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.
Instructions
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In this DWI case, the court held that the officer lacked reasonable suspicion to stop the defendant’s vehicle. At 10:05 pm on a Wednesday night an officer noticed that the defendant’s high beams were on. The officer also observed the defendant weave once within his lane of travel. When pressed...
The defendant’s confession was involuntary. The defendant’s first confession was made before Miranda warnings were given. The officer then gave the defendant Miranda warnings and had the defendant repeat his confession. The trial court suppressed the defendant’s pre-Miranda...
The evidence was sufficient to show that the defendant committed the offense of contributing to the delinquency/neglect of a minor. The court rejected the defendant’s argument that the State presented no evidence that the defendant was the minor’s parent, guardian, custodian, or caretaker,...
In this murder case, the trial court properly granted the defendant a new trial on the basis of newly discovered evidence. At trial one of the State’s most important expert witnesses was SBI Agent Duane Deaver, who testified as an expert in bloodstain pattern analysis. Deaver testified that the...
Under G.S. 15A-1445, the State could appeal the trial court’s order granting the defendant’s MAR on the basis of newly discovered evidence.
The trial court lacked jurisdiction to revoke the defendant’s probation and activate his sentence. Although the trial court revoked on grounds that the defendant had committed a subsequent criminal offense, such a violation was not alleged in the violation report. Thus, the defendant did not...
In a robbery case involving a purse snatching, a purse-snatching by the defendant 6 weeks prior was properly admitted under Rule 404(b). The court found that the incidents were sufficiently in that they both occurred in Wal-Mart parking lots and involved a purse-snatching from a female victim...
The trial court erred by granting the defendant’s MAR and retroactively applying 2009 amendments to the Structured Sentencing Act (SSA) to the defendant’s 2005 offenses. The court reasoned that the Session Law amending the SSA stated that “[t]his act becomes effective December 1, 2009, and...
State could appeal an amended judgment entered after the trial court granted the defendant’s MAR. The trial court entered the amended judgment after concluding (erroneously) that the 2009 amendments to the SSA applied to the defendant’s 2005 offenses.
Where the trial court determined that the defendant had 16 prior record points and was a prior record level V but the judgment indicated that he had 5 prior record points and was a prior record level III, the entries on the judgment were clerical errors.
(1) An indictment for contributing to the delinquency/neglect of a minor was not defective. The indictment tracked the statutory language but did not specify the specific acts at issue. An indictment for a statutory offense is sufficient if the offense is charged in the words of the statutes, or...
In a child sex case decided under pre-amended R. 702, the trial court did not abuse its discretion by admitting expert opinion that the victim suffered from post-traumatic stress disorder when a licensed clinical social worker was tendered as an expert in social work and routinely made mental...
At the MAR hearing, the trial court properly excluded the State’s expert witness, who did not testify at the original trial. The court viewed the State’s position as “trying to collaterally establish that the jury would have reached the same verdict based on evidence not introduced at trial.” It...
In criminal cases, the amendment to N.C.Evid. R. 702, which is “effective October 1, 2011, and applies to actions commenced on or after that date” applies to cases where the indictment is filed on or after that date. The court noted that it had suggested in a footnote in a prior unpublished...
Defendant had no right to appeal from the trial court’s orders modifying the terms of his probation and imposing Confinement in Response to Violation. For a discussion of this case, see my colleague’s blog post here.
Under Miller v. Alabama, 132 S. Ct. 2455 (2012), the trial court violated the defendant’s constitutional right to be free from cruel and unusual punishment by imposing a mandatory sentence of life imprisonment without the possibility of parole upon him despite the fact that he was under...
In this first-degree murder case, the evidence was sufficient to show premeditation and deliberation. After some words in a night club parking lot the defendant shot the victim, who was unarmed, had not reached for a weapon, had not engaged the defendant in a fight, and did nothing to provoke...
In a murder case, trial counsel did not impermissibly concede the defendant’s guilt under Harbison. Although defense counsel never explicitly conceded the defendant’s guilt during trial, she did make factual concessions, including admitting that the defendant was present at the shooting...
In a counterfeit controlled substance case, the trial court committed plain error by admitting evidence identifying a substance as tramadol hydrochloride based solely upon an expert’s visual inspection. The State’s witness Brian King, a forensic chemist with the State Crime Lab, testified that...
In a counterfeit controlled substance case where the defendant was alleged to have sold tramadol hydrochloride, representing it to be Vicodin, evidence that he also possessed Epsom salt in a baggie was properly admitted under Rule 404(b). The salt bore a sufficient similarity to crack cocaine in...
The trial court lacked jurisdiction to sentence the defendant for larceny of goods worth more than $1,000 when the indictment charged that the defendant stole “property having a value of $1,000.”
The evidence was sufficient to establish assault by strangulation. The victim testified that the defendant strangled her twice; the State’s medical expert testified that the victim’s injuries were consistent with strangulation; and photographic evidence showed bruising, abrasions, and a bite...
The court dismissed the defendant’s claim that counsel’s trial strategy constituted ineffectiveness under Strickland. This claim was dismissed without prejudice to the defendant’s right to assert the claim in a Motion for Appropriate Relief.
The trial court erred by sentencing the defendant for both larceny from the person and larceny of goods worth more than $1,000 based on a single larceny. Larceny from the person and larceny of goods worth more than $1,000 are not separate offenses, but alternative ways to establish that a...
A larceny was from the person when the defendant stole the victim’s purse, which was in the child’s seat of her grocery store shopping cart. At the time, the victim was looking at a store product and was within hand’s reach of her cart; additionally she realized that the larceny was occurring as...
In a murder case, the trial court was not required to intervene ex mero motu when the prosecutor argued to the jury that depression might make you suicidal but it “doesn’t make you homicidal.” The defendant’s witness had testified that depression can make a person suicidal. In context, the...
Applying the Justice Reinvestment Act (JRA), the court held that the trial court improperly revoked the defendant’s probation. The defendant violated the condition of probation under G.S. 15A-1343(b)(2) that she not leave the jurisdiction without permission and monetary conditions under G.S. 15A...
In a murder case, the trial court did not err by excluding testimony of Susan Strain, a licensed social worker. Strain worked with the defendant’s step-father for several years and testified that she occasionally saw the defendant in the lobby of the facility where she worked. The State objected...
The trial court erred by dismissing an indictment charging the defendant with violating an ex parte domestic violence protective order (DVPO) that required him to surrender his firearms. The trial court entered an ex parte Chapter 50B DVPO prohibiting the defendant from contacting his wife and...
The trial court did not commit plain error by failing to redact portions of a transcript of the defendant’s interrogation where the challenged statements were relevant. The court rejected the defendant’s argument that the trial court should have redacted statements made by the detective, finding...
An officer lacked reasonable suspicion to stop the defendant’s vehicle. A “be on the lookout” call was issued after a citizen caller reported that there was a cup of beer in a gold Toyota sedan with license number VST-8773 parked at the Kangaroo gas station at the corner of Wake Forest Road and...
An officer lacked reasonable suspicion to stop the defendant’s vehicle. A “be on the lookout” call was issued after a citizen caller reported that there was a cup of beer in a gold Toyota sedan with license number VST-8773 parked at the Kangaroo gas station at the corner of Wake Forest Road and...
The trial court did not err by denying the defendant’s motion to suppress evidence discovered as a result of a protective sweep of his residence where the officers had a reasonable belief based on specific and articulable facts that the residence harbored an individual who posed a danger to the...
Where no evidence negated the State’s proof of first-degree murder, the trial court did not err by denying the defendant’s request for an instruction on second-degree murder.
In an impaired driving case, evidence that the defendant’s BAC was .09 was sufficient to survive a motion to dismiss, notwithstanding evidence that the machine may have had a margin of error of .02. The court concluded: “Defendant’s argument goes to the credibility of the State’s evidence, not...
In a first-degree murder case there was sufficient evidence of premeditation and deliberation. There was evidence that the victim begged for his life, that the victim’s body had eight gunshot wounds, primarily in the head and chest, and there was a lack of provocation.
(1) Reversing the trial court, the court held that the Town of Chapel Hill’s Towing Ordinance is a valid exercise of police power under G.S. 160A-174(a). (2) The trial court improperly enjoined enforcement of the Town’s Mobile Phone Ordinance. The ordinance prohibits the use of mobile phones...
(1) North Carolina had territorial jurisdiction to prosecute the defendant for embezzlement. The defendant was a long distance driver employed by a North Carolina moving company. The defendant was charged with having received funds from a customer out-of-state and having converted them to his...
The trial court did not abuse its discretion by denying defense counsel’s motion to withdraw or in the alternative for a continuance. In the four months prior to trial, the defendant failed to provide counsel with the names of potential defense witnesses. However, no justification was provided...
There was sufficient evidence that a theft and use of force were part of a continuous transaction. A witness testified that the defendant went to the victim’s mobile home with the intent to rob him, shot and killed the victim, and left with money and drugs.
The evidence was sufficient to show a conspiracy to commit a robbery with a dangerous weapon. The defendant argued that there was no express agreement to use a dangerous weapon. The court held, in part, that there was an implied understanding to use such a weapon.
In this drug trafficking case, notice was properly given under the G.S. 90-95(g) notice and demand statute even though it did not contain proof of service or a file stamp. The argued-for service and filing requirements were not required by Melendez-Diaz or the statute. The notice was...
An investigative stop of the defendant’s vehicle was lawful. Officers stopped the defendant’s vehicle because it was registered in her name, her license was suspended, and they were unable to determine the identity of the driver.
G.S. 14-415.1(a), proscribing the offense of felon in possession of a firearm, does not apply to the plaintiff, who had received a Pardon of Forgiveness from the NC Governor for his prior NC felony. The court relied on G.S. 14-415.1(d), which provides in part that the section does not apply to a...
Although the trial court erred when instructing the jury on first-degree burglary, no plain error occurred. The first-degree burglary indictment alleged that the defendant entered the dwelling with intent to commit larceny. The trial court instructed the jury that it could find the defendant...
The evidence was sufficient to show that the defendant committed second-degree murder either alone or in concert with others. The defendant was present with two men who borrowed a red Ford from David Andrews. The three men did not return the car to Andrews and the defendant was later seen...
The trial court did not err by allowing the State to amend an embezzlement indictment. The indictment originally alleged that “the defendant . . . was the employee of MBM Moving Systems, LLC . . . .” The amendment added the words “or agent” after the word “employee.” The court rejected the...
In a case where an inmate was charged with carrying a concealed weapon, there was sufficient evidence that the weapon was “concealed about his person.” Officers found one razor blade stuck to the underside of a table top in the day room adjoining the defendant’s cell, where the defendant had...
In a communicating threats case, the State presented sufficient evidence that a detention officer believed that the defendant—an inmate—would carry out his threats against her.
The trial court erred by granting the defendant’s motion to suppress breath test results from an Intoximeter EC/IR II. The trooper administered the first breath test, which returned a result of .10. When the trooper asked for a second sample, the defendant did not blow hard enough and the...
The defendant had adequate notice and opportunity to be heard before the trial court imposed court costs.
Where the evidence showed that the defendant committed the completed crime of felony larceny, the evidence was sufficient to support a conviction of the lesser charged offense of attempted felony larceny.
The trial court did not err by denying the defendant’s request for a special instruction concerning the effect of drug use on a witness’s credibility where the trial court gave the general witness credibility instruction.
(1) On the State’s appeal from the trial court order terminating the defendant’s sex offender registration, the court noted that when a defendant seeks to be removed from the registry because he was erroneously required to register, the more appropriate avenue for relief is a declaratory...
The court adopted the following standard of review of a denial for post-conviction DNA testing: Findings of fact are binding if supported by competent evidence and may not be disturbed absent an abuse of discretion; conclusions of law are reviewed de novo.
The Rules of Evidence do not apply to DMV license revocation hearings pursuant to G.S. 20-16.2.
