’s car and leaned in the window. The officer found these actions to be indicative of a...
The court rejected the defendant’s claim that counsel was ineffective by failing to object to the admission of cocaine found during an officer’s warrantless search of the defendant’s vehicle; the court rejected the defendant’s argument that the State was required to prove that the defendant’s...
The court rejected the defendant’s argument that one of the larceny convictions had to be arrested because both occurred as part of a single continuous transaction. The court reasoned that where the takings were from two separate victims, the evidence supported two convictions.
The trial court did not err by ordering the defendant to pay a $1000 fine as part of her sentence upon a conviction for assault by strangulation. North Carolina statutes provide that a person who has been convicted of a crime may be ordered to pay a fine as provided by law and that unless...
Over a dissent, the court held that it had jurisdiction to consider the defendant’s appeal under G.S. 15A-1444(e). After the trial court announced the sentence in open court, defense counsel indicated that the defendant would like to strike her plea because she would like “to take it to trial.”...
In this second-degree murder case, the trial court did not err by sentencing the defendant as a Class B1 felon. The defendant argued that the trial court erred because the jury returned a general verdict that failed to specify whether he had been found guilty of a Class B1 or B2 felony. The...
The trial court did not err by denying the defendant’s post-sentence motion to withdraw her guilty plea. On appeal the defendant argued that the trial court erred by denying her motion because the plea agreement and plea colloquy contained no indication that a fine would be imposed as part of...
In this drug case, a search warrant was properly supported by probable cause. At issue was whether a confidential informant was sufficiently reliable to support a finding of probable cause. The affidavit noted that the confidential informant was familiar with the appearance of illegal narcotics...
(1) During closing statements to the jury, the prosecutor did not impermissibly comment on the defendant’s failure to take the stand. In context, the prosecutor’s statements summarized the evidence before the jury and asserted that no evidence was presented to support defense counsel’s...
As conceded by the State, the trial court erred by resentencing the defendant to a sentence greater than that provided for in his plea agreement without giving the defendant an opportunity to withdraw his plea, as required by G.S. 15A-1024.
In this assault inflicting serious injury case, the evidence was sufficient for a bulletproof vest sentencing enhancement. The victim testified that when he punched the defendant’s chest, it felt padded; the victim told two police officers that both attackers wore bulletproof vests; and when the...
After the defendant’s arrest for impaired driving, officers properly searched his vehicle as a search incident to arrest. Applying Arizona v. Gant, the court found that the officer had a reasonable basis to believe that evidence of impaired driving might be found in the vehicle. The...
The trial court’s jury instruction regarding the bulletproof vest enhancement was not improper. The defendant argued that the trial court erred by instructing the jury that it could find this enhancement if it found that he wore or had in his immediate possession a bulletproof vest. The...
In this drug case, a new trial was required where character evidence was improperly admitted. When cross-examining the defendant’s witness, the prosecutor elicited testimony that the defendant had been incarcerated for a period of time. The court viewed this testimony as being equivalent to...
(1) During closing statements to the jury, the prosecutor did not impermissibly comment on the defendant’s failure to take the stand. In context, the prosecutor’s statements summarized the evidence before the jury and asserted that no evidence was presented to support defense counsel’s...
In a case involving attempted murder and other charges, the defendant was not entitled to a jury instruction on the defense of accident. The defendant testified that his gun discharged accidentally during the fight with the victim. The evidence, however, even considered in the light most...
In a case where the trial was delayed because of backlogs at the crime lab and because of issues with counsel, the trial court properly denied the defendant’s speedy trial motion, made shortly before trial. Applying the Barker v. Wingo four-part speedy trial analysis, the court began by...
In this drug case, a new trial was required where character evidence was improperly admitted. When cross-examining the defendant’s witness, the prosecutor elicited testimony that the defendant had been incarcerated for a period of time. The court viewed this testimony as being equivalent to...
In this drug case, an officer lawfully approached the front of the defendant’s home and obtained information that was later used to procure a search warrant. Specifically, he heard a generator and noticed condensation and mold, factors which in his experience and training were consistent with...
The court vacated the defendant’s attempted murder conviction on double jeopardy grounds. The defendant was originally charged and indicted for attempted murder of his wife. After the trial began, the trial court, over the defendant’s objection, ruled that the indictment was fatally defective...
The State failed to introduce sufficient evidence of sexual battery. The 13-year-old juvenile was adjudicated delinquent in part based on two counts of sexual battery against two 11-year-old female schoolmates. It was alleged that he draped his arms around the girls’ shoulders in order to smear...
The trial court did not err by denying the defendant’s motion to suppress in this DWI case. The defendant had argued that the arresting officer failed to comply with the requirements of G.S. 20-16.2. Specifically, the defendant asserted that he was not adequately informed of his rights under the...
The evidence was sufficient to sustain a charge of assault with a deadly weapon inflicting serious injury based on a theory of acting in concert. It was undisputed that the victim sustained serious injury; the only real issue was whether the evidence was sufficient to allow a reasonable...
In this child sexual assault case, the trial court did not err by precluding the defendant from cross-examining the State’s expert witness about information in the treatment records regarding the child’s sexual activity with partners other than the defendant. The defendant unsuccessfully sought...
In this child sexual assault case, even if the trial court erred by denying the defendant’s request to admit into evidence three letters to the editor written by the State’s expert witness and published in a newspaper 10 years before the expert’s interview with the child in question, the error...
In this drug case, there was insufficient evidence of constructive possession. Officers responded to a report of a breaking and entering at a residence. They heard a commotion inside and noticed smoke coming from the house. Two men, Robert McEntire and the defendant, left through the front door...
In this drug case, the trial court committed plain error by instructing the jury on the theory of acting in concert. The State presented no evidence that the defendant had a common plan or purpose to possess the contraband with his alleged accomplice, McEntire. At most, the evidence showed that...
In this impaired driving case, the defendant was not seized within the meaning of the fourth amendment until he submitted to the officer’s authority by stopping his vehicle. The court rejected the defendant’s argument that the seizure occurred when the officer activated his blue lights. Because...
In this appeal from the trial court’s order imposing SBM, the court rejected the defendant’s argument that the state’s SBM laws are facially unconstitutional but remanded for a determination of the reasonableness of the imposition of SBM. Before the trial court, the defendant argued that...
In this impaired driving case, the court held, over a dissent, that the trial court properly denied the defendant’s motion to suppress where no seizure occurred. An officer went to a residence to find a man who had outstanding warrants for his arrest. While walking towards the residence, the...
In this murder case, although the trial court erred by making comments prior to closing arguments suggesting to the jury that it would be futile to request to review witness testimony, the error was not prejudicial. The trial judge had stated:
When you go back and start...
In this child sexual assault case, the court rejected the defendant’s argument that the trial court erred by permitting certain testimony by the State’s experts because of a discovery violation. The experts included Blair Cobb, a licensed clinical social worker and pediatric therapist who...
The evidence was insufficient with respect to the maintaining a dwelling charge. There was no evidence that the defendant was the owner or lessee of the residence, there was no evidence that he paid for its utilities or upkeep, there was no evidence that he had been seen in or around the...
The vehicle stop was supported by reasonable suspicion. An officer received an anonymous report that a drunk driver was operating a black, four-door Hyundai headed north on Highland Capital Boulevard. The officer located the vehicle as reported and observed that the defendant drove roughly 15...
Exigent circumstances justified the officers’ warrantless entry into the defendant’s home to arrest him. It was undisputed that the officers had reasonable suspicion to stop the defendant for driving while license revoked. They pulled into the defendant’s driveway behind him and activated blue...
In this impaired driving case, the defendant was not seized within the meaning of the fourth amendment until he submitted to the officer’s authority by stopping his vehicle. The court rejected the defendant’s argument that the seizure occurred when the officer activated his blue lights. Because...
In this drug case, the trial court erred by denying the defendant’s motion to suppress drug evidence seized after a traffic stop where the officer had no reasonable suspicion to stop the defendant’s vehicle. Officers received a tip from a confidential informant regarding “suspicious” packages...
In this DWI case, the trial court erred by denying the defendant’s motion to exclude an officer’s Horizontal Gaze Nystagmus (“HGN”) testimony and allowing the officer to testify about the results of the HGN test without qualifying him as an expert under Rule 702. Citing State v. Godwin...
The trial court did not err by applying G.S. 8-57.1 (husband-wife privilege waived in child abuse) in this child abuse case. The defendant asserted that the trial court erred by admitting privileged evidence about consensual sexual activity between the defendant and his wife. Specifically, he...
In this DWI case, the district court properly dismissed the charges sua sponte. After the district court granted the defendant’s motion to suppress, the State appealed to superior court, which affirmed the district court’s pretrial indication and remanded. The State then moved to...
In this DWI case, the superior court properly dismissed the State’s notice of appeal from a district court ruling granting the defendant’s motion to suppress where the State’s notice of appeal failed to specify any basis for the appeal. Although such a notice may be sufficient for an appeal to...
In this drug case, the trial court erred by denying the defendant’s motion to suppress drug evidence seized after a traffic stop where the officer had no reasonable suspicion to stop the defendant’s vehicle. Officers received a tip from a confidential informant regarding “suspicious” packages...
In this child abuse case, the trial court did not abuse its discretion by admitting evidence regarding consensual sexual activity between the defendant and his wife. Here, after the child described to the wife a sexual act performed by the defendant, the wife signed a statement indicating that...
In this DWI case, the district court properly dismissed the charges sua sponte. After the district court granted the defendant’s motion to suppress, the State appealed to superior court, which affirmed the district court’s pretrial indication and remanded. The State then moved to...
(1) Counsel did not render ineffective assistance by failing to object to a witness’s expert testimony. The expert testified that the fire was intentionally set with the use of an accelerant. The defendant’s trial defense did not challenge this issue but rather focused on whether the State had...
Mistake of age and consent are not defenses to statutory rape.
The indictment properly charged the defendant with burning of a building in violation of G.S. 14-62. The indictment alleged that the “defendant . . . unlawfully, willfully and feloniously did set fire to, burn, cause to be burned and aid the burning” of a specified building. The court rejected...
The trial court erred by ordering the defendant to pay $5,000 in restitution where no evidence supported that award. Only an unsworn statement by the prosecutor was offered in support of the restitution award.
(1) Over a dissent, the court held that the trial court properly conducted a de novo sentencing hearing on remand from the appellate division. Notwithstanding the fact that the new sentence was the same as the original sentence, the court rejected the defendant’s argument that the trial court...
In this burning of a building case, the trial court did not commit plain error by allowing Investigator Gullie to offer expert opinion testimony. Investigator Gullie testified at trial without objection. Noting the procedural posture of the case, the court stated:
In...
In this kidnapping and rape case, the defendant’s confrontation rights were not violated when the trial court admitted, for the purposes of corroboration, statements made by deceased victims to law enforcement personnel. The statements were admitted to corroborate statements made by the victims...
In this robbery case, the trial court did not err by denying the defendant’s motion to withdraw his guilty plea. Shortly after the jury was empaneled, the defendant decided to enter into a plea arrangement with the State. In exchange for his guilty plea, the defendant received a PJC, apparently...
The court reversed and remanded the trial court’s order imposing lifetime SBM. The trial court erred by finding that the defendant was a recidivist where the only evidence presented by the State was the oral statement of the prosecutor that the defendant had obtained reportable offenses in 1989...