In a heroin trafficking case where the defendant argued that he did not know that the item he possessed was heroin, the trial court committed plain error by denying the defendant’s request for a jury instruction that the State must prove that the defendant knew that he possessed heroin (footnote...
The trial court did not err by failing to make specific findings of fact when denying the defendant’s request for post-conviction DNA testing under G.S. 15A-269. The statute contains no requirement that the trial court make specific findings of fact.
In a heroin trafficking case where the defendant argued that he did not know that the item he possessed was heroin, the trial court committed plain error by denying the defendant’s request for a jury instruction that the State must prove that the defendant knew that he possessed heroin (footnote...
The trial court did not err by failing to appoint counsel to represent the defendant on a motion for post-conviction DNA testing. The trial court is required to appoint counsel for a motion under G.S. 15A-269 only if the defendant makes a showing of indigence and that the DNA testing is material...
(1) When a trial judge conducts an initial review of an application for the issuance of a writ of habeas corpus, the issues are whether the application is in proper form and whether the applicant has established a valid basis for believing that he or she is being unlawfully detained and entitled...
Based on the elements of the two offenses, the trial court erred by concluding that a prior Ohio conviction was substantially similar to the North Carolina crime of assault with a deadly weapon with intent to kill.
In this murder case the trial court did not abuse its discretion by denying the defendant’s motion to continue. The defendant sought the continuance so that he could procure an expert to evaluate and testify regarding the State’s DNA evidence. The court rejected the defendant’s argument that by...
The court rejected the defendant’s argument that by using the phrase “the victim” while instructing the jury the trial court expressed an opinion regarding a fact in violation of G.S. 15A-1232; the court found that the defendant failed to show prejudice.
(1) Notwithstanding the defendant’s testimony that the gun used in a robbery was unloaded, the trial court properly denied the defendant’s motion to dismiss an armed robbery charge. The victim testified that the defendant entered her business, pointed a gun at her and demanded money. The...
(1) The trial court gave the State proper notice when it made a sua sponte oral MAR in open court one day after judgment had been entered. (2) The trial court did not violate the MAR provision stating that any party is entitled to a hearing on a MAR where the State did not request a hearing but...
The defendant was properly convicted of two counts of malicious conduct by a prisoner when he twice spit on an officer while officers were attempting to secure him. The defendant had argued that only conviction was proper because his conduct occurred in a continuous transaction. The court found...
In a case involving charges of obtaining property by false pretenses arising out of sales to a pawn shop in which another person told the shop that the items were not stolen, the evidence was insufficient to show that the defendant was acting in concert. Assuming that the State sufficiently...
In a second-degree rape and sexual offense case, the evidence sufficiently established use of force. The victim repeatedly declined the defendant’s advances and told him to stop and that she didn’t want to engage in sexual acts. The defendant pushed her to the ground. When he was on top of her...
In a DWI case, an officer’s testimony supported an instruction that the jury could consider the defendant’s refusal to take a breath test as evidence of her guilt.
In an obtaining property by false pretenses case based on the defendant having falsely represented to a pawn shop that items sold to the shop were not stolen, there was sufficient evidence that the items were stolen. As to the first count, the serial number of the item sold as shown on the shop’...
Although the trial court erred by admitting in a motion for appropriate relief (MAR) hearing a juror’s testimony about the impact on his deliberations of his conversation with the defendant’s mother during trial, the trial court’s findings supported its determination that there was no reasonable...
(1) The trial court did not err by denying the defendant’s motion to suppress statements to officers on grounds that they were obtained in violation of G.S. 15A-501(2) (arrested person must be taken before a judicial official without unnecessary delay). After a consensual search of his residence...
Because evidence of vaginal penetration was clear and positive, the trial court did not err by failing to instruct the jury on attempted rape.
In a drug trafficking case where the record failed to indicate that law enforcement officers utilized acts of persuasion, trickery or fraud to induce the defendant to commit a crime, or that the criminal design originated in the minds of law enforcement rather than with the defendant, the trial...
Although an officer had reasonable suspicion to stop a juvenile, the officer’s subsequent conduct of ordering the juvenile to empty her pockets constituted a search and this search was illegal; it was not incident to an arrest nor consensual. The district court thus erred by denying the juvenile...
Although the trial court erred by admitting in a motion for appropriate relief (MAR) hearing a juror’s testimony about the impact on his deliberations of his conversation with the defendant’s mother during trial, the trial court’s findings supported its determination that there was no reasonable...
Because evidence of vaginal penetration was clear and positive, the trial court did not err by failing to instruct the jury on attempted rape.
(1) The trial court did not err by denying the defendant’s motion to suppress statements to officers on grounds that they were obtained in violation of G.S. 15A-501(2) (arrested person must be taken before a judicial official without unnecessary delay). After a consensual search of his residence...
(1) The trial court did not put the burden on the State to disprove extraordinary mitigating factors. After the defendant presented evidence of mitigating factors, the trial court asked the State to respond to the defendant’s evidence by explaining why it believed these factors were not...
The trial court lacked jurisdiction to revoke the defendant’s probation on the basis of a violation that was not alleged in the violation report and of which she was not given notice. The violation reports alleged that the defendant violated two conditions of her probation: to “[n]ot use,...
(1) An officer had reasonable suspicion that a juvenile was violating G.S. 14-313(c) (unlawful for person under 18 to accept receipt of cigarettes) and thus the officer’s initial stop of the juvenile was proper.
The court rejected the defendant’s argument that his revocation was improper because the attorney who represented him at the revocation hearing was not his appointed attorney and trial court made no findings about a substitute attorney. Any error that occurred was not prejudicial.
The trial court did not err when during a retrial in a DWI case it instructed the jury that it could consider the defendant’s refusal to take a breath test as evidence of her guilt even though during the first trial a different trial judge had ruled that the instruction was not supported by the...
Counsel was ineffective by failing move to suppress evidence obtained by a “patently unconstitutional seizure.” The State conceded that the evidence was obtained illegally but argued that counsel’s failure to move to suppress could have been the result of trial strategy. The court rejected this...
In a drug trafficking case, a search warrant was supported by probable cause. The affiant was an officer with more than 22 years of experience and who had been involved in numerous drug investigations. The affidavit included background on the circumstances of the detective’s dealings with the...
The trial court committed plain error by instructing the jury that the defendant was not entitled to the benefit of self-defense if she was the aggressor when no evidence suggested that the defendant was the aggressor.
The court rejected the defendant’s argument that the trial court violated his rights under the ex post facto clause when it assigned points to his prior record level based upon a conviction that was entered after the date of the offenses for which he was sentenced in the present case. The court...
(1) The evidence was sufficient to support a charge of conspiracy to traffic in cocaine by possession. A detective arranged for a cocaine sale. The defendant and an individual named Blanco arrived at the preset location and both came over to the detective to look at the money. The defendant and...
Where the defendant stipulated to the worksheet’s classification of a South Carolina conviction as a Class I felony, the trial court correctly assigned two points for that conviction. The court reasoned that the defendant knew of the worksheet’s contents and had ample opportunity to object to...
The evidence was sufficient to support a charge of trafficking in cocaine by possession. A detective set up a cocaine sale. The defendant and an individual named Blanco arrived at the location and both came over to the detective to look at the money. The defendant and Blanco left together, with...
(1) In a second-degree rape and sexual offense case, the evidence sufficiently established use of force. The victim repeatedly declined the defendant’s advances and told him to stop and that she didn’t want to engage in sexual acts. The defendant pushed her to the ground. When he was on top of...
(1) On direct appeal, the court rejected the juvenile’s assertion that counsel’s failure to make a closing argument in a delinquency proceeding was per se ineffective assistance. (2) In a delinquency case in which the juvenile was alleged to have assaulted another child, the court rejected the...
The court rejected the State’s argument that the defendant initiated contact with the police following his initial request for counsel and thus waived his right to counsel. After the defendant asserted his right to counsel, the police returned him to the interrogation room and again asked if he...
The court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss where the defendant’s argument went to issues of credibility.
The trial court did not err by denying the defendant’s motion to dismiss a charge of involuntary manslaughter where a person under 21 years of age died as a result of alcohol poisoning and it was alleged that the defendant aided and abetted the victim in the possession or consumption of alcohol...
The trial court erred by admitting expert testimony regarding DNA evidence that amounted to a "prosecutor's fallacy." That fallacy, the court explained, involves the use of DNA evidence to show "random match probability." Random match probability evidence, it continued, is the probability that...
The court rejected the defendant’s argument that the trial court erred by denying his petition for removal from the sex offender registry because the incorporation of the Adam Walsh Act and SORNA into G.S. 14-208.12A(a1)(2) was an unconstitutional delegation of legislative authority. The court...
The trial court’s findings of fact support its rejection of the defendant’s argument that the show of force by law enforcement during a traffic stop amounted to an arrest.
There was insufficient evidence to support a delinquency adjudication for sexual battery. Although there was sufficient evidence of sexual contact, there was insufficient evidence of a sexual purpose. When dealing with children, sexual purpose cannot be inferred from the act itself and that...
There was a sufficient factual basis for the defendant’s pleas to possession of a stolen firearm and possession with intent to sell or deliver a controlled substance. There was evidence that the gun was stolen and that the defendant knew or had reasonable grounds to know that. There was also...
In an involuntary manslaughter case where the victim, who was under 21, died from alcohol poisoning and the defendant was alleged to have aided and abetted the victim in the possession or consumption of alcohol, the trial court did not err by admitting 404(b) evidence that the defendant provided...
The court rejected the State’s argument that the defendant initiated contact with the police following his initial request for counsel and thus waived his right to counsel. After the defendant asserted his right to counsel, the police returned him to the interrogation room and again asked if he...
In a child sex case, the trial court did not err by allowing the State’s properly qualified medical expert to testify that the victim’s profile was consistent with that of a sexually abused child. The court rejected the defendant’s argument that the State failed to lay a proper foundation for...
The trial court did not commit plain error by failing to instruct on defense of others. The defendant’s statement that he was defending himself, his vehicle and his wife was not evidence from which the jury could find that the defendant reasonably believed a third person was in immediate peril...
The trial court did not err by allowing heroin recovered from the defendant's person outside the apartment to be combined with the heroin recovered from the apartment for the purposes of arriving at a trafficking amount for trafficking by possession. The defendant was observed entering the...
(1) The trial court committed plain error by instructing the jury on the crime of stalking under the new stalking statute, G.S. 14-277.3A, when the charged course of conduct occurred both before and after enactment of the new statute. The new version of the stalking statute lessened the burden...
In a drug case, the trial court did not err by allowing one analyst to testify to the results of an analysis done by another non-testifying analyst. The analysis at issue identified the pills as oxycodone. The defendant did not object to the analyst’s testimony at trial or to admission of the...
The trial court committed plain error by allowing the State to cross-examine the defendant about his failure to make a post-arrest statement to officers and to comment in closing argument on the defendant’s decision to refrain from giving such a statement. The following factors, none of which is...
In a case in which the victim died after consuming drugs provided by the defendant and the defendant was convicted of involuntary manslaughter, the trial court did not err by instructing the jury on second-degree murder and the lesser offense of involuntary manslaughter. The defendant objected...
The trial court’s order requiring the defendant to enroll in SBM, although signed and dated by the trial court, was never filed with the clerk of court and therefore was a nullity.
The trial court did not err by failing to grant the defendant a new trial on his MAR where the State failed to disclose in discovery more than 1,800 pages of material to which the defendant was entitled. The court was unable to conclude that but for the nondisclosure a different result would...
The trial court properly required the defendant to enroll in lifetime SBM. When deciding whether a conviction counts as a reportable conviction as an “offense against a minor”, the trial court is not restricted to considering the elements of the offense; the trial court may make a determination...
In a case in which the victim died after consuming drugs provided by the defendant and the defendant was convicted of involuntary manslaughter, the trial court did not err by instructing the jury on second-degree murder and the lesser offense of involuntary manslaughter. The defendant objected...
In a murder case, the trial court did not violate the defendant’s constitutional right to reasonable notice of evidence or his statutory right to discovery by allowing the State to present an expert toxicologist’s testimony. As part of his investigation, Dr. Jordan, a local medical examiner,...
The trial court erred by requiring the defendant to enroll in SBM. After finding that the defendant did not fall into any of the categories requiring SBM under G.S. 14-208.40, the trial court nonetheless ordered SBM enrollment for 30 years, on grounds that his probation was revoked and he failed...
In a murder case, the defendant’s right of confrontation was not violated when Dr. Jordan, an expert medical examiner, testified that in his opinion the cause of death was methadone toxicity. As part of his investigation, Jordan sent a specimen of the victim’s blood to the Office of the Chief...
The trial court committed plain error by instructing the jury on the crime of stalking under the new stalking statute, G.S. 14-277.3A, when the charged course of conduct occurred both before and after enactment of the new statute. The new version of the stalking statute lessened the burden on...
There was sufficient evidence of embezzlement where the defendant, a bookkeeper controller for the victim company, was instructed to close the company’s credit cards but failed to do so, instead incurring personal charges on the cards and paying the card bills from company funds. The court...
No plain error occurred when the trial court referred to the prosecuting witness as “the victim.” The court rejected the defendant’s argument that a different result should obtain because he asserted self-defense.
In a case in which the victim died after consuming drugs provided by the defendant and the defendant was convicted of involuntary manslaughter, the trial court did not err by instructing the jury on second-degree murder and the lesser offense of involuntary manslaughter. The defendant objected...
The trial court improperly denied the defendant’s motion to suppress. An officer saw the defendant walking in the middle of the street. The officer stopped the defendant to warn him about impeding the flow of street traffic. After issuing this warning, the officer frisked the defendant because...
A defendant may not challenge the validity of an indictment in an appeal challenging revocation of probation. In such circumstances, challenging the validity of the original judgment is an impermissible collateral attack.
A defendant may not challenge the validity of an indictment in an appeal challenging revocation of probation. In such circumstances, challenging the validity of the original judgment is an impermissible collateral attack.
There was sufficient evidence that the defendant was a recidivist for purposes of lifetime SBM. The prior record worksheet and defense counsel’s stipulation to the prior convictions support a finding that the defendant had been convicted of indecent liberties in 2005, even though it appears that...
The court rejected the defendant’s argument that the State’s failure to comply with the requirements of the G.S. 90-95 notice and demand statute with respect to the analyst’s report created error. In addition to failing to object to admission of the report, both the defendant and defense counsel...
The trial court did not commit plain error by failing to instruct on perfect or imperfect self-defense or perfect or imperfect defense of others where no evidence supported those instructions.
(1) In a case in which the victim died after consuming drugs provided by the defendant and the defendant was convicted of involuntary manslaughter, the trial court did not err by instructing the jury on second-degree murder and the lesser offense of involuntary manslaughter. The defendant...
(1) The trial court did not err by activating the defendant’s sentence on the basis that the defendant absconded by willfully avoiding supervision. The defendant’s probation required that he remain in the jurisdiction and report as directed to the probation officer. The violation report alleged...
There was sufficient evidence that the defendant had constructive possession of heroin found in an apartment that was not owned or rented by him. Evidence that the defendant was using the apartment included that he had a key to the apartment on his key ring, his clothing was found in the bedroom...
The trial court erred by instructing the jury on the offense of discharging a firearm into a vehicle that is in operation under G.S. 14-34.1(b) where the indictment failed to allege that the vehicle was in operation. However, because the indictment properly charged discharging a firearm into an...
In a case in which the defendant was convicted of rape of a child under G.S. 14-27.2A, there was substantial testimony to establish that the defendant engaged in vaginal intercourse with the victim. The victim testified that the defendant put his “manhood inside her middle hole.” Although the...
The trial court did not err by finding the defendant’s statements to his wife voluntary. The defendant’s wife spoke with him five times while he was in prison and while wearing a recording device provided by the police. The wife did not threaten defendant but did make up evidence which she...
In a kidnapping and armed robbery case the evidence was sufficient that the defendant acted in concert with an accomplice. Although the defendant argued that the evidence established that he was merely present at the scene, the evidence showed that he aided his co-conspirator.
The evidence was sufficient to establish that the defendant obtained property by false pretenses where she sold products alleged to be gluten free but in fact contained gluten. The defendant argued that the evidence was insufficient as to one victim because he returned the check she gave him in...
In a murder case, the trial court did not err by admitting a knife found four years after the crime at issue. The defendant objected on relevancy grounds. The defendant’s wife testified that he told her that he murdered the victim with a knife that matched the description of the one that was...
Because the defendant was sentenced in the presumptive range, the trial court did not err in failing to make findings regarding a mitigating factor.
In a case in which the defendant was charged with obtaining property by false pretenses for selling products alleged to be gluten free but which in fact contained gluten, the trial court did not err by allowing an ill witness to testify by way of a two-way, live, closed-circuit web broadcast....
The trial court committed prejudicial error by failing to exercise discretion in responding to the deliberating jury’s request to review evidence. The trial court indicated that the requested information was “not in a form which can be presented to [the jury.]” The court found that this...
In a homicide case, the trial court did not err by instructing on flight. The State’s evidence showed that officers were unable to locate the defendant for several months following the shooting. The defendant resided at his aunt’s house before the 2:30 am shooting and instead of returning there...
No violation of the defendant’s confrontation rights occurred when the trial court admitted an unavailable witness’s testimony at a proceeding in connection with the defendant’s Alford plea under the Rule 804(b)(1) hearsay exception for former testimony. The witness was unavailable and...
In an attempted murder and assault case, the trial court committed plain error by allowing an officer to testify about gangs and gang-related activity where the evidence was not relevant to guilt or to the aggravating factor that the crimes were gang-related. The State’s theory was that the...
In this civil case the court held that an officer’s accident report, prepared near the time of the accident, using information from individuals who had personal knowledge of the accident was admissible under the Rule 803(6) hearsay exception.
No violation of the defendant’s confrontation rights occurred when an officer testified to statements made to him by others where the statements were not introduced for their truth but rather to show the course of the investigation, specifically why officers searched a location for evidence.
The evidence was sufficient to show that either the defendant or his accomplice used a firearm to induce the victim to part with her purse.
(1) Indictments charging the defendant with obtaining property by false pretenses were not defective. The indictments alleged in part that “[t]he defendant sold bread products to the victim that were advertised and represented as Gluten Free when in fact the defendant knew at the time that the...
The trial court properly admitted an unavailable witness’s testimony at a proceeding in connection with the defendant’s Alford plea under the Rule 804(b)(1) hearsay exception for former testimony. The court rejected the defendant’s argument that the testimony was inadmissible because he...
The court rejected the defendant’s argument that the trial court erred by failing to give additional jury instructions in open court and make them a part of the record as required by G.S. 15A-1234. Where, as here, the trial judge simply repeats or clarifies instructions previously given and does...
When determining prior record level, the trial court erroneously concluded that a Georgia conviction for theft was substantially similar to misdemeanor larceny without hearing any argument from the State. Additionally, the Georgia offense is not substantially similar to misdemeanor larceny; the...
(1) In a child sex case, the trial court did not err by qualifying as an expert a family therapist who provided counseling to both victims. The court first concluded that the witness possessed the necessary qualifications. Among other things, she had a master’s degree in Christian counseling and...
In an embezzlement case, no fatal variance occurred where the indictment alleged that Smokey Park Hospitality, Inc., d/b/a Comfort Inn had an interest in the property. Although the evidence showed that Smokey Park Hospitality never owned the hotel, it acted as a management company and ran the...
(1) An indictment charging statutory rape of a 13, 14, or 15 year old was not defective because it alleged that the defendant did “carnally know” the victim. The court rejected the argument that the indictment was required to allege that “vaginal intercourse” occurred, concluding that the two...
The trial court erred by failing to issue a written order denying the defendant’s motion to suppress. A written order is necessary unless the court announces its rationale from the bench and there are no material conflicts in the evidence. Here, although the trial court announced its ruling from...
A hotel owner had personal knowledge and could testify to the responsibilities of the defendant, the hotel’s general manger, with respect to removing deposits from the hotel safe and other related matters.
The trial court erred by denying the defendant’s motion to dismiss false pretenses charges. The State failed to offer sufficient evidence to establish that the defendant made a false representation with the intent to deceive when he told the victims that he intended to invest the money that they...
The court reversed and remanded for a new trial where the trial court failed to exercise its discretion regarding the jury’s request to review the victim’s testimony and the error was prejudicial. Responding to the jury’s request, the trial court stated, in part, “We can’t do that.” This...
The trial court did not violate G.S. 15A-1335 when on remand it sentenced the defendant to a term that was longer than he originally received. The trial court initially imposed an illegal term, sentencing the defendant to a presumptive range sentence of 120 to 153 months; the correct presumptive...
The trial court did not err by failing to conduct a Batson hearing where the defendant failed to establish a prima facie case of discrimination. At the time the defendant objected, the State's acceptance rate, excluding jurors dismissed for cause, was 25% for African Americans, and 80%...
The trial court did not err by admitting a murder victim’s hearsay statement to her sister-in-law under the Rule 803(3) then existing mental, emotional or physical condition hearsay exception. The murder victim told her sister-in-law that the defendant was harassing her and had threatened her....
The trial court did not err by denying the defendant’s motion to dismiss a charge of possession with intent to sell and deliver cocaine where there was sufficient evidence of constructive possession. Because the defendant did not have exclusive possession of the bedroom where the drugs were...
(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of possession with the intent to sell or deliver a counterfeit controlled substance. The court rejected the argument that to be considered a counterfeit controlled substance, the State must prove all three...
The trial court erred by dismissing murder charges pursuant to G.S. 15A-954(a)(4) (flagrant violation of constitutional rights causing irreparable prejudice). The court first held that the trial court erred by finding that destruction of the victim’s bones resulted in a flagrant violation of...
The trial court did not impermissibly place the burden of proof on the defendant at a suppression hearing. Initially the burden is on the defendant to show that the motion is timely and in proper form. The burden then is on the State to demonstrate the admissibility of the challenged evidence....
The trial court did not err by denying a fourteen-year-old juvenile’s motion to suppress his oral admissions to investigating officers. The motion asserted that the juvenile was in custody and had not been advised of his rights under Miranda and G.S. 7B-2101. The court found that the...
G.S. 15A-903 requires production of already existing documents; it imposes no duty on the State to create or continue to develop additional documentation regarding an investigation. To the extent the trial court concluded that the State violated statutory discovery provisions because it failed...
(1) The trial court erred by concluding that the defendant required the highest level of supervision and monitoring and ordering him to enroll in SBM for ten years when the STATIC-99 risk assessment classified him as a low risk and the trial court’s additional findings were not supported by the...
Officers had probable cause to arrest the defendant for impaired driving. An officer saw the defendant lying behind a car on the ground, with his shirt over his head and his head in the sleeve hole. The defendant appeared unconscious. When the officer tried to arouse the defendant, he woke up...
The trial court erred by ordering suppression as a sanction for the State’s failure to document and disclose various communications between agencies and individuals involved in the investigation. The court began by noting that G.S. 15A-903 requires production of already existing documents; it...
The trial court erred by dismissing with prejudice murder charges as a sanction for discovery violations where the record did not reveal a basis for the determination that dismissal was an appropriate sanction. Additionally, because the defendant actually received before trial the evidence the...
The trial court did not err in calculating the defendant’s prior record level. The trial court considered the defendant’s two federal felony convictions as Class I felonies for purposes of calculating prior record level. Because the defendant made no showing that either conviction was...
In a case in which the defendant was convicted of soliciting a child by computer and attempted indecent liberties on a child, the trial court erred by concluding that the defendant’s laptop would have been inevitably discovered. The trial court ordered suppressed the defendant’s statements to...