(1) In this methamphetamine trafficking case, the trial court erred by denying the defendant’s motion to suppress evidence seized during execution of a search warrant. Noting that a factual showing sufficient to support probable cause “requires a truthful showing of facts,” the court rejected...
There was a sufficient factual basis to support the defendant’s guilty plea to robbery charges. The defendant stipulated that a factual basis existed to support his guilty plea and then stipulated to the State’s summary of the factual basis which it provided to the trial court. After the State...
(1) In this methamphetamine trafficking case, the trial court erred by denying the defendant’s motion to suppress evidence seized during execution of a search warrant. Noting that a factual showing sufficient to support probable cause “requires a truthful showing of facts,” the court rejected...
In this kidnapping and rape case, the defendant’s confrontation rights were not violated when the trial court admitted, for the purposes of corroboration, statements made by deceased victims to law enforcement personnel. The statements were admitted to corroborate statements made by the victims...
The trial court lacked jurisdiction to reconsider the petitioner’s request to terminate sex offender registration where the State failed to oppose termination at the initial hearing and did not appeal the initial order. At the initial hearing the trial court granted the defendant’s motion to...
The trial court did not abuse its discretion by denying the defendant’s motion seeking funds to hire an expert to retest DNA samples in this rape and kidnapping case. Prior to trial, the defendant retained an expert to review DNA testing done by the State’s DNA expert. Although the defendant’s...
In this robbery case, the court rejected the defendant’s argument that the trial court erred by denying his motion to suppress statements to a police officer during an interrogation outside of the presence of his parent. Notwithstanding an issue about how the Juvenile Waiver of Rights Form was...
A drug trafficking defendant who pled guilty and was sentenced pursuant to a plea agreement allowing for a sentence greater than that provided for in the applicable drug trafficking statute was entitled to have the plea agreement set aside on this basis.
A drug trafficking defendant who pled guilty and was sentenced pursuant to a plea agreement had no right to appeal the sentence, which was greater than that allowed by the applicable statute at the time. G.S. 15A-1444 allows for appeal after a guilty plea for terms that are unauthorized under...
The trial court committed plain error in this safecracking case by instructing the jury that it could convict the defendant if it determined that he obtained the safe combination “by surreptitious means” when the indictment charged that he committed the offense by means of “a fraudulently...
The trial court did not commit plain error by admitting store surveillance video in a safecracking case. Citing State v. Snead, 368 N.C. 811 (2016), the court held that the surveillance video was properly authenticated. The store manager testified that the surveillance system included...
In this sexual exploitation of a minor case, the information contained in an officer’s affidavit was sufficient to provide probable cause for issuance of a search warrant for child pornography. In this case, an officer and certified computer forensic examiner identified child pornography through...
The trial court did not err by denying the defendant’s Batson challenges in this capital case. The two victims and the eyewitness were Palestinian and the defendant was black. The State exercised a peremptory strike against Juror 2, a black male. When questioned about the death penalty...
An officer had probable cause to arrest the defendant for DWI. After the officer stopped the defendant’s vehicle, he smelled a moderate odor of alcohol coming from the defendant and noticed that the defendant’s eyes were red and glassy. Upon administration of an HGN test the officer observed...
The trial court did not err by sentencing the defendant as a PRL IV offender. The State used the defendant’s prior Michigan conviction at the default level as a Class I felony. On appeal the defendant argued that since the prior record level worksheet did not clearly show that the Michigan...
The defendant was properly required to register as a sex offender and submit to SBM. Although the trial court mistakenly found that the defendant had been convicted of an offense against a minor, the error was clerical where other findings were made that would require the defendant to register...
The trial court erred by denying the defendant’s motion to suppress where a stop was based on an officer’s mistake of law that was not objectively reasonable. An officer stopped a vehicle registered in Tennessee for driving without an exterior mirror on the driver’s side of the vehicle. The...
The trial court did not err by denying the defendant final closing arguments in this DWI case. Rule 10 of the General Rules of Practice for the Superior and District Courts provides that “if no evidence is introduced by the defendant, the right to open and close the argument to the jury shall...
The trial court did not err by denying the defendant’s motion to dismiss a DWI charge. Here, after the officer stopped the defendant’s vehicle, he noticed a moderate amount of alcohol coming from the defendant’s breath, the defendant had red and glassy eyes, the defendant admitting to consuming...
(1) In this sexual assault case, the trial court did not err by excluding the defendant’s evidence that the victim had previously been sexually active that her parents punished her for this activity. The defendant did not argue that the victim’s past sexual activity was admissible under one of...
Where the State’s evidence was positive and uncontroverted as to whether a weapon used during an armed robbery was in fact a dangerous weapon and there was no evidence from which a rational juror could find that the weapon was anything other than a dangerous one, no error occurred when the trial...
In this child sexual assault case, the court rejected the defendant’s argument that the defendant’s wife improperly testified as to the defendant’s exercise of his constitutional right to remain silent after arrest. The defendant pointed to the witness’s answer to a question about whether she...
In this child sexual assault case, the trial court did not commit plain error by allowing the defendant’s wife to testify regarding “red flags” that she should have seen earlier regarding the defendant’s conduct with the victim. In context, the witness was not offering an opinion as to the...
Where a plea agreement contemplated that the defendant would be sentenced to community punishment and the trial court indicated that it was so sentencing the defendant, the court remanded for correction of a clerical error in the judgment stating that the sentence was an intermediate one.
Although statements made by a law enforcement officer during a videotaped interrogation of the defendant were not relevant, the defendant failed to show prejudice warranting a new trial. The court distinguished cases holding that statements by a law enforcement officer during a videotaped...
In this kidnapping and sexual assault case, the evidence was sufficient to establish confinement or restraint for purposes of kidnapping that was separate and apart from the force necessary to facilitate the sexual offense. Here, the defendant forced the victim into his car after he had...
In this drug case, the court rejected the defendant’s argument that the trial court erred by denying his motion to suppress evidence collected from his residence on the grounds that the inventory list prepared by the detective was unlawfully vague and inaccurate in describing the items seized....
(1) In this drug case, testimony from the State’s expert sufficiently established a trafficking amount of opium (over 4 grams). Following lab protocol, the forensic analyst grouped the pharmaceutically manufactured pills seized into four categories based on their unique physical characteristics...
In this child sexual assault case, the trial court did not commit plain error by allowing the defendant’s wife to testify regarding “red flags” that she should have seen earlier regarding the defendant’s conduct with the victim. In context, the witness was not offering an opinion as to the...
(1) In this child sexual assault case, the trial court did not err by failing to find the mitigating factor that the defendant successfully completed a substance abuse program. Because the defendant completed the program prior to his arrest, his participation in it did not meet the requirements...
In this armed robbery case, the evidence was sufficient to establish that the defendant used a dangerous weapon in a way that endangered the victim. A store loss prevention officer questioned the defendant about having taken some store jewelry in the store foyer. During the exchange, the victim...
The trial court did not err by assigning points for two out-of-state felony convictions. “[B]ecause defendant stipulated to his prior record and the prosecutor did not seek to assign a classification more serious than Class I to his out-of-state convictions for second-degree burglary and...
Because the trial court resentenced the defendant to a longer prison sentence without him being present, the court vacated and remanded for resentencing. After the defendant was sentenced, the Division of Adult Correction notified the court that the maximum prison term imposed did not correspond...
The evidence supported sentencing the defendant as a PRL II offender where defense counsel’s lack of objection to the PRL worksheet, despite the opportunity to do so, constituted a stipulation to the defendant’s prior felony conviction.
Over a dissent the court held that the evidence was insufficient to support a conviction for armed robbery where it consisted of a single partial fingerprint on the exterior of a backpack worn by the victim at the time of the crime and that counsel rendered ineffective assistance by failing to...
There was sufficient evidence to sentence the defendant as a PRL IV offender. Defense counsel stipulated to the defendant’s prior record level as stated on the prior record level worksheet where counsel did not dispute the prosecutor’s description of the defendant’s prior record or raise any...
The evidence was sufficient to support a conviction for possession of stolen property. The defendant challenged only the sufficiency of the evidence that he knew or had reasonable grounds to believe that the items were stolen. Here, the defendant had possession of stolen property valued at more...
The trial court erred by sentencing the defendant as a habitual felon where the defendant stipulated to his habitual felon status but did not enter a plea to that effect. The trial court’s colloquy with the defendant failed to comply with G.S. 15A-1022.
Over a dissent the court held that the evidence was insufficient to support a conviction for armed robbery where it consisted of a single partial fingerprint on the exterior of a backpack worn by the victim at the time of the crime and that counsel rendered ineffective assistance by failing to...
In this drug case, the trial court properly denied a motion to suppress where no illegal seizure of the defendant occurred during a knock and talk and where exigent circumstances justified the officers’ warrantless entry into the defendant’s home. The court rejected the defendant’s argument that...
Applying the Daubert standard, the court held that the trial court improperly allowed a medical examiner to testify that the victim’s death was a homicide, when that opinion was based not on medical evidence but rather on non-medical information provided to the expert by law enforcement...
In this murder and possession of a firearm by a felon case, the trial court did not commit plain error by allowing the admission of an investigator’s testimony concerning the defendant’s demeanor. At trial, the investigator, who had interviewed the defendant, was asked to clarify why he thought...
The trial court properly denied the defendant’s motion to dismiss a first-degree kidnapping charge. The defendant did not leave the victim in a safe place where he dragged her to the middle of a gravel driveway and left her, unconscious and injured. The defendant did not consign her to the care...
In this attempted felony breaking or entering and habitual felon case, the trial court did not err by denying the defendant’s request to instruct the jury on duress. To be entitled to an instruction on duress, a defendant must present evidence that he feared he would suffer immediate death or...
There was sufficient evidence of conspiracy to commit armed robbery. Although circumstantial, the evidence supported the inference that the defendant and his accomplices agreed to commit the robbery and other unlawful acts.
The trial court did not err by imposing consecutive sentences for multiple findings of contempt. The trial court had sentenced the defendant to six consecutive 30-day terms of imprisonment based on six findings of direct criminal contempt.
In this second-degree sex offense case, the court vacated and remanded for entry of judgment on attempted sexual offense where the indictment charged the defendant only with an attempted, not a completed, sex offense. The indictment, labeled “Second Degree Sexual Offense,” alleged that the...
In this drug case, the court held, deciding an issue of first impression, that an odor of marijuana emanating from inside a vehicle stopped at a checkpoint did not provide an officer with probable cause to conduct an immediate warrantless search of the driver. The defendant was driving the...
In this attempted felony breaking or entering and habitual felon case, the court rejected the defendant’s argument that he received ineffective assistance of counsel because his trial counsel did not attempt to introduce certain items into evidence. The defendant failed to show that counsel’s...
In this drug case, the court held that the defendant’s consent to search his room in a rooming house was voluntarily given. The court rejected the defendant’s argument that he was in custody at the time consent was given. There was no evidence that the defendant’s movements were limited by the...
The court rejected the defendant’s argument that the trial court erred by admitting his medical records into evidence. The court began by rejecting the defendant’s argument that under the plain language of the physician-patient privilege statute, G.S. 8-53, disclosure of a patient’s medical...
In this sex offense case, the court rejected the defendant’s argument that he received ineffective assistance of counsel when counsel failed to object to 404(b) evidence that was properly admitted.