The trial court erred by revoking the defendant’s probation. The defendant pleaded guilty and was sentenced to 120 days confinement suspended for one year of supervised probation. The trial court ordered the defendant to perform 48 hours of community service, although no date for completion of...
In an appeal from a conviction obtained in the Eve Carson murder case, the court held that the defendant was entitled to a new sentencing hearing in accordance with G.S. 15A-1476 (recodified as G.S. 15A-1340.19A), the statute enacted by the North Carolina General Assembly to bring the State’s...
The court rejected the juvenile’s argument that his statement was involuntary. The juvenile had argued that because G.S. 20-166(c) required him to provide his name and other information to the nearest officer, his admission to driving the vehicle was involuntary. The court rejected this argument...
In a drug case the court held that probable cause and exigent circumstances supported a roadside search of the defendant’s underwear conducted after a vehicle stop and that the search was conducted in a reasonable manner. After finding nothing in the defendant’s outer clothing, the officer...
In an appeal from a conviction obtained in the Eve Carson murder case, the court held that counsel did not commit a Harbison error (unconsented to admission of guilt by counsel). Even taken out of context, the remark at issue did not even approach a concession of guilt.
In an appeal from a conviction obtained in the Eve Carson murder case, the trial court did not abuse its discretion by denying three of the defendant’s challenges for cause during jury selection. The defendant failed to preserve for appellate review challenges as to two of the jurors. As to the...
In an appeal from a conviction obtained in the Eve Carson murder case, the court held that a robbery indictment was not fatally defective. The indictment alleged that the defendant:
unlawfully, willfully and feloniously did steal, take, and carry away and attempt to steal, take...
In a misdemeanor possession of marijuana case, the State was not required to test the substance alleged to be marijuana where the arresting officer testified without objection that based on his training the substance was marijuana. The officer’s testimony was substantial evidence that the...
A trial court’s order denying a motion to suppress is not invalid merely because the trial court did not make its findings immediately after the suppression hearing where the trial court later made the required findings.
An indictment for felon in possession of a firearm was fatally defective because the charge was included as a separate count in a single indictment also charging the defendant with assault with a deadly weapon. G.S. 14-415.1(c) requires that possession of a firearm by a felon be charged in a...
A thirteen-year-old juvenile was not in custody within the meaning of G.S. 7B-2101 or Miranda during a roadside questioning by an officer. Responding to a report of a vehicle accident, the officer saw the wrecked vehicle, which had crashed into a utility pole, and three people walking...
In a resist, delay and obstruct case arising out of an incident of indecent exposure, the trial court did not abuse its discretion by denying the defendant’s mistrial motion when an officer testifying for the State indicated that the defendant said he was a convicted sex offender. The trial...
The trial court erred in sentencing the defendant as a habitual felon because the issue was neither submitted to the jury nor addressed by a guilty plea. A mere stipulation to the prior felonies is insufficient; there must be a jury verdict or a record of a guilty plea.
There was a sufficient factual basis for the defendant’s plea to felony breaking or entering where the State’s summary of the evidence was sufficient under G.S. 15A-1022(c). The State indicated that BB&T owned a residence located at 128 Lake Drive in Candler as a result of a foreclosure and...
The defendant was entitled to a new trial where the trial court proceeded to trial over the defendant’s objection to continued representation by appointed counsel who had previously represented one of the State’s witnesses. At a pretrial hearing the State informed the trial court that defense...
(1) In a resisting, delaying, obstructing case, the trial court did not err by instructing the jury that an arrest for indecent exposure would be a lawful arrest where the defendant never claimed at trial that he was acting in response to an unlawful arrest, nor did the evidence support a...
The evidence was sufficient to sustain a juvenile’s adjudication as delinquent for driving with no operator’s license under the corpus delicti rule. The thirteen-year-old juvenile admitted that he drove the vehicle. Ample evidence, apart from this confession existed, including that the juvenile...
A thirteen-year-old juvenile was not in custody within the meaning of G.S. 7B-2101 or Miranda during a roadside questioning by an officer. Responding to a report of a vehicle accident, the officer saw the wrecked vehicle, which had crashed into a utility pole, and three people walking...
The evidence was insufficient to adjudicate the thirteen-year-old juvenile delinquent for unauthorized use of a motor vehicle. Although the evidence showed that the juvenile was operating a motor vehicle registered to his mother, there was no evidence that he was using the vehicle without his...
The evidence was insufficient to adjudicate the thirteen-year-old juvenile delinquent for reckless driving under G.S. 20-140(b). The evidence showed that the juvenile was driving a vehicle registered to his mother at the time of the wreck and that the vehicle that he was driving collided with a...
In an appeal from a conviction obtained in the Eve Carson murder case, the trial court did not abuse its discretion by overruling the defendant’s objections to the State’s questions during jury selection. The defendant objected to questions about whether jurors could consider testimony by...
There was sufficient evidence of an intent to kill when during a robbery the defendant fired a gun beside the store clerk’s head and the clerk testified that he thought the defendant was going to kill him.
The court rejected the defendant’s argument that a photographic lineup was impermissibly suggestive because the defendant’s photo was smaller than others in the array.
When the trial court enters a PJC, there is no final judgment from which to appeal.
In a case in which the defendant was charged with various crimes related to his shooting of his pregnant wife, the trial court did not err by limiting the defendant’s voir dire of prospective jurors. The charges against the defendant included first-degree murder of his child, who was born alive...
In determining whether out-of-state convictions were substantially similar to NC offenses, the trial court erred by failing to compare the elements of the offenses and instead comparing their punishment levels.
The trial court did not abuse its discretion by revoking the defendant’s probation under the Justice Reinvestment Act when the defendant was convicted of another criminal offense while on probation.
The trial court did not err by finding that a NY drug conviction for third-degree drug sale was substantially similar to a NC Class G felony under G.S. 90-95. Comparing the two states’ statutes, the offenses were substantially similar, notwithstanding the fact that the states’ drug schedules are...
In a case in which the defendant was charged with first-degree murder, the trial court did not err by denying the defendant’s request for a second-degree murder charge where there was no evidence to negate the State’s proof of every element of first-degree murder; the defendant’s defense was...
The State presented sufficient evidence that the defendant acted with premeditation and deliberation where, among other things, the defendant did not want a second child and asked his wife to get an abortion, he was involved in a long-term extramarital affair with a another woman who testified...
The trial court erred by assigning a PRL point under G.S. 15A-1340.14(b)(6) (one point if all the elements of the present offense are included in any prior offense). The trial court assigned the point because the defendant was convicted of felony speeding to elude (Class H felony) and had a...
In a habitual misdemeanor assault case, the trial court erred by failing to instruct the jury that the defendant’s assault under G.S. 14-33 must have inflicted physical injury. However, given the uncontroverted evidence regarding the victim’s injuries, the error did not rise to the level of...
The trial court did not err by denying the defendant’s motion to dismiss a charge of attempted first-degree murder where the defendant shot the victim in the abdomen. The defendant removed the victim’s cell phone from her reach, left the room, returned with a .45 caliber pistol, and shot her in...
The trial court did not abuse its discretion by denying the defendant’s request to be provided, prior to voir dire, with the trial court’s intended jury instructions regarding the killing of an unborn fetus. The defendant wanted the instruction to “clarify the law” before questioning of the...
The trial court erred by dismissing a misdemeanor DWI charge under G.S. 15A-954. The trial court erroneously dismissed the charges under G.S. 15A-954(a)(1) (statute alleged to have been violated is unconstitutional on its face or as applied to the defendant) without making a finding that the DWI...
The trial court did not err by denying the defendant’s motion to dismiss a charge of attempted malicious castration of a privy member. The victim was the son of the woman with whom the defendant lived; a doctor found 33 injuries on the victim’s body, including a 2.5 inch laceration on his penis...
(1) A defendant may be convicted of assault by strangulation and assault with a deadly weapon inflicting serious injury where two incidents occurred. The fact that these assaults were part of a pattern of chronic child abuse does not mean that they are considered one assault. (2) The State...
Holding, in a case in which the trial court denied the defendant’s motion to terminate his sex offender registration, that the superior court did not have jurisdiction to enter its order. Under G.S. 14-208.12A(a), a petition to terminate must be filed in the district where the person was...
The trial court did not err by allowing a child victim to testify out of the defendant’s presence by way of a closed circuit television. Following State v. Jackson, 216 N.C. App. 238 (Oct. 4, 2011) (in a child sexual assault case, the defendant’s confrontation rights were not violated...
The defendant’s shooting of the victim’s mother (the defendant’s wife) while the victim was in utero was a proximate cause of the victim’s death after being born alive. The gunshot wound necessitated the child’s early delivery, the early delivery was a cause of a complicating condition, and that...
The trial court did not err by denying the defendant’s motion to dismiss a charge of assault by strangulation on the same victim. The defendant argued that because his obstruction of the victim’s airway was caused by the defendant’s hand over the victim’s nose and mouth, rather than “external...
The trial court erred by sentencing the defendant in the aggravated range without considering uncontradicted evidence of a mitigating factor. One judge declined to reach this issue.
A clerical error occurred where the trial court found that it could revoke the defendant’s probation under the Justice Reinvestment Act because the defendant was convicted of another criminal offense while on probation but checked the box on the form indicating that the revocation was based on...
Distinguishing State v. Hamby, 129 N.C. App. 366, (1998), the court held that the defendant could appeal the trial court’s calculation of her prior record level even though she had stipulated to her prior convictions on the sentencing worksheet.
The trial court did not err by denying the defendant’s motion to dismiss first-degree murder charges where the victim was in utero at the time of the incident but was born alive and lived for one month before dying.
During the habitual felon trial stage, the jury may consider evidence of a prior felony presented during the trial for the principal offense. Evidence of one prior conviction was presented during the trial for the principal offense; evidence of two prior convictions was introduced in the...
The evidence supported the trial court’s determination that the defendant was in PRL V. The trial court based its determination on NC and NY DCI records. The defendant argued that the NY DCI record was not sufficient because it was inconsistent with the NC DCI record. The court found any...
The trial court did not err by denying the defendant’s motion to dismiss a charge of assault with deadly weapon with intent to kill, over the defendant’s argument that there was insufficient evidence of an intent to kill. This charge was based on the defendant’s use of a bat to assault his wife...
The trial court did not violate the defendant’s constitutional right to a public trial under Waller v. Georgia by closing the courtroom during a sexual abuse victim’s testimony where the State advanced an overriding interest that was likely to be prejudiced; the closure of the courtroom...
(1) G.S. 14-208.18(a)(1)-(3) creates three separate and distinct criminal offenses. (2) Although the defendant did not have standing to assert that G.S. 14-208.18(a)(3) was facially invalid, he had standing to raise an as applied challenge. (3) G.S. 14-208.18(a)(3), which prohibits a sex...
Reversing the trial court, the court held that probable cause supported issuance of a search warrant to search the defendant’s residence. Although the affidavit was based an anonymous caller, law enforcement corroborated specific information provided by the caller so that the tip had a...
Five indecent liberties indictments were sufficient where they were couched in the language of the statute and specified different and non-overlapping time frames. The court rejected the defendant’s argument that the indictments were insufficient because they included “non-specific allegations...
In a case involving five counts of indecent liberties, no unanimity issue arose where the trial court framed the jury instructions in terms of the statutory requirements and referenced the indictments, each of which specified a different, non-overlapping time frame. The trial court’s...
Reversing the trial court, the court held that probable cause supported issuance of a search warrant to search the defendant’s residence. Although the affidavit was based on anonymous callers, law enforcement corroborated specific information provided by a caller so that the tip had a sufficient...
Citing Lafler v. Cooper, 566 U.S. 156 (2012) (defense counsel rendered ineffective assistance by advising a defendant to reject a plea offer), the court dismissed without prejudice the defendant’s claim that defense counsel rendered ineffective assistance by advising him to reject a...
In a felony larceny case, there was sufficient evidence that a stolen vehicle was worth more than $1,000. The value of a stolen item is measured by fair market value and a witness need not be an expert to give an opinion as to value. A witness who has knowledge of value gained from experience,...
A passenger has standing to challenge a stop of a vehicle in which the passenger was riding.
No reasonable suspicion supported a traffic stop. The State had argued reasonable suspicion based on the driver’s alleged crossing of the fog line, her and her passenger’s alleged nervousness and failure to make eye contact with officers as they drove by and alongside the patrol car, and the...
G.S. 20-141.4(c) does not bar simultaneous prosecutions for involuntary manslaughter and death by vehicle; it only bars punishment for both offenses when they arise out of the same death.
(1) An officer had reasonable suspicion to stop the defendant’s vehicle for speeding. The court rejected the defendant’s argument that because the officer only observed the vehicle for three to five seconds, the officer did not have a reasonable opportunity to judge the vehicle’s speed. The...
The rule of State v. Walker, 269 N.C. 135 (1967) (State may not introduce evidence of a written confession unless that written statement bears certain indicia of voluntariness and accuracy) does not apply where an officer testified to the defendant’s oral statements.
Where a defendant failed to make a motion to dismiss on the basis of fatal variance at trial, the issue was waived for purposes of appeal.
Where a defendant failed to make a motion to dismiss on the basis of fatal variance at trial, the issue was waived for purposes of appeal.
G.S. 20-141.4(c) does not bar simultaneous prosecutions for involuntary manslaughter and death by vehicle; it only bars punishment for both offenses when they arise out of the same death.
Counsel rendered ineffective assistance by failing to file what would have been a meritorious motion to suppress.
(1) Forgery and larceny of a chose in action are not mutually exclusive offenses. The defendant argued that both forgery and uttering a forged check require a counterfeit instrument while larceny of a chose in action requires a “valid instrument.” The court concluded that larceny of a chose in...
Habitual misdemeanor assault cannot serve as a prior felony for purposes of habitual felon.
In a sexual assault case, the trial court did not err by using the word “victim” in the jury instructions. Use of this word did not constitute an opinion by the trial court regarding guilt and caused no prejudice.
The trial court erred by ordering the defendant to enroll in lifetime satellite-based monitoring based on its determination that second-degree sexual offense was an aggravating offense. Considering the elements of the offense, second-degree sexual offense is not an aggravated offense.
The discovery of marijuana on a passenger provided probable cause to search a vehicle. After stopping the defendant and determining that the defendant had a revoked license, the officer told the defendant that the officer’s K-9 dog would walk around the vehicle. At that point, the defendant...
The trial court did not err by denying the defendant’s request for an entrapment instruction where no credible evidence suggested that he would not have committed the crime except for law enforcement’s persuasion, trickery or fraud or that the crime was the creative production of law enforcement...
In a drug case, the trial court did not commit plain error by concluding that an officer had reasonable suspicion to conduct a warrantless stop. The officer received information from two informants who had previously provided him with reliable information leading to several arrests; the...
The trial court erred by denying credit for the time the defendant was incarcerated pending a revocation hearing on his first violation of post-release supervision. Under G.S. 15-196.1, the trial court was required to credit the defendant with eight days he spent in custody awaiting a revocation...
In an arson case, there was sufficient evidence of malice where, among other things, the defendant was enraged at the property owner.
Seizure of cocaine was justified under the “plain feel” doctrine. While searching the defendant the officer “felt a large bulge” in his pocket and immediately knew based on its packing that it was narcotics.
Where a burglary victim identified the defendant as the perpetrator in court, the rule of State v. Irick, 291 N.C. 480 (1977) (fingerprint evidence can withstand a motion for nonsuit only if there is substantial evidence that the fingerprints were impressed at the time of the crime),did...
In a case in which the defendant was convicted of perpetrating a hoax on law enforcement officers by use of a false bomb, the trial court did not err by admitting evidence of the defendant’s prior acts against his estranged wife. The defendant’s wife had a domestic violence protective order...
The trial court erred by instructing on flight. The defendant fled from an officer responding to a 911 call regarding violation of a domestic violence protective order. After being arrested the defendant’s vehicle was searched and he was charged with perpetrating a hoax on law enforcement...
There was sufficient evidence in a case where the defendant was convicted of perpetrating a hoax on law enforcement officers by use of a false bomb or other device in violation of G.S. 14-69.2(a). Specifically, there was sufficient evidence that the defendant concealed, placed or displayed the...
In a drug case, an officer properly was allowed to identify the substance at issue as marijuana based on his “visual and olfactory assessment”; a chemical analysis of the marijuana was not required.
Given the manner of its use, there was sufficient evidence that a kitchen table chair was a deadly weapon.
The trial court did not err by denying the defendant’s motion to continue trial so that he could locate two alibi witnesses. Both alibi witnesses were served months prior and the trial had already been continued for this purpose.
The trial court erred by requiring lifetime sex offender registration based on second-degree sexual offense convictions. Although the convictions qualify as reportable offenses requiring registration for 30 years, they do not constitute an aggravated offense requiring lifetime registration.
Forgery and larceny of a chose in action are not mutually exclusive offenses. The defendant argued that both forgery and uttering a forged check require a counterfeit instrument while larceny of a chose in action requires a “valid instrument.” The court concluded that larceny of a chose in...
In an assault with a deadly weapon on a law enforcement officer case, the trial court did not err by allowing the officer to give lay opinion regarding the weight of a kitchen chair (the alleged deadly weapon) that the defendant threw at him. The officer’s observation of the chair and of the...
In a felon in possession case, there was sufficient evidence that the defendant had constructive possession of the firearm. The defendant was driving a rental vehicle and had a female passenger. The gun was in a purse in the car’s glove container. The defendant was driving the car and his...
In an assault with a deadly weapon with intent to kill inflicting serious injury case where the weapon was not a deadly weapon per se, the trial court did not err by declining to give self-defense instruction N.C.P.I.—Crim. 308.40 and did not commit plain error by declining to give self-defense...
No fatal variance occurred in an identity theft case. The defendant argued that there was a fatal variance between the indictment, which alleged that he possessed credit card numbers belonging to four natural persons and the evidence, which showed that three of the credit cards were actually...
In a felony larceny case, there was sufficient evidence that the goods were valued at more than $1,000 where the victim testified that $500 in cash and a laptop computer valued at least at $600 were taken.
In an assault with a deadly weapon inflicting serious injury case, the defendant is not entitled to a simple assault instruction where the deadly weapon element is left to the jury but there is uncontroverted evidence of serious injury.
In an identity theft case where the defendant was alleged to have used credit card numbers belonging to several victims, the trial court did not abuse its discretion under Rule 403 by admitting evidence that the defendant also was in possession of debit and EBT cards belonging other persons to...
The trial court committed plain error by instructing the jury that it could find the defendant guilty of conspiracy if the defendant conspired to commit felony breaking and entering or felony larceny where the indictment alleged only a conspiracy to commit felony breaking or entering.
In a second-degree rape case, the trial court properly admitted 404(b) evidence of the defendant’s prior sexual conduct with the victim to show common scheme. The conduct leading to the charges occurred in 1985 when the victim was sixteen years old. After ingesting alcohol and other substances,...
A clerical error occurred in a Fair Sentencing Act case when the trial court found an aggravating factor and went on to sentence the defendant above the presumptive range but failed to check the box on the judgment indicating that the aggravating factor existed. The court remanded for correction...
(1) G.S. 14-415.12 (criteria to qualify for a concealed handgun permit) was not unconstitutional as applied to the petitioner. Relying on case law from the federal circuit courts, the court adopted a two-part analysis to address Second Amendment challenges. First, the court asks whether the...
Improper testimony by an expert pediatrician in a child sexual abuse case required a new trial. After the alleged abuse, the child was seen by Dr. Gutman, a pediatrician, who reviewed her history and performed a physical exam. Gutman observed a deep notch in the child’s hymen, which was highly...
(1) After being read his Miranda rights, the defendant knowingly and intelligently waived his right to counsel. The court rejected the defendant’s argument that the fact that he never signed the waiver of rights form established that that no waiver occurred. The court also rejected the...
The defendant’s confession was voluntary. The court rejected the defendant’s argument that he “was cajoled and harassed by the officers into making statements that were not voluntary,” that the detectives “put words in his mouth on occasion,” and “bamboozled [him] into speaking against his...
In a trafficking case, there was no fatal variance between the indictment, alleging that the defendant trafficked in opium, and the evidence at trial, showing that the substance was an opium derivative. G.S. 90-95(h)(4) “does not create a separate crime of possession or transportation of an...
(1) In a delivery of marijuana case, the evidence was sufficient to survive a motion to dismiss where it established that the defendant transferred less than five grams of marijuana for remuneration. The State need not show that the defendant personally received the compensation. (2) Where the...
In an identity theft case, the evidence was sufficient to establish that the defendant "used" or "possessed" another person’s social security number to avoid legal consequences. After being detained and questioned for shoplifting, the defendant falsely gave the officer his name as Roy Lamar Ward...
The trial court erred by denying the defendant’s motion to suppress intoxilyzer results. After arrest, the defendant was informed of his rights under G.S. 20-16.2(a) and elected to have a witness present. The defendant contacted his witness by phone and asked her to witness the intoxilyzer test...
After waiving his right to counsel the defendant did not unambiguously ask to speak a lawyer. The court rejected the defendant’s argument that he made a clear request for counsel. It concluded: “Defendant never expressed a clear desire to speak with an attorney. Rather, he appears to have been...
There was sufficient evidence to establish the offense of conversion of property by a bailee in violation of G.S. 14-168.1. The court rejected the defendant’s argument that because “[e]vidence of nonfulfillment of a contract obligation” is not enough to establish intent for obtaining property by...
In a trafficking in opium case, the State’s forensic expert properly testified that the substance at issue was an opium derivative where the expert relied on a chemical analysis, not a visual identification.
The trial court did not err by requiring the defendant to pay $5,000 in restitution where trial evidence supported the restitution award and the trial court properly considered the defendant’s resources.
(1) In this child sexual abuse case, the trial court did not err by allowing an emergency room doctor who examined one of the children to testify to the child’s credibility where the defendant elicited this evidence during his own cross-examination. (2) The trial court did not err by allowing...
(1) Admission of a forensic report identifying a substance as a controlled substance without testimony of the preparer violated the defendant’s confrontation clause rights. (2) The trial court erred by allowing a substitute analyst to testify that a substance was a controlled substance based on...
(1) The trial court erred by failing to exercise discretion when ordering the defendant to pay court costs. Ordering payment of costs, the court stated: “I have no discretion but to charge court costs and I'll impose that as a civil judgment.” Amended G.S. 7A-304(a) does not mandate imposition...
The trial court made sufficient findings to support its decision to place the defendant on probation for sixty months.
Although the trial court erred by allowing the State’s expert to testify that the child victim had been sexually abused, the error did not rise to the level of plain error. Responding to a question about the child’s treatment, the expert, a licensed clinical social worker, said: "For a child,...
In this child sexual abuse case, the defendant’s confession was not involuntary. After briefly speaking to the defendant at his home about the complaint, an officer asked the defendant to come to the police station to answer questions. The court rejected the defendant’s argument that his...
For reasons discussed in the opinion, the court affirmed the trial judge’s order finding defense counsel in contempt of court for willfully disobeying a court order regarding permissible inquiry under the Rape Shield statute.
In a discharging a firearm into occupied property case, a residence was occupied when the family was on the front porch when the weapon was discharged.
In a case involving a charge of possessing a controlled substance on the premises of a local confinement facility, the defendant’s own testimony that he had a “piece of dope . . . in the jail” was sufficient evidence that he possessed a controlled substance on the premises.