Although the trial court erred by admitting victim impact evidence during the guilt-innocence phase of the trial, in light of the extensive evidence of the defendant’s guilt, the error did not constitute plain error.
The trial court properly denied the defendant’s motion to dismiss a first-degree kidnapping charge. There was sufficient evidence that the defendant removed the victim for the purpose of terrorizing her where multiple witnesses heard the defendant threaten to kill her in broad daylight. The...
The trial court properly denied the defendant’s motion to dismiss a first-degree kidnapping charge. The restraint of the victim was not inherent in the also charged offense of assault by strangulation. The evidence showed two separate, distinct restraints sufficient to support the two offenses....
(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of discharging a firearm into occupied property. The trial court improperly instructed the jury that it had to find that the defendant knew or had reasonable grounds to believe that the dwelling was ...
The court rejected the defendant’s argument that two photos from a photo line-up were irrelevant. The victims had identified the photographs during a photo lineup as depicting the perpetrator. The photographs were admitted as substantive evidence and published to the jury at trial without...
In this drug case, the trial court did not abuse its discretion by admitting expert testimony identifying the substance at issue as marijuana. At trial, Agent Baxter, a forensic scientist with the N.C. State Crime Lab, testified that she examined the substance, conducted relevant tests, and that...
The trial court did not commit plain error by failing to instruct the jury on first-degree trespass as a lesser-included of breaking or entering a motor vehicle. Although the defendant argued that he may have broken into the vehicle in order to sleep and thus lacked the intent to commit a...
The court rejected the defendant’s argument that the trial court committed plain error by requiring a jury to deliberate for an unreasonable length of time. Jury deliberations began at 2:15 pm. At 8:43 pm the jury sent a note indicating that it was deadlocked. Several minutes later, and with...
In this second-degree sex offense case, the court vacated and remanded for entry of judgment on attempted sexual offense where the indictment charged the defendant only with an attempted, not a completed, sex offense. The indictment, labeled “Second Degree Sexual Offense,” alleged that the...
The trial court did not err by denying the defendant’s motion to suppress as untimely under G.S. 15A-976 where the defendant failed to file the motion within the requisite time following receipt of the State’s notice.
The trial court properly denied the defendant’s motion to dismiss a first-degree kidnapping charge. The trial court did not err by failing to instruct the jury on the lesser-included offense of false imprisonment where substantial evidence showed that the defendant threatened and terrorized the...
In this drug case, the trial court properly denied a motion to suppress where no illegal seizure of the defendant occurred during a knock and talk and where exigent circumstances justified the officers’ warrantless entry into the defendant’s home. The court rejected the defendant’s argument that...
In this impaired driving case, the trial court erred by denying the defendant’s motion to suppress, which had asserted that a checkpoint stop violated his constitutional rights. When considering a constitutional challenge to a checkpoint, a two-part inquiry applies: the court must first...
Because the trial court did not depart from the presumptive range in sentencing the defendant, it was not required to make any findings regarding mitigation. The court rejected the defendant’s argument that the trial court erroneously failed to “consider” evidence of mitigating factors proved by...
The trial court properly denied the defendant’s motion to dismiss a first-degree kidnapping charge. The defendant did not leave the victim in a safe place where he dragged her to the middle of a gravel driveway and left her, unconscious and injured. The defendant did not consign her to the care...
The trial court properly revoked the defendant’s probation, where the defendant committed a new crime while on probation.
In this kidnapping case, there was sufficient evidence that the defendant failed to release the victim in a safe place. The defendant left the victim in a clearing in the woods located near, but not easily visible from, a service road that extended off an interstate exit ramp. The area was...
In this child abuse case, the trial court did not err by using the term “handling” to describe the element of intentional assault that was part of the child abuse charge. The trial court’s instruction was sufficient to explain the term assault as it related to the case.
Where in the course of one instance the defendant exposed himself to multiple people, one of which was a minor and one of which was an adult, the defendant could not be found guilty of both misdemeanor indecent exposure under G.S. 14-190.9(a) and felonious indecent exposure under G.S. 14-190.9(...
In this second-degree sexual exploitation of a minor case, there was sufficient evidence with respect to the knowledge element of the crime. The court disagreed with the defendant’s argument that there was insufficient evidence tending to show that he was aware of the contents of the...
In this second-degree sexual exploitation of a minor case, there was no fatal variance between the indictments and the evidence presented at trial. The indictments alleged a receipt date of December 17, 2009; the evidence established the date of receipt as October 18, 2009. A variance regarding...
(1) The court rejected the defendant’s argument that the trial court lacked authority to allow him to waive his right to a trial by jury because he was not arraigned before the effective date of the constitutional amendment and statute allowing such a waiver. The new provision on jury trial...
In this child abuse case, the trial court committed prejudicial error by giving a flight instruction where there was no evidence upon which a reasonable theory of flight could be based. The court explained: “what the trial court deemed a ‘close call’ in terms of defendant’s alleged flight...
Although the defendant was in handcuffs at the time of the questioning, he was not, based on the totality of the circumstances, “in custody” for purposes of Miranda. While the defendant was visiting his cousin’s house, a parole officer arrived to search of the cousin’s home. The parole...
(1) The prosecutor’s statement, which was clarified after objection, was not in violation of the law or calculated to mislead or prejudice the jury. After the trial court sustained defense counsel’s objection to the prosecutor’s statement about the victim, “I think she is telling the truth,” the...
(1) In this case in which the defendant was convicted of felony murder with the underlying felony being child abuse, the trial court did not err by denying the defendant’s request to instruct the jury on premeditated and deliberate murder and all lesser included offenses. There was no evidence...
Where the trial court submitted an instruction on automatism as a defense to a charge of felony child abuse, it was not required to instruct the jury on lesser included child abuse offenses. Automatism is a complete defense to a criminal charge and did not render any of the elements of felonious...
In this assault with a deadly weapon case involving two neighbors, the trial court did not err by denying the defendant’s request for an instruction on self-defense. The defendant provoked the confrontation by willingly and voluntarily leaving his property and entering the victim’s property with...
An indictment alleging possession of stolen property was defective where it failed to allege that the property was stolen or that the defendant knew or had reason to believe that it was stolen.
The evidence was sufficient to establish financial transaction card theft. The defendant argued that the evidence was insufficient to prove the took or obtained the victim’s card with the intent to use it. The evidence showed that on the day that the card was stolen someone other than the victim...
In this case where the defendant was convicted of felony murder with the underlying felony being felony child abuse, the court rejected the defendant’s argument that the merger doctrine prevents conviction of first-degree felony murder when there is only one victim and one assault. Although a...
Where the trial court submitted an instruction on automatism as a defense to a charge of felony child abuse, it was not required to instruct the jury on lesser included child abuse offenses. Automatism is a complete defense to a criminal charge and did not render any of the elements of felonious...
Child-abuse under G.S. 14-318.4(a) requires that the defendant intentionally inflict serious physical injury on a child or intentionally commit an assault on the child which results in serious physical injury. These are two separate prongs and the State is not required to prove that the...
In a case in which the defendant was originally charged with habitual impaired driving, driving while license revoked and speeding, the superior court did not have subject matter jurisdiction to try the misdemeanor or the infraction where the State dismissed the felony DWI charge before trial....
On remand, the trial court properly conducted a de novo sentencing hearing.
Invoking Rule 2 of the NC Rules of Appellate Procedure, the court considered emails outside of the record and granted the defendants’ MAR, finding both a Brady violation and a Napue (failure to correct false testimony) violation. Specifically, the State failed to provide...
Although the prosecutor improperly argued to the jury in this armed robbery case that it did not matter whether a shotgun in question was loaded for purposes of determining whether it was a dangerous weapon, the defendant was not prejudiced by this argument where the trial judge properly...
The trial court made clerical errors in sentencing. It made a clerical error when it stated that it was arresting judgment on convictions vacated by the court of appeals; in context it was clear that the trial court meant to state that it was vacating those convictions. The trial court also...
Where the trial court enhanced a DWI sentence based solely on the defendant’s prior convictions, the defendant’s Sixth Amendment rights were not violated. At sentencing, the trial court found the existence of two grossly aggravating factors, i.e., that defendant had two or more convictions...
Invoking Rule 2 of the NC Rules of Appellate Procedure, the court considered emails outside of the record and granted the defendants’ MAR, finding both a Brady violation and a Napue (failure to correct false testimony) violation. Specifically, the State failed to provide...
The evidence was insufficient to support a conviction for altering, stealing, or destroying criminal evidence under G.S. 14-221.1. The charges were based on the defendant’s alleged theft of money obtained from the controlled sale of illegal drugs. The money in question was not evidence as...
Because an affidavit failed to specify when an informant witnessed the defendant’s allegedly criminal activities, there was insufficient evidence establishing probable cause to support issuance of the search warrant. In the affidavit, the officer stated that he received a counterfeit $100 bill...
Where the trial court enhanced a DWI sentence based solely on the defendant’s prior convictions, the defendant’s Sixth Amendment rights were not violated. At sentencing, the trial court found the existence of two grossly aggravating factors, i.e., that defendant had two or more convictions...
An officer had probable cause to arrest the defendant for DWI. The officer responded to a call involving operation of a golf cart and serious injury to an individual. The defendant admitted to the officer that he was the driver of the golf cart. The defendant had “very red and glassy” eyes and “...
Because subarachnoid hemorrhaging constitutes “serious bodily injury,” the evidence was sufficient to convict the defendant of felonious child-abuse inflicting serious bodily injury under G.S. 14-318.4(a3). The court rejected the defendant’s argument that since the child did not actually suffer...
(1) The defendant was not in custody when he gave statements to officers at the hospital. The victim was killed in a robbery perpetrated by the defendant and his accomplice. The defendant was shot during the incident and brought to the hospital. He sought to suppress statements made to police...
(1) Because there was sufficient evidence that the defendant possessed drug paraphernalia, the trial court did not err by denying his motion to dismiss. The paraphernalia was found in plain view in a common living area of a home over which the defendant exercised nonexclusive control. The court...
(1) A stop of the defendant’s vehicle was justified by reasonable suspicion. While on patrol in the early morning, the officer saw the defendant walking down the street. Directly behind him was another male, who appeared to be dragging a drugged or intoxicated female. The defendant and the other...
(1) Because the defendant was handcuffed and placed under arrest, the trial court erred by concluding that the defendant was not in custody when he made a statement to the officer. (2) The defendant was subject to an interrogation when, after handcuffing the defendant, placing him under arrest,...
Because the defendant’s self-serving, exculpatory statement was separate and apart from inculpatory statements he made on other days and that were admitted at trial, the State did not open the door for its admission.
(1) Because the defendant was handcuffed and placed under arrest, the trial court erred by concluding that the defendant was not in custody when he made a statement to the officer. (2) The defendant was subject to an interrogation when, after handcuffing the defendant, placing him under arrest,...
The State presented insufficient evidence to show that the defendant entered into an agreement to commit common law robbery. The mere fact that the crime the defendant allegedly conspired with others to commit took place does not, without more, prove the existence of a conspiracy. Lacking here...
Reasonable suspicion supported the stop of the defendant’s vehicle. The vehicle was stopped after the defendant left premises known as “Blazing Saddles.” Based on his experience making almost two dozen arrests in connection with drug activity at Blazing Saddles and other officers’ experiences at...