In this child sexual abuse case, the trial court did not impermissibly allow the State to use extrinsic evidence to impeach the defendant on a collateral matter. On cross-examination, the defendant denied that she had told anyone that the victim began masturbating at an early age, given the...
In a felony larceny after a breaking or entering case, the trial court did not abuse its discretion by determining that a text message sent from the defendant’s phone was properly authenticated where substantial circumstantial evidence tended to show that the defendant sent the text message. The...
The trial court erred by denying the defendant’s motion to suppress property seized in a warrantless search. After receiving a tip that a person living at a specified address was growing marijuana, officers went to the address and knocked on the front and side doors. After getting no answer, two...
In the context of an appeal from a contempt proceeding, the court held that by asking the victim at trial about a possible prior instance of rape between the victim and a cousin without first addressing the relevance and admissibility of the question during an in camera hearing, defense counsel...
In this child sexual abuse case, the trial court did not err by allowing the State to ask a DSS social worker about a 2009 DSS petition alleging that the victim was neglected, sexually abused and dependent where the defendant opened the door to this testimony. Before the witness testified, the...
Sufficient evidence supported the trial court’s determination of the defendant’s prior record level. Counsel’s oral stipulation and the prior record level worksheet established the existence of an out-of-state felony conviction, even though neither the defendant nor defense counsel signed the...
In a speeding to elude case, the court rejected the defendant’s argument that she did not intend to elude an officer because she preferred to be arrested by a female officer rather than the male officer who stopped her. The defendant’s preference in this regard was irrelevant to whether she...
Although the indictment failed to specify G.S. 14-208.9(a) (sex offender registration violation) as the statute violated, this omission alone did not create a fatal defect.
The prosecutor did not impermissibly vouch for the credibility of a State’s witness by asking whether any promises were made to the witness in exchange for his testimony.
There was sufficient evidence that the defendant perpetrated the murder. The defendant’s cell phone was found next to the victim, cell phone records showed that the phone was within one mile of the murder scene around the time of the murder, the defendant gave inconsistent statements about his...
An indictment charging failing to notify the sheriff’s office of change of address by a registered sex offender under G.S. 14-208.9 was defective where it failed to allege that the defendant was a person required to register.
Even if the trial court erred in its jury instruction with regard to the required state of mind, no plain error occurred in light of the overwhelming evidence of guilt.
Based on the circumstances of this felon in possession case, the trial court’s failure to further inquire into and answer the jury’s questions regarding constructive possession of the gun constituted plain error. The circumstances included the fact that the jury was instructed on actual...
(1) In a felon in possession case, evidence that the defendant was “playing with” the guns in question “likely” constituted sufficient evidence to support an instruction on actual possession of the guns. (2) The trial court erred by instructing the jury on constructive possession of the guns....
(1) The trial court did not abuse its discretion by revoking the defendant’s probation. The defendant asserted that the revocation was improper because he never received a written statement containing the conditions of his probation, as required by G.S. 15A-1343(c). The court noted that the...
The State presented sufficient evidence of involuntary manslaughter. The State proved that an unlawful killing occurred with evidence that the defendant committed the misdemeanor of improper storage of a firearm. Additionally, the State presented sufficient evidence that the improper storage was...
(1) The trial court erred by entering a pretrial order dismissing, under G.S. 15A-954(a)(4), murder, child abuse, and sexual assault charges against the defendant. The statute allows a trial court to dismiss charges if it finds that the defendant's constitutional rights have been flagrantly...
(1) The trial court erred by entering a pretrial order dismissing, under G.S. 15A-954(a)(4), murder, child abuse, and sexual assault charges against the defendant. The statute allows a trial court to dismiss charges if it finds that the defendant's constitutional rights have been flagrantly...
The court remanded for correction of a clerical error where the trial court announced a fine of $100 but the judgment incorrectly reflected a $500 fine.
The evidence was sufficient on a charge of improper storage of a firearm under G.S. 14-315.1. The defendant argued that the evidence failed to show that he stored or left the handgun in a condition and manner accessible to the victim. The court found sufficient circumstantial evidence on this...
In an armed robbery case, the trial court did not commit plain error by failing instruct the jury on a lesser-included offense of “aggravated common law robbery.” The court rejected the defendant’s argument that Apprendi and Blakely created a North Carolina crime of aggravated...
In a child sexual assault case in which the victim was the defendant’s son, the trial court erred by allowing the State to cross-examine the defendant with questions summarizing the results of a psychological evaluation, not admitted into evidence, that described the defendant as a psychopathic...
In a case in which the defendant was convicted of first-degree murder, the trial court did not err by failing to instruct the jury on second-degree murder. The court found that the record supported the inference that the defendant murdered the victim after premeditation and deliberation. The...
(1) The trial court erred in connection with its ruling on a suppression motion in an impaired driving case. The trial court failed to look beyond whether the defendant’s driving was normal in assessing whether the officer had reasonable suspicion to stop the defendant’s vehicle. (2) The officer...
In a child sexual assault case in which the victim was the defendant’s son, the trial court erred by allowing the State to cross-examine the defendant with questions summarizing the results of a psychological evaluation, not admitted into evidence, that described the defendant as a psychopathic...
In a child sexual assault case in which the defendant was charged with assaulting his son, the trial court erred by admitting under Rule 404(b) evidence of the defendant's writings in a composition book about forcible, non-consensual anal sex with an adult female acquaintance. The defendant...
In a murder case, the trial court did not err by excluding evidence suggesting that the victim’s wife committed the crime. Distinguishing cases where alternate perpetrators were positively identified and both direct and circumstantial evidence demonstrated the third parties’ opportunity and...
The trial court did not err by denying a motion to dismiss asserting that the defendant was deprived of his constitutional rights due to his involuntary absence at trial. The defendant was missing from the courtroom on the second day of trial and reappeared on the third day. To explain his...
Assault on a female is not a lesser-included of first-degree sexual offense.
In a murder case, the trial court did not abuse its discretion by allowing the State to impeach two witnesses with their prior inconsistent statements to the police. Both witnesses testified that they were at the scene but did not see the defendant. The State then impeached them with their prior...
(1) On remand from the N.C. Supreme Court for consideration of an issue not addressed in the original decision, the court held that the trial court did not err by granting the defendant’s motion to suppress cocaine found following the defendant’s arrest. The State argued that suppression was...
Assault on a female is not a lesser-included of first-degree sexual offense.
In a murder case in which the defendant relied on an alibi defense, the trial court did not err by allowing the State to amend the date of the offense stated in the indictment from December 28, 2009, to December 27, 2009. The court noted that because the defendant’s alibi witness’s testimony...
The trial court did not err by denying the defendant’s motion to compel disclosure of the identity of a confidential informant who provided the defendant’s cell phone number to the police. Applying Roviaro v. United States, 353 U.S. 53 (1957), the court noted that the defendant failed...
The trial court did not err by denying the defendant’s motion for post-conviction DNA testing where the defendant did not meet his burden of showing materiality under G.S. 15A-269(a)(1). The defendant made only a conclusory statement that "[t]he ability to conduct the requested DNA testing is...
In an assault with a deadly weapon inflicting serious injury case, the trial court did not err by instructing the jury that three gunshot wounds to the leg constituted serious injury. The victim was shot three times, was hospitalized for two days, had surgery to remove a bone fragment from his...
By failing to assert fatal variance as a basis for his motion to dismiss, the defendant failed to preserve the issue for appellate review. Even if the issue had been preserved, it had no merit. Defendant argued that there was a fatal variance between the name of the victim in the indictment, You...
On what it described as an issue of first impression in North Carolina, the court held that a drug dog’s positive alert at the front side driver’s door of a motor vehicle does not give rise to probable cause to conduct a warrantless search of the person of a recent passenger of the vehicle who...
The defendant’s conviction for kidnapping was improper where the restraint involved was inherent in two sexual assaults and an assault by strangulation for which the defendant was also convicted.
(1) Although a trial court may summarily deny or dismiss a suppression motion for failure to attach a supporting affidavit, it has the discretion to refrain from doing so. (2) In granting the defendant’s motion to suppress, the trial judge erred by failing to make findings of fact resolving...
In granting the defendant’s motion to suppress, the trial judge erred by failing to make findings of fact resolving material conflicts in the evidence. The court rejected the defendant’s argument that the trial court “indirectly provided a rationale from the bench” by stating that the motion was...
A taking occurred when the defendant grabbed the victim’s cell phone from his pocket and threw it away. The fact that the taking was for a relatively short period of time is insignificant.
The rules of evidence apply to proceedings related to post-conviction motions for DNA testing under G.S. 15A-269.
The trial court was not required to make written finding of fact supporting its denial of a suppression motion where the trial court provided its rationale from the bench and there were not material conflicts in the evidence.
Although the trial court erred by sending exhibits to the jury deliberation room over objection of defense counsel, the error was not prejudicial. The deliberating jury asked to review a number of exhibits. After consulting with counsel outside of the presence of the jury the trial court...
The trial court erred by granting the defendant’s motion to suppress on grounds that officers impermissibly prolonged a lawful vehicle stop. Officers McKaughan and Jones stopped the defendant’s vehicle after it twice weaved out of its lane. The officers had a drug dog with them. McKaughan...
The trial court did not abuse its discretion by refusing to allow a defense witness to testify as an expert. The defense proffered a forensic scientist and criminal profiler for qualification as an expert. Because the witness’s testimony was offered to discredit the victim’s account of the...
The trial court did not impermissibly coerce a verdict. While deliberating, the jury asked to hear certain trial testimony again. The trial judge initially denied the request. After the jury indicated that it could not reach a verdict, the trial judge asked if it would be helpful to have the...
The rules of evidence apply to proceedings related to post-conviction motions for DNA testing under G.S. 15A-269.
The defendant’s confrontation rights were not violated when an officer testified to the victim’s statements made to him at the scene through the use of a telephonic translation service. The defendant argued that his confrontation rights were violated when the interpreter’s statements were...
(1) The evidence was sufficient to support a conviction for resisting, delaying and obstructing an officer during a 10-15 second incident. Officers observed members of the Latin Kings gang yelling gang slogans and signaling gang signs to a group of rival gang members. To prevent conflict, the...
Citing Berkemer v. McCarty, 468 U.S. 420, 442 (1984), the court held that the defendant was not in custody for purposes of Miranda during a traffic stop.
(1) By failing to assert fatal variance as a basis for his motion to dismiss, the defendant failed to preserve the issue for appellate review.
The trial court did not err by allowing the two officers to identify the green vegetable matter as marijuana based on their observation, training, and experience.
The trial court erred by ordering the defendant to pay restitution when the State failed to present any evidence to support the restitution order. The State conceded the error.
The trial court did not err by denying the defendant’s motion to disclose the identity of a confidential informant in a drug case where—for reasons discussed in the court’s opinion—the defendant failed to show that the circumstances of his case required disclosure.
The trial court did not err by finding that the defendant consented to a search of his residence. The court rejected the defendant’s argument that the trial court must make specific findings regarding the voluntariness of consent even when there is no conflict in the evidence on the issue. Here...
The defendant could not be convicted of second-degree sexual offense (mentally disabled victim) and crime against nature (where lack of consent was based on the fact that the victim was mentally disabled, incapacitated or physically helpless) based on the same conduct (fellatio). The court found...
Based on the trial court’s colloquy with the defendant, the court rejected the defendant’s challenge to the knowing and voluntary nature of his plea. The defendant had argued that the trial court did not adequately explain that judgment may be entered on his plea to assault on a handicapped...
Although counsel provided deficient performance in this sexual assault case, the defendant was not prejudiced by this conduct and thus the defendant’s claim of ineffective assistance of counsel must fail. The defendant argued that counsel was ineffective when he asked the defendant on direct...
The trial court violated the defendant’s right to a public trial by temporarily closing the courtroom while the victim testified concerning an alleged rape perpetrated by defendant without engaging in the four-part test set forth in Waller v. Georgia, 467 U.S. 39 (1984). The court held...
The defendant could not be convicted of second-degree sexual offense (mentally disabled victim) and crime against nature (where lack of consent was based on the fact that the victim was mentally disabled, incapacitated or physically helpless) based on the same conduct (fellatio). The court found...
In this carrying a concealed gun case, the court addressed the issue of whether the provisions in G.S. 14-269(a1) were elements or defenses. Following State v. Trimble, 44 N.C. App. 659 (1980) (dealing with the statute on poisonous foodstuffs in public places), it explained:
...There was a sufficient factual basis to support a plea to assault on a handicapped person where the prosecutor’s summary of the facts indicated that the victim was 80 years old, crippled in her knees with arthritis, and required a crutch to walk; the defendant told the victim that he would kill...
When charging carrying a concealed gun under G.S. 14-269, the exception in G.S. 14-269(a1)(2) (having a permit) is a defense not an essential element and need not be alleged in the indictment.
The defendant’s waiver of Miranda rights was knowing, voluntary, and intelligent. Among other things, the defendant was familiar with the criminal justice system, no threats or promises were made to him before he agreed to talk, and the defendant was not deprived of any necessaries....
The trial court erred by finding that the defendant willfully violated probation by failing to have an approved residence plan. The defendant was placed on supervised probation to begin when he was released from incarceration on separate charges. On the day that the defendant was scheduled to be...
(1) The defendant’s confrontation rights were not violated when the State’s expert testified about DNA testing on the victim’s rape kit done by a non-testifying trainee. The trainee worked under the testifying expert’s direct observation and supervision and the findings were his own. (2) The...
There was no fatal defect in an indictment for felony assault on a handicapped person. The indictment alleged, in part, that the defendant unlawfully, willfully, and feloniously assaulted and struck “a handicapped person by throwing Carol Bradley Collins across a room and onto the floor and by...
The trial court erred by revoking the defendant’s probation on grounds that he willfully violated the condition that he reside at a residence approved by the supervising officer. The defendant was violated on the day he was released from prison, before he even “touched outside.” Prior to his...
The trial court erred by determining that the defendant was a prior record level VI when the defendant’s Florida conviction for burglary was not sufficiently similar to the corresponding N.C. burglary offense. The Florida statute is broader than the N.C. statute in that it encompasses more than...
(1) The defendant’s confinement of the victims was not inherent in related charges of armed robbery and sexual offense and thus could support the kidnapping charges. The defendant robbed the victims of a camera and forced them to perform sexual acts. He then continued to hold them at gunpoint...
There was no fatal defect in an indictment for felony assault on a handicapped person. The indictment alleged, in part, that the defendant unlawfully, willfully, and feloniously assaulted and struck “a handicapped person by throwing Carol Bradley Collins across a room and onto the floor and by...
In this sexual assault trial, the prosecutor’s comment during closing argument was not a comment on the defendant’s failure to testify. The prosecutor stated: “There are only two people in this courtroom as we sit here today that actually know what happened between the two people, and that’s [...
When a defendant discharges counsel and proceeds pro se, he or she may not assert a claim of ineffective assistance of counsel with regard to his or her own representation.
In a sexual assault case involving the defendant’s stepdaughter, the trial court did not err by quashing a subpoena that would have required a district court judge to testify regarding statements made by the victim’s mother to the judge in a DVPO proceeding. At trial the defense questioned the...
The court rejected the defendant’s argument that denying him a probable cause hearing violated his constitutional rights by depriving him of discovery and impeachment evidence. Relying on State v. Hudson, 295 N.C. 427 (1978) (the defendant failed to show that he was prejudiced by a lack...
The prosecutor’s summary of facts and the defendant’s stipulations were sufficient to establish a factual basis for the plea.
The trial court did not err by refusing to instruct the jury on jury nullification.
There was sufficient evidence to support a conviction of maintaining a dwelling. The defendant argued that there was insufficient evidence that he knew about the drugs found in the home. However, the court held that its conclusion that he constructively possessed the drugs resolved that issue in...
In this drug trafficking case the court held that there was sufficient evidence to support a finding of constructive possession of cocaine. Police had previously received a tip that drug sales were occurring at the home where the drugs were found; police later received similar information in...
The defendant was seized when officers parked directly behind his stopped vehicle, drew their firearms, and ordered the defendant and his passenger to exit the vehicle. After the defendant got out of his vehicle, an officer put the defendant on the ground and handcuffed him.
In a drug trafficking and maintaining a dwelling case, evidence that a handgun and ammunition were found in the defendant’s home was relevant to both charges.
No reasonable and articulable suspicion supported seizure of the defendant made as a result of an anonymous tip. When evaluating an anonymous tip in this context, the court must determine whether the tip taken as a whole possessed sufficient indicia of reliability. If not, the court must assess...
In a case in which the defendant was convicted of trafficking in more than 400 grams of cocaine, the trial court did not err by allowing the State’s expert to testify that the substance was cocaine where the expert combined three separate bags into one bag before testing the substance. After...
The trial court did not abuse its discretion by finding that one aggravating factor outweighed six mitigating factors.
Because the social worker-patient privilege belongs to the patient alone, a social worker did not have standing to appeal an order compelling her comply with a subpoena where the patient never asserted the privilege. In this civil action the court found that the record and the patient’s failure...
(1) The trial court properly conducted a de novo review on resentencing, even though the defendant was sentenced to the same term that he received at the original sentencing hearing. (2) At a resentencing during which new evidence was presented, the trial court did not err by failing to find a...
The trial court did not err by permitting detectives to offer lay opinions that a substance found on a lawn chair used to beat the victim was blood. One detective testified that there was blood in the driveway and that a lawn chair close by had blood on it. He based this conclusion on his 7...
The juvenile defendant was not in custody for purposes of Miranda. After the defendant had been identified as a possible suspect in several breaking or entering cases, two detectives dressed in plain clothes and driving an unmarked vehicle went to the defendant’s home and asked to speak...
There was sufficient evidence to support a restitution order for $730. The victim testified that before being robbed he had “two sets of keys, snuff, a pocket knife, a bandana, [his] money clip,” and approximately $680 in cash. He later confirmed that $730 represented the money and the items...
For purposes of determining whether there was sufficient evidence that a burglary occurred at nighttime, the court took judicial notice of the time of civil twilight and the driving distance between the victim’s residence and an apartment where the defendant appeared at 6 am after having been...
In a case involving a drug-related murder that occurred in 2007, the trial court committed reversible error by admitting evidence that the defendant was involved in a 1994 homicide in which he broke into an apartment, found his girlfriend in bed with the victim, and shot the victim. The facts of...
Although the defendant met his burden of production with respect to diminished capacity in this murder and assault case in which the defendant stuck various persons with a vehicle, the State introduced sufficient evidence of specific intent to kill. The State did not present expert witnesses....
No statutory authority supported the trial court’s orders extending the defendant’s probation beyond the original 60-month period and they were thus void. The orders extending probation were not made within the last 6 months of probation and the defendant did not consent to the extension. The...
Over a dissent, the court held that the trial court did not err by denying the defendant’s motion to suppress evidence found as a result of a strip search. The court found that the officer had, based on the facts presented, ample basis for believing that the defendant had contraband beneath his...
(1) The State conceded and the court held that an indictment for trafficking in opium by sale was fatally defective because it failed to name the person to whom the defendant allegedly sold or delivered the controlled substance. The indictment stated that the sale was "to a confidential...
There was sufficient evidence that a lawn chair was a dangerous weapon for purposes of armed robbery. The victim was knocked unconscious and suffered multiple facial fractures and injuries which required surgery; after surgery his jaw was wired shut for weeks and he missed 2-3 weeks of work; and...
The district court erred by failing to make findings of fact or conclusions of law in connection with its ruling on the juvenile’s motion to suppress in violation of G.S. 15A-977, where the trial court failed to provide its rationale for denying the motion.
The court rejected the defendant’s argument that an officer’s discovery of drugs in his buttocks occurred during a separate, second search after a pat down was completed. The drugs were found during a valid pat down for weapons.
An officer had probable cause to arrest the defendant after he felt something hard between the defendant’s buttocks during a weapons pat down. Based on his training and experience the officer inferred that the defendant may have been hiding drugs in his buttocks. The court noted that the...
(1) There was sufficient evidence that a burglary occurred at nighttime. The defendant left his girlfriend’s apartment after 10 pm and did not return until 6 am the next day. The burglary occurred during that time period. After taking judicial notice of the time of civil twilight (5:47 am) and...
There was sufficient evidence that a lawn chair was a deadly weapon for purposes of assault. The victim was knocked unconscious and suffered multiple facial fractures and injuries which required surgery; after surgery his jaw was wired shut for weeks and he missed 2-3 weeks of work; and at trial...
In a burglary case, the trial court did not err by failing to reiterate an instruction on the doctrine of recent possession when instructing the jury on the lesser-included offense of felonious breaking or entering. The trial court properly instructed the jury on felonious breaking and entering...
Following State v. Harris, 219 N.C. App. 590 (Apr. 3, 2012) (an indictment charging the defendant with being a sex offender unlawfully on the premises of a place intended primarily for the use, care, or supervision of minors in violation of G.S. 14-208.18 was defective because it failed...
In a felony possession of cocaine case, the defendant waived the issue of fatal variance by failing to raise it at trial.
The trial judge erred by entering a domestic violence protective order. The defendant’s act of hiring a private investigator service to conduct surveillance to determine if the plaintiff was cohabiting does not constitute harassment. There thus was no act of domestic violence.
Where the defendant admitted that he was serving a prison sentence when the crime was committed, no Blakely violation occurred when the trial judge assigned a prior record level point on this basis without submitting the issue to the jury.
The court rejected the State’s argument that the defendant opened the door to admission of otherwise inadmissible hearsay evidence (a 911 call). Reversed and remanded for a new trial.
In a murder and assault case involving a home invasion and two victims, the trial court did not err by admitting testimony from the surviving victim that touched on the deceased victim’s state of mind when he initially opened the door to the intruder. The surviving victim “merely gave his...
A search of the defendant’s jacket incident to arrest was lawful. When the officer grabbed the defendant, the defendant ran. While attempting to evade capture, the defendant tried to punch the officer while keeping his right hand inside his jacket. The defendant refused to remove his hand from...
The trial court did not err by entering a civil no contact order against the defendant pursuant to G.S. 15A-1340.50 (permanent no contact order prohibiting future contact by convicted sex offender with crime victim). The court held, among other things, that because the order was civil in nature...
The trial court did not err by entering a civil no contact order against the defendant pursuant to G.S. 15A-1340.50 (permanent no contact order prohibiting future contact by convicted sex offender with crime victim). The court held that because the statute imposes a civil remedy, it does not...
The trial court did not abuse its discretion by denying the defendant’s motion for a mistrial made after three law enforcement officers, who were witnesses for the State, walked through the jury assembly room on their way to court while two members of the jury were in the room. The trial court...
The trial court lacked jurisdiction over a habitual felon charge where the habitual felon indictment was returned before the principal felonies occurred.
In a felony possession of cocaine case, the defendant waived the issue of fatal variance by failing to raise it at trial. The court however went on summarily reject the defendant’s argument on them merits. The defendant had argued that there was a fatal variance between the indictment, which...
(1) The DOC gave sufficient notice of a SBM hearing when its letter informed the defendant of both the hearing date and applicable statutory category. (2) The court rejected the defendant’s argument that SBM infringed on his constitutional right to travel.
A SBI forensic report identifying a substance as cocaine was properly admitted when the State gave notice under the G.S. 90-95(g) notice and demand statute and the defendant lodged no objection to admission of the report without the testimony of the preparer.
Because there was no evidence of threat of force or special relationship there was insufficient evidence of constructive force to support second-degree sexual offense charges. The State had argued that constructive force was shown by (a) the fact that the juvenile threatened the minor victims...