(1) The trial court properly admitted a videotape of a detective’s interview with the defendant for illustrative purposes. The detective testified that the video was a fair and accurate description of the interview. This met the requirements for authentication of a video used for illustrative...
The trial court erred by including a prior record level point under G.S. 15A-1340.14(b)(7) where the State did not provide the defendant with notice of intent to prove the existence of the point as required by the statute.
The superior court erred by denying the State a de novo hearing from the district court’s preliminary determination that the defendant’s motion to suppress should be granted. At issue was whether G.S. 20-38.7(a) “requires more than a general objection by the State to the district court judge’s...
The trial court’s order denying the defendant’s motion to suppress in this traffic stop case contained inadequate conclusions of law concerning the validity of the traffic stop. The trial court’s sole conclusion of law is better characterized as a statement of law. A conclusion of law requires...
The court held that the trial court did not err in denying the defendant’s motion to dismiss a charge of felon in possession of a firearm, rejecting the defendant’s argument that there was insufficient evidence establishing that he had constructive possession of the weapon. The evidence showed,...
The defendant’s statements, made during the stop were voluntary and not the result of any custodial interrogation. None of the officers asked or said anything to the defendant to elicit the statement in question. Rather, the defendant volunteered the statement in response to one officer...
The superior court erred by denying the State a de novo hearing from the district court’s preliminary determination that the defendant’s motion to suppress should be granted. At issue was whether G.S. 20-38.7(a) “requires more than a general objection by the State to the district court judge’s...
(1) In this post-Rodriguez case, the court held that because no reasonable suspicion existed to prolong the defendant’s detention once the purpose of a traffic stop had concluded, the trial court erred by denying the defendant’s motion to suppress evidence obtained as a result of a...
The court rejected the defendant’s fatal variance argument regarding injury to real property charges, noting that the North Carolina Supreme Court recently held that an indictment charging this crime need only identify the real property, not its owner.
(1) In this post-Rodriguez case, the court held that reasonable suspicion supported the officer’s extension of the duration of the stop, including: the officer smelled marijuana on the defendant’s person, the officer learned from the defendant him that he had an impaired driving...
The evidence was sufficient to survive the defendant’s motion to dismiss a misdemeanor child abuse charge under G.S. 14-318.2(a). The case arose from an incident in which the defendant left her young child unattended in a vehicle on a cold day. The State proceeded on the theory that she had...
Fatal variance issues not raised at trial are waived on appeal.
In this case involving breaking and entering, larceny and other charges, the trial court did not err by failing to exclude the testimony of two law enforcement officers who identified the defendant in a surveillance video. The officers were familiar with the defendant and recognized distinct...
The trial court did not err by denying the defendant’s request for a jury instruction on the testimony of an interested witness (N.C.P.I.-Crim. 104.20), where it gave a different instruction leaving “no doubt that it was the jury’s duty to determine whether the witness was interested or biased...
The trial court erred by preventing the defendant from making any inquiry into the compensation paid to the State’s expert witness. “The source and amount of a fee paid to an expert witness is a permissible topic for cross-examination, as it allows the opposing party to probe the witnesses’...
Exercising discretion to consider a fatal variance argument with respect to a theft of money and an iPod from a frozen yogurt shop, the court held that a fatal variance existed. The State alleged that the property belonged to Tutti Frutti, LLC, but it actually belonged to Jason Wei, the son of...
In this sexual offense with a child by adult offender case, the State conceded, and the court held, that the trial court violated the defendant’s sixth amendment right to a trial by jury by sentencing him under G.S. 14-27.4A(c) to a term above that normally provided for a Class B1 felony on the...
Following its opinion in Godwin, above, the court held, in this DWI case, that the trial court erred by admitting lay opinion testimony on the results of an HGN test and that a new trial was required.
The evidence was sufficient to support the defendant’s conviction of unlawfully entering property operated as a domestic violence safe house by one subject to a protective order in violation of G.S. 50B-4.1(g1). The evidence showed that the defendant drove his vehicle to shelter, parked his car...
On remand from the NC Supreme Court the court held, in this murder case, that the defendant’s Fifth Amendment rights were not violated. The defendant argued on appeal that the trial court erred in denying his motion to suppress because he invoked his Fifth Amendment right to counsel during a...
The State could appeal the trial court’s order granting the defendant’s MAR.
Because the trial court did not have subject matter jurisdiction to rule on the defendant’s MAR claim alleging a violation of the post-conviction DNA statutes, the portion of the trial court’s order granting the MAR on these grounds is void. The court noted that the General Assembly has provided...
The trial court erred by failing to conduct an evidentiary hearing before granting the MAR. An evidentiary hearing “is not automatically required before a trial court grants a defendant’s MAR, but such a hearing is the general procedure rather than the exception.” Prior case law “dictates that...
In this DWI case, the court held that the trial court did not err by suppressing blood draw evidence that an officer collected from a nurse who was treating the defendant. The trial court had found that no exigency existed justifying the warrantless search and that G.S. 20-16.2, as applied in...
(1) The DMV’s findings support its conclusion that the officer had reasonable grounds to believe that Farrell was driving while impaired. During a traffic stop Farrell refused the officer’s request to take a breath test after being informed of his implied consent rights and the consequences of...
In this drug trafficking case, the officer had reasonable suspicion to extend a traffic stop. After Officer Ward initiated a traffic stop and asked the driver for his license and registration, the driver produced his license but was unable to produce a registration. The driver’s license listed...
The court reversed the defendant’s conviction for possession with intent to sell or deliver methamphetamine, concluding that the State failed to present substantial evidence of constructive possession. The case arose out of a controlled drug buy. However the State’s evidence showed that “at...
(1) In this drug trafficking case, the officer had reasonable suspicion to extend a traffic stop. After Officer Ward initiated a traffic stop and asked the driver for his license and registration, the driver produced his license but was unable to produce a registration. The driver’s license...
An indictment charging manufacturing of methamphetamine was sufficient. The indictment alleged that the defendant “did knowingly manufacture methamphetamine.” It went on to state that the manufacturing consisted of possessing certain precursor items. The latter language was surplusage; an...
The defendant did not establish plain error with respect to his claim that the State’s expert vouched for the credibility of the child sexual assault victim. The expert testified regarding the victim’s bruises and opined that they were the result of blunt force trauma; when asked whether the...
The trial court did not err by denying the defendant’s motion to dismiss a charge of obtaining property by false pretenses. The indictment alleged that the defendant obtained US currency by selling to a company named BIMCO electrical wire that was falsely represented not to have been stolen. The...
The trial court did not err by denying the defendant’s motion to dismiss a charge of conspiracy to sell methamphetamine, given the substantial evidence of an implied understanding among the defendant, Fisher, and Adams to sell methamphetamine to the informants. The informants went to Fisher to...
The trial court did not have jurisdiction to resentence the defendant for obtaining property by false pretenses, where the defendant’s motion for appropriate relief (MAR), which was granted by the trial court, challenged only his conviction for possession of stolen goods, a separate CRS case...
In this child sexual abuse case, the defendant was not denied his right to a speedy trial. The more than three-year delay between indictment and trial is sufficiently long to trigger analysis of the remaining speedy trial factors. Considering those factors, the court found that the evidence “...
In this case involving second-degree murder arising out of a vehicle collision, the trial court did not err by admitting staged photographs into evidence. An expert in crash investigation and reconstruction explained to the jury, without objection, how the accident occurred. The photographs were...
The trial court did not err by denying the defendant’s motion to dismiss the charge of possession of drug paraphernalia. When the arresting officer approached the vehicle, the defendant was sitting in the back seat and did not immediately show his hands at the officer’s request. Officers...
The court rejected the defendant’s contention that the possession of a firearm by a felon statute was unconstitutional as applied to him. Although rejecting the defendant’s challenge, the court agreed that the trial court erred when it found that the defendant’s 1995 Texas drug trafficking...
The trial court did not err by denying the defendant’s motion to dismiss a charge of taking indecent liberties with a child. The victim testified that the defendant repeatedly raped her while she was a child living in his house and DNA evidence confirmed that he was the father of her child. The...
In this drug trafficking case, the trial court did not err in quashing a subpoena the defendant issued to a North Carolina Department of Revenue employee to testify at trial and produce “[a]ll documents related to the Unauthorized Substance Tax action against [defendant].” In part because the...
Over a dissent, the court held that an indictment charging possession of methamphetamine precursors was defective because it failed to allege either the defendant’s intent to use the precursors to manufacture methamphetamine or his knowledge that they would be used to do so. The indictment...
Because the defendant’s conviction for statutory rape, based on acts committed in 2005, cannot be considered a “reportable conviction,” the defendant was not eligible for satellite-based monitoring.
The trial court’s restitution award of $5,000 was not supported by competent evidence.
In this child sexual assault case, no confrontation clause violation occurred where the victim’s statements were made for the primary purpose of obtaining a medical diagnosis. After the victim revealed the sexual conduct to his mother, he was taken for an appointment at a Children’s Advocacy...
In this capital murder case involving an African American defendant and victims, the trial court did not err by sustaining the State’s reverse Batson challenge. The defendant exercised 11 peremptory challenges, 10 against white and Hispanic jurors. The only black juror that the...
(1) In this murder case, counsel’s statement in closing argument did not exceed the scope of consent given by the defendant during a Harbison inquiry. In light of the Harbison hearing, the defendant knowingly, intelligently and voluntarily, and with full knowledge of the...
In this peeping with a photographic device case, the trial court erred by denying the defendant’s motion to suppress with respect to evidence obtained during a search of the defendant’s external hard drives. The court rejected the notion that the defendant consented to a search of the external...
In this murder case, the trial court did not err by admitting hearsay testimony under the Rule 803(3) state of mind hearsay exception. The victim’s statement that she “was scared of” the defendant unequivocally demonstrated her state of mind and was highly relevant to show the status of her...
(1) The court rejected the defendant’s argument that because SBM is a civil, regulatory scheme, it is subject to the Rules of Civil Procedure and that the trial court erred by failing to exercise discretion under Rule 62(d) to stay the SBM hearing. The court concluded that because Rule 62...
(1) The court rejected the defendant’s argument that because SBM is a civil, regulatory scheme, it is subject to the Rules of Civil Procedure and that the trial court erred by failing to exercise discretion under Rule 62(d) to stay the SBM hearing. The court concluded that because Rule 62...
The trial court erred by failing to conduct the appropriate analysis with respect to the defendant’s argument that SMB constitutes an unreasonable search and seizure. The trial court simply acknowledged that SBM constitutes a search and summarily concluded that the search was reasonable. As such...
In this child sexual assault case, the trial court rejected the defendant’s argument that the State’s expert witness was not qualified to give testimony under amended Rule 702. Because the defendant was indicted on April 11, 2011, the amendments to Rule 702 do not apply to his case.
The trial court erred by failing to conduct the appropriate analysis with respect to the defendant’s argument that SMB constitutes an unreasonable search and seizure. The trial court simply acknowledged that SBM constitutes a search and summarily concluded that the search was reasonable. As such...
In this child sexual assault case, the trial court did not err by admitting the victim’s statements to his mother under the excited utterance exception. The court rejected the defendant’s argument that a 10-day gap between the last incident of sexual abuse and the victim’s statements to his...
The Harbison standard did not apply to counsel’s comments regarding the “dreadfulness” of the crimes because these comments were not concessions of guilt. Considering these statements under the Strickland standard, the court noted that counsel pointed out to the jury that while...
G.S. 90-95(d1)(1)(c) (possession of pseudoephedrine by person previously convicted of possessing methamphetamine is a Class H felony) is a strict liability offense.
The trial court erred when sentencing the defendant as a habitual felon by assigning prior record level points for an assault inflicting serious bodily injury conviction where that same offense was used to support the habitual misdemeanor assault conviction and establish the defendant’s status...
In this peeping with a photographic device case, the trial court erred by denying the defendant’s motion to suppress with respect to evidence obtained during a search of the defendant’s external hard drives. The court rejected the notion that the defendant consented to a search of the external...
The trial court lacked subject matter jurisdiction to revoke the defendant’s probation because the State failed to prove that the violation reports were timely filed. As reflected by the file stamps on the violation reports, they were filed after the expiration of probation in all three cases at...
(1) The trial court erred by revoking the defendant’s probation where the State failed to prove violations of the absconding provision in G.S. 15A-1343(b)(3a). The trial court found that the defendant “absconded” when he told the probation officer he would not report to the probation office and...
The trial court did not err by revoking the defendant’s probation where the evidence showed that he willfully absconded. The defendant moved from his residence, without notifying or obtaining prior permission from his probation officer, willfully avoided supervision for multiple months, and...
In this murder case, trial counsel did not render ineffective assistance by failing to produce evidence, as promised in counsel’s opening statement to the jury, that the shooting in question was justified or done in self-defense. After the trial court conducted a Harbison inquiry,...
The evidence was sufficient to convict the defendant of both attempted sex offense and attempted rape. The court rejected the defendant’s argument that the evidence was sufficient to permit the jury to infer the intent to commit only one of these offenses. During a home invasion, the defendant...
(1) In this case in which the defendant was convicted of several felonies, including attempted murder, assault with intent to kill, burglary, and numerous attempted sex offenses, the trial court did not err in responding to the deliberating jury’s request that it explain the “legal definition of...
The trial court did not err by declining to instruct the jury on voluntary manslaughter. The trial judge instructed the jury on first- and second-degree murder but declined the defendant’s request for an instruction on voluntary manslaughter. The jury found the defendant guilty of second-degree...
In this murder case, trial counsel did not render ineffective assistance by failing to produce evidence, as promised in counsel’s opening statement to the jury, that the shooting in question was justified or done in self-defense. After the trial court conducted a Harbison inquiry,...
No fourth amendment violation occurred when officers entered the defendant’s driveway to investigate a shooting. When detectives arrived at the defendant’s property they found the gate to his driveway open. The officers did not recall observing a “no trespassing” sign that had been reported the...
The defendant’s constitutional rights were not violated when the trial court sentenced him on three counts of first-degree sexual offense, where the offenses were committed when the defendant was fifteen years old. The court found that the defendant had not brought the type of categorical...
(1) The superior court was without subject matter jurisdiction with respect to three counts of first-degree statutory rape, where no evidence showed that the defendant was at least 16 years old at the time of the offenses. The superior court may obtain subject matter jurisdiction over a juvenile...
In this voluntary manslaughter case, where the defendant’s pit bull attacked and killed the victim, the trial court did not err by admitting a rap song recording into evidence. The defendant argued that the song was irrelevant and inadmissible under Rule 403, in that it contained profanity and...
In this voluntary manslaughter case, where the defendant’s pit bull attacked and killed the victim, the trial court did not err by admitting a rap song recording into evidence. The defendant argued that the song was irrelevant and inadmissible under Rule 403, in that it contained profanity and...
The court rejected the defendant’s argument that on a second trial after a mistrial the second trial judge was bound by the first trial judge’s suppression ruling under the doctrine of law of the case. The court concluded that doctrine only applies to an appellate ruling. However, the court...
(1) The court rejected the defendant’s argument that on a second trial after a mistrial the second trial judge was bound by the first trial judge’s suppression ruling under the doctrine of law of the case. The court concluded that doctrine only applies to an appellate ruling. However, the court...
There was no fatal variance in an indictment where the State successfully moved to amend the indictment to change the date of the offense from May 10, 2013 to July 14, 2013 but then neglected to actually amend the charging instrument. Time was not of essence to any of the charged crimes and the...
In this voluntary manslaughter case, where the defendant’s pit bull attacked and killed the victim, the trial court did not err by admitting as evidence screenshots from the defendant’s webpage over the defendant’s claim that the evidence was not properly authenticated. The State presented...
Where there was evidence to support a finding that the victim suffered serious personal injury, the trial court did not err in instructing the jury on first-degree sexual offense. The trial court’s instructions were proper where an officer saw blood on the victim’s lip and photographs showed...
A statement of charges, alleging that the defendant engaged in disorderly conduct in or near a public building or facility sufficiently charged the offense. Although the statute uses the term “rude or riotous noise,” the charging instrument alleged that the defendant did “curse and shout” at...
There was no fatal variance in an indictment where the State successfully moved to amend the indictment to change the date of the offense from May 10, 2013 to July 14, 2013 but then neglected to actually amend the charging instrument. Time was not of essence to any of the charged crimes and the...
The court rejected the defendant’s constitutional challenge to G.S. 14-132(a)(1), proscribing disorderly conduct in a public building or facility. Because the North Carolina Supreme Court has already decided that a statute “that is virtually identical” to the one at issue is not void for...
(1) Where a kidnapping indictment alleged that the defendant confined and restrained the victim for purposes of facilitating a forcible rape, the State was not required to prove both confinement and restraint. (2) In a case where the defendant was charged with sexual assault and kidnapping,...
The trial court did not commit plain error in instructing the jury on disorderly conduct in a public building or facility where it required the State to prove an element not required by the statute (that the “utterance, gesture or abusive language that was intended and plainly likely to provoke...
Relying on prior binding opinions, the court rejected the defendant’s argument that the trial court’s order directing the defendant to enroll in lifetime SBM violated ex post facto and double jeopardy. The court noted that prior opinions have held that the SBM program is a civil regulatory...
Relying on prior binding opinions, the court rejected the defendant’s argument that the trial court’s order directing the defendant to enroll in lifetime SBM violated ex post facto and double jeopardy. The court noted that prior opinions have held that the SBM program is a civil regulatory...
(1) The court rejected the defendant’s argument that on a second trial after a mistrial the second trial judge was bound by the first trial judge’s suppression ruling under the doctrine of law of the case. The court concluded that doctrine only applies to an appellate ruling. However, the court...
In this voluntary manslaughter case, where the defendant’s pit bull attacked and killed the victim, the trial court did not commit plain error by allowing a pathologist to opine that the victim’s death was due to dog bites. The court rejected the defendant’s argument that the expert was in no...
The trial court improperly sentenced the defendant in his absence. The trial court orally sentenced the defendant to 35 to 42 months in prison, a sentence which improperly correlated the minimum and maximum terms. The trial court’s written judgment sentenced the defendant to 35 to 51 months, a...
In this child sexual assault case, the trial court did not err by refusing to appoint counsel to litigate the defendant’s pro se motion for post-conviction DNA testing. Under G.S. 15A-269(c), to be entitled to counsel, the defendant must establish that the DNA testing may be material to his...
In this drug case, the court held, over a dissent, that a strip search of the defendant did not violate the fourth amendment. When officers entered a residence to serve a warrant on someone other than the defendant, they smelled the odor of burnt marijuana. When the defendant was located...
In this child sexual assault case, the trial court did not err by refusing to appoint counsel to litigate the defendant’s pro se motion for post-conviction DNA testing. Under G.S. 15A-269(c), to be entitled to counsel, the defendant must establish that the DNA testing may be material to his...
No violation of double jeopardy occurred where the defendant was convicted of attempted larceny and attempted common law robbery when the offenses arose out of the same incident but involved different victims. The defendant committed the attempted larceny upon entering the home in question with...
In calculating the defendant’s prior record level, the trial court erred by assigning an additional point on grounds that all the elements of the present offense were included in a prior offense. The defendant was found guilty of possession of a stolen vehicle. The court rejected the State’s...
In this drug case, the officer had reasonable suspicion for the stop. The officer, who was in an unmarked patrol vehicle in the parking lot of a local post office, saw the defendant pull into the lot. The officer knew the defendant because he previously worked for the officer as an informant and...
(1) The evidence was sufficient to support a conviction for deterring an appearance by a witness under G.S. 14-226(a). After the defendant was arrested and charged with assaulting, kidnapping, and raping the victim, he began sending her threatening letters from jail. The court concluded that the...
The trial court erroneously concluded that attempted second-degree rape is an aggravated offense for purposes of lifetime SBM and lifetime sex offender registration. Pursuant to the statute, an aggravated offense requires a sexual act involving an element of penetration. Here, the defendant was...
The trial court erroneously concluded that attempted second-degree rape is an aggravated offense for purposes of lifetime SBM and lifetime sex offender registration. Pursuant to the statute, an aggravated offense requires a sexual act involving an element of penetration. Here, the defendant was...
The State was not required to prove a specific case number alleged in an indictment charging deterring an appearance by a State witness in violation of G.S. 14-226(a). The case number was not an element of the offense and the allegation was mere surplusage.
A two-count indictment properly alleged habitual misdemeanor assault. Count one alleged assault on a female, alleging among other things that the defendant’s conduct violated G.S. 14-33 and identifying the specific injury to the victim. The defendant did not contest the validity of this count....
In this drug case, the officer had reasonable suspicion for the stop. The officer, who was in an unmarked patrol vehicle in the parking lot of a local post office, saw the defendant pull into the lot. The officer knew the defendant because he previously worked for the officer as an informant and...
In this armed robbery case, the statement at issue was not hearsay because it was not offered for the truth of the matter asserted. At trial one issue was whether an air pistol used was a dangerous weapon. The State offered a detective who performed a test fire on the air pistol. He testified...
(1) Because the defendant’s motion for appropriate relief (MAR) alleging ineffective assistance of counsel in this sexual assault case raised disputed issues of fact, the trial court erred by failing to conduct an evidentiary hearing before denying relief. The defendant claimed that counsel was...
In this armed robbery case, the trial court did not err by admitting a videotape showing a detective test firing the air pistol in question. The State was required to establish that the air pistol was a dangerous weapon for purposes of the armed robbery charge. The videotape showed a detective...
Over a dissent, the court held that an obtaining property by false pretenses indictment was not defective where it alleged that the defendant obtained “a quantity of U.S currency” from the defendant. The court found that G.S. 15-149 (allegations regarding larceny of money) supported its holding...
Although the trial court erred by failing to exercise discretion in connection with the jury’s request to review certain testimony, the defendant failed to show prejudice. In this armed robbery case, during deliberations the jury sent a note to the trial court requesting several items, including...
Ineffective assistance of counsel claims cannot be asserted in SBM appeals; such claims can only be asserted in criminal matters.
The trial court’s conclusion that the defendant was a recidivist was not supported by competent evidence and therefore could not support the conclusion that the defendant must submit to lifetime sex offender registration and SBM. The trial court’s order determining that the defendant was a...
(1) In this sexual assault case involving allegations that the defendant, a high school wrestling coach, sexually assaulted wrestlers, the trial court did not err by admitting, under Rule 404(b), evidence that the defendant engaged in hazing techniques against his wrestlers. The evidence...
In this sexual assault case involving allegations that the defendant, a high school wrestling coach, sexually assaulted wrestlers, the trial court erred by excluding evidence that one of the victims was biased. The defendant sought to introduce evidence showing that the victim had a motive to...
Based on the victim’s testimony that the alleged incident occurred in his bedroom, there was sufficient evidence that the charged offense, crime against nature, occurred in the state of North Carolina.
The defendant’s assertions in his MAR, filed more than seven years after expiration of the appeal period, that his plea was invalid because the trial court failed to follow the procedural requirements of G.S. 15A-1023 and -1024 were precluded by G.S. 15A-1027 (“Noncompliance with the procedures...
In this sexual assault case involving allegations that the defendant, a high school wrestling coach, sexually assaulted wrestlers, the trial court erred by excluding evidence that one of the victims was biased. The defendant sought to introduce evidence showing that the victim had a motive to...
In this sexual assault case involving allegations that the defendant, a high school wrestling coach, sexually assaulted wrestlers, the trial court abused its discretion by excluding, under Rule 403, evidence that one of the victims was biased. The evidence in question had a direct relationship...
In this sexual assault case involving allegations that the defendant, a high school wrestling coach, sexually assaulted wrestlers, the trial court did not abuse its discretion under Rule 403 by admitting 404(b) evidence that the defendant engaged in hazing techniques against his wrestlers. The...
Based on the victim’s testimony that the alleged incident occurred in his bedroom, there was sufficient evidence that the charged offense, crime against nature, occurred in the state of North Carolina.
(1) The defendant, who pleaded guilty in this drug case, had no statutory right under G.S. 15A-1444 to appeal where his appeal pertained to the voluntariness of his plea. (2) Notwithstanding prior case law, and over a dissent, the court held that the defendant could not seek review by way of...
The defendant’s assertions in his MAR, filed more than seven years after expiration of the appeal period, that his plea was invalid because the trial court failed to follow the procedural requirements of G.S. 15A-1023 and -1024 were precluded by G.S. 15A-1027 (“Noncompliance with the procedures...
(1) In a case involving two perpetrators, the trial court properly denied the defendant’s motion to dismiss a robbery charge, predicated on the corpus delicti rule. Although the defendant’s own statements constituted the only evidence that he participated in the crime, “there [wa]s no dispute...
(1) The trial court properly denied the defendant’s motion to dismiss in this felony indecent exposure case. The evidence showed that a neighbor and her 4-year-old daughter saw the defendant masturbating in front of his garage. The court rejected the defendant’s argument that because he was on...
In this larceny and obtaining property by false pretenses case, the court held: “[t]estimony that the investigating detective was unable to reach defendant to question him during her investigation was admissible to describe the course of her investigation, and was not improper testimony of...
Although the trial court violated G.S. 15A-1221(b) by admitting an arrest warrant into evidence, the error did not constitute plain error.
In a discharging a barreled weapon into occupied property case, the trial court did not err by instructing the jury that because the crime was a general intent crime, the State need not prove that the defendant intentionally discharged the firearm into occupied property, and that it needed only...
(1) In a case involving charges under G.S. 14-208.18(a) (sex offender being present at a location used by minors, here a church preschool), where the State was required to prove (in part) that the defendant was required to register as a sex offender and was so required because of a conviction...
An indictment charging discharging a firearm into an occupied dwelling was not defective. The indictment alleged that the defendant “discharge[d] a firearm to wit: a pistol into an apartment 1727 Clemson Court, Kannapolis, NC at the time the apartment was occupied by Michael Fezza” and that the...
The trial court properly determined that a charge of conspiracy to manufacture methamphetamine was a Class C felony. The court rejected the defendant’s argument that G.S. 14-2.4(a) required punishment as a Class D felony (“Unless a different classification is expressly stated, a person who is...
In a discharging a barreled weapon into occupied property case, the trial court did not err by instructing the jury that because the crime was a general intent crime, the State need not prove that the defendant intentionally discharged the fireadisrm into occupied property, and that it needed...
(1) Because the defendant had ample time to investigate, prepare, and present his defense and had failed to show that he received ineffective assistance of counsel by the trial court’s denial of his motion to continue, the trial court did not err by denying defense counsel’s motion to withdraw...
The trial court properly determined that a charge of conspiracy to manufacture methamphetamine was a Class C felony. The court rejected the defendant’s argument that G.S. 14-2.4(a) required punishment as a Class D felony (“Unless a different classification is expressly stated, a person who is...
In this DWI case where the district court judge entered a preliminary determination that the results of the defendant’s blood alcohol test should be suppressed but the superior court reversed the preliminary determination on the State’s appeal and remanded to the district court for further...
Reversing the defendant’s convictions for contaminating a public water system, the court held that because the defendant was not constructively present, the evidence was insufficient to support criminal liability under the doctrine of acting in concert. The evidence showed that the defendant...
The trial court did not err by failing to intervene sua sponte during the prosecutor’s closing argument. Here, the prosecutor argued facts in evidence regarding a prior assault by the defendant and the trial court gave an appropriate limiting instruction regarding the defendant’s prior...
(1) In this child sexual assault case the trial court did not err by admitting testimony from the victim’s therapist. The court rejected the defendant’s argument that the therapist’s testimony constituted impermissible vouching for the victim’s credibility. The therapist specialized in working...
In this felony murder case, the trial court acted within its discretion by declining to answer a question from the deliberating jury. Robbery was the underlying felony for the felony murder charge. During deliberations, the jury sent a note with the following question: “Can this defendant be...
(1) The evidence was sufficient to submit felony murder to the jury on the basis of felony larceny with a deadly weapon being the underlying felony. The court rejected the defendant’s argument that the State failed to show that a beer bottle found at the crime scene was used as a “deadly weapon...
The trial court properly extended the session. After the State rested on Friday, the trial court announced that it would be in recess until the following Tuesday. The defendant did not object to the announcement. Prior to dismissing the jurors on Friday, the trial court again informed them in...
In this conspiracy to traffic in opiates case, the evidence was sufficient to support the conviction where the State’s expert analyzed only one of the pills in question and then confirmed that the remainder were visually consistent with the one that was tested. The police seized 20 pills...
In this appeal from a motion for appropriate relief (MAR), the court held that advice provided by the defendant’s counsel in connection with his plea did not comply with Padilla v. Kentucky, 559 U.S. 356 (2010) (incorrect advice regarding the immigration consequences of a guilty plea...
In this conspiracy to traffic in opiates case, the evidence was sufficient to support the conviction where the State’s expert analyzed only one of the pills in question and then confirmed that the remainder were visually consistent with the one that was tested. The police seized 20 pills...
Where the indictment charged the defendant with sexual offense in violation of G.S. 14-27.4(a)(1) (first-degree statutory sex offense with a child under the age of 13), the trial court erred by instructing the jury on sexual offense with a child in violation of G.S. 14-27.4A(a) (statutory sexual...
In this murder case, the court rejected the defendant’s argument that the clergy-communicant privilege prohibited admission of evidence regarding the defendant’s confession to his pastor. The court noted that there are two requirements for this privilege to apply: the defendant must be seeking...
(1) Because the officer saw the defendant drive through a red light, the officer had reasonable suspicion to stop the defendant’s vehicle. (2) Where upon stopping the defendant’s vehicle the officer smelled a strong odor of alcohol and saw that the defendant had red glassy eyes, the defendant...
(1) The trial court did not abuse its discretion by admitting a recording of a witness’s interview with the police for corroboration and impeachment. The witness in question testified for the State. Although much of her testimony was consistent with her earlier interview, it diverged in some...
The trial court did not err by denying the defendant’s motion to strike the jury venire. The defendant alleged that his venire was racially disproportionate to the demographics of Mecklenburg County, where he was tried, and therefore deprived him of his constitutional right to a jury of his...
The trial court did not err by denying the defendant’s request for a special instruction on sequestration. In closing argument, the prosecutor argued, in part: “[Defendant is] cherry-picking the best parts of everybody’s story after … he’s had the entire trial to listen to what everybody else...
The trial court did not err by denying the defendant’s motion to continue after rejecting his Alford plea, where the defendant did not move for a continuance until the second week of trial. The defendant argued that he had an absolute right to a continuance under G.S. 15A-1023(b) (...
(1) The trial court did not abuse its discretion by admitting a recording of a witness’s interview with the police for corroboration and impeachment. The witness in question testified for the State. Although much of her testimony was consistent with her earlier interview, it diverged in some...
The trial court did not err by denying the defendant’s request for a special instruction on sequestration. In closing argument, the prosecutor argued, in part: “[Defendant is] cherry-picking the best parts of everybody’s story after … he’s had the entire trial to listen to what everybody else...
Because the officer saw the defendant drive through a red light, the officer had reasonable suspicion to stop the defendant’s vehicle.
In this rape case, because the evidence was clear and positive and not conflicting with respect to penetration, the trial court did not err by failing to instruct on attempted rape. Here, among other things, a sexual assault nurse testified that the victim told her she was penetrated, the victim...
In this rape case, because the evidence was clear and positive and not conflicting with respect to penetration, the trial court did not err by failing to instruct on attempted rape. Here, among other things, a sexual assault nurse testified that the victim told her she was penetrated, the victim...
Because the officer saw the defendant drive through a red light, the officer had reasonable suspicion to stop the defendant’s vehicle.
In a case involving a breaking or entering of a church, counsel was not ineffective by failing to challenge the admissibility of evidence that the defendant broke into a home on the night in question. The court noted that because the issue pertains to the admission of evidence no further factual...
In this larceny trial, the trial court did err by allowing the State to cross-examine the defendant on his previous convictions for uttering a forged instrument, forgery, and obtaining property by false pretenses, all of which occurred more than 10 years ago. The court noted that it has held...
In this rape case, because the evidence was clear and positive and not conflicting with respect to penetration, the trial court did not err by failing to instruct on attempted rape. Here, among other things, a sexual assault nurse testified that the victim told her she was penetrated, the victim...
In this methamphetamine case, the trial court did not abuse its discretion by denying the defendant’s motion for discovery sanctions after the State destroyed evidence seized from the defendant’s home, without an order authorizing destruction, and despite a court order that the evidence be...
Where the defendant pleaded guilty in this DWI case “and preserved his right to appeal” the denial of his motion to dismiss, the court found that the defendant had no statutory right to appeal the issue or ground to request review by way of certiorari. The defendant’s motion alleged that he was...
In this methamphetamine case, a report about the defendant’s pseudoephedrine purchases was properly admitted as a business record. The report was generated from the NPLEx database. The defendant argued that the State failed to lay a proper foundation, asserting that the State was required to...
The trial court did not err by denying the defendant’s motion to continue after rejecting his Alford plea, where the defendant did not move for a continuance until the second week of trial. The defendant argued that he had an absolute right to a continuance under G.S. 15A-1023(b) (...
The court rejected the defendant’s argument that the identification procedure used violated the Eyewitness Identification Reform Act (EIRA). Although a non-independent administrator was used, the administrator satisfied the requirements of G.S. 15A-284.52(c) for such administrators (he used the...
In a trafficking in methamphetamine case where the defendant did not object on grounds of fatal variance at trial, the issue was waived for purposes of appeal.
Because the probation officer filed violation reports after probation had expired, the trial court lacked jurisdiction to revoke the defendant’s probation. The court rejected the State’s argument that the defendant’s period of probation did not begin until he was released from incarceration and...
In this burning of personal property case where the indictment charged that the defendant set fire to the victim’s bed, jewelry, and clothing and the evidence showed only that he set fire to her bedding, no fatal variance occurred. The State was not required to show that the defendant also set...
In this homicide case, the trial court properly instructed the jury on flight where evidence showed...
The court held, in this burning of personal property case, that although some of the prosecutor’s comments regarding the credibility of certain witness testimony during closing arguments may have been objectionable, they did not rise to the level of requiring the trial court to intervene ex mero...
The trial court erred by instructing the jury that it could find that the defendant attained habitual felon status based on a prior conviction for selling cocaine where the indictment did not allege that conviction. The indictment alleged three predicate felonies to establish habitual felon...
Trial court did not err by holding the defendant in criminal contempt for willfully violating the Consent Order provision which forbade her from allowing the children to be in the presence of a convicted sex offender.
In this probation revocation case, the Court of Appeals took judicial notice of the date of the defendant’s release from incarceration. This fact was obtained from an offender search on the Department of Public Safety website.
The State’s closing arguments did not require the trial court to intervene ex mero moto. With respect to comments regarding 404(b) evidence, the State did not ask the jury to use the evidence for an improper purpose. To the extent that the State referred to any improper evidence, the references...
The trial court did not err with respect to the defendant’s request to cross-examine the State’s witness, Collins, regarding the victim’s reputation for violence. Although the State objected to the defendant’s attempt to so cross-examine the witness, it acknowledged that it would be appropriate...
In this burning of personal property case, the trial court did not err by allowing the State’s expert in fire investigation, a fire marshal, to testify that the fire had been intentionally set. The court noted that in State v. Hales, 344 N.C. 419, 424-25 (1996), the North Carolina...
The evidence was sufficient with respect to 35 counts of possession of the precursor chemical pseudoephedrine with intent to manufacture methamphetamine. As to possession, the State introduced evidence that the defendant purchased pseudoephedrine, was seen “cooking meth,” and that others had...
Applying the four-factor speedy trial test of Barker v. Wingo, the court concluded that no speedy trial violation occurred. The nine year gap between the time of indictment and the hearing on the speedy trial motion is presumptively prejudicial. However while extraordinary, this delay...
Felony discharging of a firearm into an occupied vehicle can serve as an underlying felony supporting a charge of felony murder.
In this burning of personal property case, the trial court did not err by failing to instruct the jury regarding the defendant’s presence at the crime scene. Contrary to the defendant’s argument, presence at the scene is not an element of the offense.
The evidence was sufficient with respect to 35 counts of possession of the precursor chemical pseudoephedrine with intent to manufacture methamphetamine. The court rejected the defendant’s argument that the evidence was insufficient because the substance was not chemically identified as...
In a failure to register as a sex offender case, the indictment was not defective on grounds that did not allege that the defendant failed to provide “written notice” of his address change “within three business days.” Citing prior case law, the court noted that it has already rejected arguments...
Under Justice Reinvestment Act (JRA) changes, the trial court erred by revoking the defendant’s probation. After reviewing the requirements of the JRA, the court noted that the trial judge did not check the box on the judgment form indicating that it had made a finding that the defendant...
In a case where the defendant pled guilty pursuant to a plea agreement without notifying the State of his intent to appeal the suppression ruling and failed to timely file a notice of intent to appeal, the court dismissed the defendant’s untimely appeal and his petition for writ of certiorari....
Because it is a jurisdictional issue, a defendant’s argument that a criminal indictment is defective may be raised for the first time on appeal notwithstanding the defendant’s failure to contest the validity of the indictment at trial.
The issue of fatal variance is not preserved for purposes of appeal if not asserted at trial.
Vacating two of the defendant’s second-degree kidnapping convictions on grounds that the plain language of G.S. 14-39(a) does not permit prosecution of a parent for kidnapping, at least when that parent has custodial rights with respect to the children. The court explained:
“[T...
(1) In this DWI case, the trial court did not abuse its discretion by allowing the State’s witness, a field technician in the Forensic Test of Alcohol Branch of the NC DHHS, who demonstrated specialized knowledge, experience, and training in blood alcohol physiology, pharmacology, and related...
(1) The court rejected the defendant’s argument that kidnapping charges should have been dismissed because there was insufficient evidence that his purpose in confining the victims was to terrorize them. “A defendant intends to terrorize another when the defendant intends to place that person in...
There was no fatal variance between a kidnapping indictment that named “Vera Alston” as a victim and the evidence at trial that showed the victim’s last name was “Pierson.” The court concluded:
[T]he evidence is undisputed that one of defendant’s victims for kidnapping and...
(1) Indictments charging kidnapping with respect to victims under 16 were not defective. The indictments alleged that the defendant unlawfully confined and restrained each victim “without the victim’s consent.” The court rejected the defendant’s argument that because the indictments failed to...
In a case with multiple victims, the court rejected the defendant’s argument that the State’s evidence was too vague for the jury to infer that he pointed the gun at any particular individual. One witness testified that upon defendant’s orders, “everybody ran in the room with us … and he was...
(1) In this child sex case, evidence that the victim was discovered watching a pornographic video, offered by the defendant to show the victim’s sexual knowledge, is not evidence of sexual activity barred by the Rape Shield Statute. (2) Evidence offered by the defendant of the child victim’s...
The trial court correctly calculated the defendant’s PRL. The defendant argued that the trial court erred by basing its PRL calculation on an ineffective stipulation. The defendant’s only prior conviction was one in Michigan for carrying a concealed weapon, which he contended is substantially...
In this sex case involving a six-year-old victim, the trial court committed prejudicial error by excluding evidence that the defendant found the victim watching a pornographic video. The evidence was relevant to explain an alternate source of the victim’s sexual knowledge, from which she could...
(1) In a case involving charges of obtaining property by false pretenses arising out of alleged insurance fraud, the defendant waived the issue of fatal variance by failing to raise it at trial. (2) Counsel rendered ineffective assistance by failing to move to dismiss on grounds of fatal...
The trial court correctly calculated the defendant’s PRL. The defendant argued that the trial court erred by basing its PRL calculation on an ineffective stipulation. The defendant’s only prior conviction was one in Michigan for carrying a concealed weapon, which he contended is substantially...
In a case involving charges of obtaining property by false pretenses arising out of alleged insurance fraud, the trial court did not err by admitting testimony that the defendant did not appear for two scheduled examinations under oath as required by her insurance policy and failed to respond to...
(1) In a case arising out of insurance fraud, the trial court did not err by denying the defendant’s motion to dismiss three counts of obtaining property by false pretenses. Two of the counts arose out of payments the defendant received based on false moving company invoices submitted to her...
In this drug case, the trial court erred in denying the defendant’s motion to suppress evidence obtained as a result of a warrantless search of her residence. According to the court: “The trial court’s findings that the officers observed a broken window, that the front door was unlocked, and...
In this drug case, the trial court erred in denying the defendant’s motion to suppress evidence obtained as a result of a warrantless search of her residence. According to the court: “The trial court’s findings that the officers observed a broken window, that the front door was unlocked, and...
The trial court erred by concluding that the defendant’s 300-month minimum, 420-month maximum sentence for statutory rape and statutory sex offense violated the Eighth Amendment. The court concluded: “A 300-month sentence is not grossly disproportionate to the two crimes to which Defendant pled...
In this violation of a domestic violence protective order (DVPO) case, the trial court did not err by sentencing the defendant within the aggravated range based in part on the G.S. 15A-1340.16(d)(15) statutory aggravating factor (the “defendant took advantage of a position of trust or confidence...
(1) Count 1 of an indictment charging the defendant with possessing a Schedule I controlled substance, “Methylethcathinone,” with intent to manufacture, sell or deliver was fatally defective. Although 4-methylethcathinone falls within the Schedule I catch-all provision in G.S. 90-89(5)(j), “...
The trial court did not err by denying the defendant’s motion to dismiss a charge of maintaining a dwelling. The court first held that the evidence established that the defendant kept or maintained the dwelling where it showed that he resided there. Specifically, the defendant received mail...
(1) The evidence was sufficient to support charges of attempted armed robbery against both defendants. The defendants and a third person, Moore, planned to rob Bobbie Yates of marijuana. However, once they learned there was a poker game going on in the apartment, they retrieved another weapon...
The trial court erred by sentencing the defendant for both felony larceny and felony possession of stolen goods when both convictions were based on the same items.
(1) In this hunting without a license case, the trial court did not err by denying defendant Oxendine’s request to instruct the jury on legal justification. The defendant argued that he was exempt under G.S. 113-276 from the requirement of a hunting license because he had been engaged in a...
In this injury to real property case, the trial court did not err by ordering the defendant to pay $7,408.91 in restitution. A repair invoice provided sufficient evidence to support the award of restitution and the restitution award properly accounted for all damage directly and proximately...
In this injury to real property case, the court held that an air conditioning unit that was attached to the exterior of a mobile home was real property. The defendant dismantled and destroyed the unit, causing extensive water damage to the home. The trial court instructed the jury that “[a]n air...
The trial court erred by sentencing the defendant for both felony larceny and felony possession of stolen goods when both convictions were based on the same items.
In this driving while license revoked case, the court held that DMV records were non-testimonial. The documents at issue included a copy of the defendant’s driving record certified by the DMV Commissioner; two orders indefinitely suspending his drivers’ license; and a document attached to the...
(1) In this case, which came to the court on a certiorari petition to review the trial court’s 2013 probation revocation, the court concluded that it had jurisdiction to consider the defendant’s claim that the trial court lacked jurisdiction to extend her probation in 2009. (2) The trial court...
On the State’s appeal from a trial court order granting the defendant’s motion to suppress, the court vacated and remanded for new findings of fact and if necessary, a new suppression hearing. After being shot by police, the defendant was taken to the hospital and given pain medication. He then...
In this case where the defendant was convicted of second-degree murder for killing her boyfriend, the trial court did not err by introducing 404(b) evidence pertaining to an incident between the defendant and another boyfriend, Walker, which occurred 14 months before the events in question. The...
In this case involving three accomplices and charges of armed robbery, common law robbery and attempted armed robbery, the court rejected the defendant’s argument that he could not have been convicted of attempted armed robbery under the theory of acting in concert because the trial court did...
Indictments charging the defendant with drug crimes were fatally defective where they did not name controlled substances listed in Schedule III. The possession with intent and sale and delivery indictments alleged the substances at issue to be “UNI-OXIDROL,” "UNIOXIDROL 50” and “SUSTANON” and...
In this child sexual assault case, no error occurred when the State’s expert medical witness testified that the victim’s delay in reporting anal penetration was a characteristic consistent with the general behavior of children who have been sexually abused in that manner. The court rejected the...
(1) No violation of due process occurred when the defendant was sentenced in the aggravated range where proper notice was given and the jury found an aggravated factor (that the defendant committed the offense while on pretrial release on another charge). (2) Because G.S. 15A-1340.16 (aggravated...
The court rejected the defendant’s argument that there was a fatal variance between a sale and delivery indictment which alleged that the defendant sold the controlled substance to “A. Simpson” and the evidence. Although Mr. Simpson testified at trial that his name was “Cedrick Simpson,” not “A...
In this robbery case, no plain error occurred with respect to the trial court’s not guilty mandate. The jury instructions for the offenses of armed and common law robbery conformed to the pattern jury instructions with one exception: the court did not expressly instruct the jury that it had a “...
The court rejected the defendant’s argument that there was a fatal variance between a sale and delivery indictment which alleged that the defendant sold the controlled substance to “A. Simpson” and the evidence. Although Mr. Simpson testified at trial that his name was “Cedrick Simpson,” not “A...
(1) The evidence was sufficient to support a conviction for attempted first-degree burglary. In this case, which involved an attempted entry into a home in the wee hours of the morning, the defendant argued that the State presented insufficient evidence of his intent to commit a larceny in the...
The trial court did not err by denying the defendant’s motion to dismiss a charge of armed robbery. One of the victims testified that all three perpetrators had handguns. A BB pistol and a pellet gun were found near the scene of the robbery. The defendant argued that the State failed to produce...
In this sexual offense with a student case, the trial court committed reversible error by concluding that the defendant’s evidence was per se inadmissible under the Rape Shield Rule. The case involved charges that the defendant, a substitute teacher, had the victim perform oral sex on him after...
In this cyberbullying case based on electronic messages, the trial court did not abuse its discretion by allowing the investigating detective to testify that while investigating the case, he took screen shots of anything that appeared to be evidence of cyberbullying. The defendant argued that...
The trial court violated the defendant’s constitutional right to presence at every stage of the trial by failing to disclose a note from the jury to the defendant. However, the error was harmless beyond a reasonable doubt.
In this cyberbullying case based on electronic messages, the court rejected the defendant’s argument that the trial court erred by admitting into evidence the defendant’s Facebook posts that, among other things, stated that “there’s no empirical evidence that your Jesus ever existed.” The...
In this child sexual abuse case, no error occurred when the medical doctor who examined the victim explained the victim’s normal examination, stating that 95% of children examined for sexual abuse have normal exams and that “it’s more of a surprise when we do find something.” The doctor further...
(1) In this murder and discharging a barreled weapon case in which the jury heard some evidence that the defendant was affiliated with a gang, the trial court did not deprive the defendant of his constitutional right to a fair and impartial jury by failing to question jurors about a note they...
(1) Where appointed counsel moved, on the sixth day of a bribery trial, for mandatory withdrawal pursuant to Rule 1.16(a) of the N.C. Rules of Professional Conduct, the trial court did not abuse its discretion by allowing withdrawal upon counsel’s citation of Comment 3 to Rule 1.16 as grounds...
Where appointed counsel was allowed to withdraw, on the sixth day of a bribery trial, pursuant to Comment 3 of Rule 1.16(a) of the N.C. Rules of Professional Conduct, the court rejected the defendant’s argument that private counsel retained after this incident was presumptively ineffective given...
The trial court did not err by denying the defendant’s request for a diminished capacity instruction with respect to a charge of discharging a firearm into occupied property that served as a felony for purposes of a felony-murder conviction. Because discharging a firearm into occupied property...
The trial court did not err by denying the defendant’s request for a diminished capacity instruction with respect to a charge of discharging a firearm into occupied property that served as a felony for purposes of a felony-murder conviction. Because discharging a firearm into occupied property...
In this first-degree murder case, the evidence was sufficient to go to the jury on the theory of premeditation and deliberation. Among other things, there was no provocation by the victim, who was unarmed; the defendant shot the victim at least four times; and after the shooting the defendant...
(1) The State presented sufficient evidence to support a conviction for failure to register as a sex offender. The court rejected the defendant’s argument that he was not required to register in connection with a 1994 indecent liberties conviction. The court took judicial notice of the fact that...
The evidence was sufficient to support a conviction for discharging a firearm into occupied property (a vehicle), an offense used to support a felony-murder conviction. The defendant argued that the evidence was conflicting as to whether he fired the shots from inside or outside the vehicle....
The trial court did not err by denying the defendant’s request for a diminished capacity instruction with respect to a charge of discharging a firearm into occupied property that served as a felony for purposes of a felony-murder conviction. Because discharging a firearm into occupied property...
In this first-degree murder case, the court rejected the defendant’s argument that there was an insufficient relationship between the felony supporting felony-murder (discharging a firearm into occupied property) and the death. The law requires only that the death occur “in the perpetration or...
The State had no right to appeal the trial court’s order granting the defendant’s motion to dismiss for insufficient evidence, made after the close of all evidence where the trial court erred by taking the defendant’s motion under advisement and failing to rule until after the jury returned its...
In this robbery case involving multiple victims, the trial court did not abuse its discretion by denying the defendant’s motion to sequester the victim-witnesses where the defendant offered no basis for his motion.
In the course of rejecting the defendant’s ineffective assistance claim related to preserving a denial of a motion to suppress, the court held that no prejudice occurred because the trial court properly denied the motion. The officer received a report from an identified tipster that a window at...
In a case where the defendant was charged with assaulting a court security officer, no error occurred when the State was allowed to cross-examine the defendant about another criminal proceeding in which he was the prosecuting witness and that he referenced in his direct examination. On direct,...
The trial court did not err by denying the defendant’s motion to dismiss a voluntary manslaughter charge. The court rejected the defendant’s argument that there was insufficient evidence that she killed the victim by an intentional and unlawful act, noting that although there was no direct...
In a multi-count robbery case, there was sufficient evidence of common law robbery against victim Adrienne. Although Adrienne herself did not testify, the evidence showed that she was a resident of the mobile home where the robbery occurred, that another victim heard her screaming during the...
Although the trial court erred when it based its imposition of sentence on the defendant’s exercise of his right to appeal, the issue was moot because the defendant had served his sentence and could not be resentenced. Although the 120-day sentence was within the statutorily permissible range,...
In this robbery case, the trial court did not err by denying the defendant’s mistrial motion made after an officer testified that the defendant told him that he was turning himself in on a failure to appear charge issued in connection with unrelated drug charges. The defendant failed to timely...
The denial of a motion to suppress does not preserve the issue for appellate review in the absence of a timely objection made when the evidence is introduced at trial.
The trial court erred in calculating the amount of jail fees due where it used the daily rate provided in the wrong version of G.S. 7A-313. The court rejected the State’s argument that because the defendant failed to object to the fees on this basis at sentencing, the issue was not properly...
In this robbery case, the court held that no plain error occurred when the trial court admitted into evidence for purposes of corroboration a videotape of an interview with the defendant’s accomplice, when the accomplice testified at trial. The defendant asserted that the accomplice’s statements...
The court remanded for resentencing where the trial court imposed consecutive sentences based on a misapprehension of G.S. 14-7. The jury found the defendant guilty of multiple counts of robbery and attaining habitual felon status. The trial court sentenced the defendant as a habitual felon to...
An indictment charging failing to notify the sheriff of a change in address was not defective. The indictment alleged, in relevant part, that the defendant “fail[ed] to register as a sex offender by failing to notify the Forsyth County Sheriff’s Office of his change of address.” The defendant...
In a carrying a weapon on educational property case, the court rejected the defendant’s argument that there was a fatal variance between the indictment, which alleged that the defendant possessed weapons at “High Point University, located at 833 Montlieu Avenue” and the evidence, which showed...
The trial court violated the defendant’s right to be present during sentencing by entering a written judgment imposing a longer prison term than that which the trial court announced in his presence during the sentencing hearing. In the presence of the defendant, the trial court sentenced him to...
Following State v. Ross, 46 N.C. App. 338 (1980), the court held that unauthorized use of a motor vehicle “may be a lesser included offense of larceny where there is evidence to support the charge.” Here, while unauthorized use may have been a lesser included of the charged larceny, the...
Following State v. Ross, 46 N.C. App. 338 (1980), the court held that unauthorized use of a motor vehicle “may be a lesser included offense of larceny where there is evidence to support the charge.” Here, while unauthorized use may have been a lesser included of the charged larceny, the...
In this obtaining property by false pretenses case, the trial court did not err by admitting Rule 404(b) evidence. The charges arose out of the defendant’s acts of approaching two individuals (Ms. Hoenig and Ms. Harward), falsely telling them their roofs needed repair, taking payment for the...
Applying a definitional rather than a factual test, the court held that extortion is not a lesser included offense of armed robbery.
(1) Under State v. Tirado, 358 N.C. 551, 579 (2004) (trial court did not subject the defendants to double jeopardy by convicting them of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI) arising from the same conduct...
(1) The court dismissed the defendant’s argument that the trial court erred by failing to order an inventory of biological evidence under G.S. 15A-269(f). Under the statute, a request for post-conviction DNA testing triggers an obligation for the custodial agency to inventory relevant biological...
Applying a definitional rather than a factual test, the court held that extortion is not a lesser included offense of armed robbery.
(1) In this opium trafficking case where the State’s witness was accepted by the trial court as an expert witness without objection from defendant and the defendant did not cross-examine the expert regarding the sufficiency of the sample size and did not make the sufficiency of the sample size a...
The trial court lacked subject matter jurisdiction to revoke the defendant’s probation when it did so after his probationary period had expired and he was not subject to a tolling period.
Where the defendant was convicted of first-degree murder on the theories of felony murder and premeditation and deliberation, the trial court violated G.S. 15A-1340.19C(a) by imposing a sentence of life imprisonment without the possibility of parole without assessing mitigating factors,...
In this first-degree murder case there was sufficient evidence of premeditation and deliberation. Among other things, the evidence showed a lack of provocation by the victim, that just prior to the shooting the defendant told others that he was going to shoot a man over a trivial matter, that...
The trial court lacked subject matter jurisdiction to revoke the defendant’s probation when it did so after his probationary period had expired and he was not subject to a tolling period.
In this failure to register case based on willful failure to return a verification form as required by G.S. 14-208.9A, the trial court erred by denying the defendant’s motion to dismiss. To prove its case, the State must prove that the defendant actually received the letter containing the...
Where the judgment form mistakenly contained a reference to “Assault with a Deadly Weapon,” a charge on which the defendant was acquitted, but where the error did not affect the sentence imposed, the court remanded for correction of this clerical error. The court rejected the defendant’s...
A search of the defendant’s vehicle was properly done incident to the defendant’s arrest for an open container offense, where the officer had probable cause to arrest before the search even though the formal arrest did not occur until after the search was completed. The court noted that under...
Indictments charging obtaining property by false pretenses were not defective. The charges arose out of the defendant’s acts of approaching two individuals (Ms. Hoenig and Ms. Harward), falsely telling them their roofs needed repair, taking payment for the work and then performing shoddy work or...
In an obtaining property by false pretenses case, the trial did not err by failing to specify in the jury instructions the misrepresentation made by defendant or the property the defendant received. Noting that the trial court used the standard pattern jury instruction, N.C.P.I--Crim. 219.10,...
The trial court did not err by allowing the State to amend the victim’s name as stated in an indictment for assault with a deadly weapon from “Christina Gibbs” to “Christian Gibbs.”
The trial court did not commit plain error when it instructed the jury on attempted first-degree murder but failed to instruct on imperfect self-defense and on attempted voluntary manslaughter. In light of the fact that “the State introduced abundant testimony supporting a finding of defendant’s...
In this drug trafficking case where an SBI agent testified as an expert for the State and identified the substance in question as oxycodone, the court declined the defendant’s request to take judicial notice of Version 4 and 7 of SBI Laboratory testing protocols. Among other things, the...