In a second-degree murder case stemming from a vehicle accident, there was sufficient evidence of malice. The defendant knowingly drove without a license, having been cited twice for that offense in the three weeks prior to the accident. When the original driver wanted to pull over for the...
In an armed robbery case, the trial court did not err by failing to instruct the jury on common law robbery and by denying the defendant’s motion to dismiss armed robbery charges. Because there was no evidence that the gun was inoperable or unloaded, there was no evidence to rebut the...
No plain error occurred in a second-degree murder case stemming from a vehicle accident after a police chase when officers testified that the defendant committed the offense of felony speeding to elude arrest and other crimes. The officer’s testimony was a shorthand statement of facts necessary...
The trial court’s jury instruction regarding the duty to reach a verdict did not coerce a guilty verdict. The relevant pattern instruction (N.C.P.I.--Crim. 101.35), based on G.S. 15A-1235(a), reads: "All twelve of you must agree to your verdict. You cannot reach a verdict by majority vote. When...
In a second-degree murder case stemming from a vehicle accident during a high speed chase following a shoplifting incident, details of the shoplifting incident were properly admitted under Rule 404(b). Evidence is admissible under Rule 404(b) when it is part of the chain of circumstances leading...
The court held that questions of relevance are reviewed de novo but with deference to the trial court’s ruling.
Following Houseright and holding that the court reviews “questions of relevance de novo although we give great deference to the trial court's relevancy determinations.”
The trial court committed reversible error by denying the defendant’s request for a trial transcript for use in his retrial. After a mistrial, the trial court set a retrial for the following day. The defendant objected, arguing that he needed a trial transcript before the retrial. The trial...
In a child sex case involving a female victim, the trial court did not err by admitting 404(b) evidence in the form of testimony from another female child (E.S.) who recounted the defendant’s sexual activity with her. The evidence was relevant to show plan and intent. Because the defendant’s...
(1) The trial court did not err by admitting evidence that the defendant received two citations for driving without a license, including one only three days before the crash at issue. The fact that the defendant drove after having been repeatedly informed that driving without a license was...
Roadside strip searches of the defendant were reasonable and did not violate the constitution. The court first rejected the State’s argument that the searches were not strip searches. During both searches the defendant’s private areas were observed by an officer and during one search the...
(1) In a store robbery case, the court found no plain error in the trial court's determination that a photo lineup was not impermissibly suggestive. The defendant argued that the photo lineup was impermissibly suggestive because one of the officers administering the procedure was involved in the...
The search of a vehicle driven by the defendant was valid under Gant as incident to the arrest of the defendant’s passenger for possession of drug paraphernalia. Officers had a reasonable belief that evidence relevant to the passenger’s possession of drug paraphernalia might be found in...
In a case in which the defendant was convicted of first-degree murder, the trial court did not err by failing to instruct the jury on second-degree murder. The defendant conceded that the evidence warranted an instruction on first-degree murder. However, he argued that because the evidence...
In a murder case, the trial court did not err by excluding defense evidence of the victims’ military disciplinary infractions. Both the defendant and the victim were in the military. After several military infractions, the victim was referred to the defendant for counseling. The victim later...
Officers had reasonable suspicion to stop the defendant’s vehicle. Officers had received an anonymous tip that a vehicle containing “a large amount of pills and drugs” would be traveling from Georgia through Macon County and possibly Graham County; the vehicle was described as a small or mid-...
(1) Amendments to the sex offender registration scheme’s period of registration and automatic termination provision made after the defendant was required to register applied to the defendant. When the defendant was required to register in 2001, he was subject to a ten-year registration...
In the defendant’s trial for breaking and entering into his ex-wife’s Raleigh residence and for burning her personal property, the trial court did not abuse its discretion by admitting 404(b) evidence of an argument the defendant had with the victim and of a prior break-in at the victim’s...
In the defendant’s trial for breaking and entering into his ex-wife’s Raleigh residence and for burning her personal property, the trial court did not abuse its discretion by admitting 404(b) evidence of an argument the defendant had with the victim and of a prior break-in at the victim’s...
Because probable cause supported the issuance of arrest warrants for assault on a female, the defendants were shielded by public official immunity from the plaintiff’s claims based on false imprisonment and other grounds. The defendant officer told the magistrate that the plaintiff, a teacher,...
The trial court did not err by denying the defendant’s motion for post-conviction independent DNA testing. The defendant was convicted of first-degree murder (based on premeditation and deliberation and felony-murder predicated upon discharge of a weapon into occupied property), discharge of a...
The evidence was sufficient to sustain the defendant’s convictions for uttering a forged instrument and attempting to obtain property by false pretenses. Both offenses involved a fraudulent check. The court rejected the defendant’s argument that there was insufficient evidence to establish that...
In a case involving convictions for uttering a forged instrument and attempting to obtain property by false pretenses in connection with a fraudulent check, the trial court did not err by admitting evidence of a second fraudulent check. The second check was virtually identical to the first one,...
Where search warrants were unsealed in accordance with procedures set forth in a Senior Resident Superior Court Judge’s administrative order and where the State failed to make a timely motion to extend the period for which the documents were sealed, the trial judge did not err by unsealing the...
The evidence was sufficient to sustain the defendant’s convictions for uttering a forged instrument and attempting to obtain property by false pretenses. Both offenses involved a fraudulent check. The court rejected the defendant’s argument that there was insufficient evidence to establish that...
Where search warrants were unsealed in accordance with procedures set forth in a Senior Resident Superior Court Judge’s administrative order and where the State failed to make a timely motion to extend the period for which the documents were sealed, the trial judge did not err by unsealing the...
In a kidnapping, assault and indecent exposure case, the trial court erred by admitting testimony from a witness about a sexual encounter with the defendant to show identity, modus operandi, intent, plan, scheme, system, or design. The encounter occurred nine years earlier. The witness testified...
(1) In an embezzlement case in which the defendant was alleged to have improperly written company checks to herself, there was sufficient evidence that the defendant was an agent of the company and not an independent contractor. Two essential elements of an agency relationship are the authority...
In a rape case, the trial court did not err by admitting evidence that the defendant assaulted a male visiting the victim’s home and called the victim a whore and slut upon arriving at her house and finding a male visitor. Rejecting the defendant’s argument that these incidents bore no...
The prosecutor did not improperly refer to the defendant’s failure to testify but rather properly commented on the defendant’s failure contradict or challenge the State’s evidence.
The trial court erred by summarily denying the defendant’s motion for appropriate relief (MAR) and accompanying discovery motion. In the original proceeding, the trial court denied the defendant’s motion to suppress in part because it was not filed with the required affidavit. After he was...
The trial court did not commit plain error in its jury instruction on reasonable doubt. When reinstructing on this issue, the trial court gave the pattern instruction and added: “[r]emember, nothing can be proved 100 percent basically, but beyond a reasonable doubt. So you have to decide for...
There was sufficient evidence that the defendant was the perpetrator of the charged offenses so that the trial court did not err by denying the defendant’s motion to dismiss. The crimes occurred at approximately 1:00 am at the victim’s home. The intruder took a fifty-dollar bill, a change purse...
On appeal from judgment revoking probation, the defendant could not challenge the trial court’s jurisdiction to enter the original judgment as this constituted an impermissible collateral attack on the original judgment.
In a murder case where a defense witness testified that the defendant was not a violent person, thereby placing a pertinent character trait at issue, no plain error occurred when the State cross-examined the witness about whether she knew of the defendant’s prior convictions or his pistol...
In a rape case, the trial court did not err by admitting evidence that the defendant assaulted a male visiting the victim’s home and called the victim a whore and slut upon arriving at her house and finding a male visitor. Rejecting the defendant’s argument that these incidents bore no...
In a rape case, the trial court was not required to intervene ex mero motu when the State asserted in closing: “What happened . . . is no different than a hunter in the field, a beast in the field sitting [sic] a prey, stalking the prey, learning the prey, and at some point in time, eventually...
In an impaired driving and driving while license revoked case there was sufficient evidence other than the defendant’s extrajudicial confession to establish that the defendant was driving the vehicle. Among other things, the vehicle was registered to the defendant and the defendant was found...
The court held that the trial court erred by summarily denying the defendant’s MAR alleging ineffective assistance. Because the State did not contest that trial counsel’s failure to attach the requisite affidavit to a suppression motion constituted deficient representation, the focus of the...
A non-testifying victim’s statement to a law enforcement officer was testimonial. In the defendant’s trial for kidnapping and other charges, the State introduced statements from a different victim (“the declarant”) who was deceased at the time of trial. The facts surrounding the declarant’s...
An indictment charging the defendant with larceny from a merchant by removal of antitheft device in violation of G.S. 14-72.11 was defective in two respects. The elements of this offense include a larceny (taking the property of another, carrying it away, without the consent of the possessor,...
An indictment charging the defendant with being a sex offender unlawfully on the premises of a place intended primarily for the use, care, or supervision of minors in violation of G.S. 14-208.18 was defective. According to the court the “essential elements” of the charged offense are that the...
The trial court committed plain error during the habitual felon phase of a trial by admitting into evidence plea transcripts for the defendant’s prior felony convictions without redacting irrelevant information pertaining to the defendant's prior drug use, mental health counseling, and lenient...
The trial court properly applied the forfeiture by wrongdoing exception to the Crawford rule. At the defendant’s trial for first-degree murder and kidnapping, an eyewitness named Wilson was excused from testifying further after becoming distraught on the stand. The trial court...
The trial court did not err by considering the seriousness of the offense when exercising its discretion to choose a minimum term within the presumptive range.
The trial court did not err by declining to give the defendant’s proposed jury instruction on the element that the defendant acted “knowingly.” The instructions given by the trial court adequately contained the substance of the defendant’s proposed instruction. Specifically, it instructed the...
G.S. 12-3(12) (defining “imprisonment for one month” as imprisonment for 30 days) is inapplicable to sentences imposed under structured sentencing. For purposes of structured sentencing, the term “month” is defined by G.S. 12-3(3) to mean a calendar month.
The trial court erred by concluding that an officer lacked reasonable suspicion to detain the defendant beyond the scope of a routine traffic stop. The officer lawfully stopped the vehicle for a seatbelt violation but then extended the detention for arrival of a canine unit. The State argued...
No double jeopardy violation occurred when the defendant was convicted of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious bodily injury based on the same events. Each offense includes an element not included in the other.
The court rejected the defendant’s argument that his confession was improperly obtained after he invoked his right to counsel. Although the defendant invoked his right to counsel before making the statements at issue, because he re-initiated the conversation with police, his right to counsel was...
The trial court abused its discretion by summarily denying the defendant’s motion under G.S. 15A-980 for suppression, in connection with sentencing, of a prior conviction which the defendant alleged was obtained in violation of her right to counsel. The trial court dismissed the motion as an...
A criminal summons charging the defendant with impaired driving was not defective on grounds that it failed to allege the exact hour and minute that the offense occurred.
The court rejected the defendant’s argument that his confession was involuntary because it was obtained through police threats. Although the defendant argued that the police threatened to imprison his father unless he confessed, the trial court’s findings of fact were more than sufficient to...
(1) The State’s dismissal of an impaired driving charge following the district court’s denial of its motion to continue did not violate separation of powers. The defendant had argued that the district attorney is an executive branch official who was obligated to proceed with the trial when the...
The trial court did not commit plain error by instructing the jury that the defendant had the burden of persuasion to prove the defense of automatism. Automatism is an affirmative defense, and the burden is on the defendant to prove its existence to the jury.
Fees that the defendant StubHub charged for its services did not violate G.S. 14-344 (sale of admission tickets in excess of printed price) [Author’s note: As the court noted, after the present case was initiated, the General Assembly amended G.S. 14-344 and enacted G.S. 14-344.1 to exempt...
The trial court did not err by denying the defendant’s motion to suppress three statements made while he was in the hospital. The defendant had argued that medication he received rendered the statements involuntary. Based on testimony of the detective who did the interview, hospital records, and...
The defendant was not denied his speedy trial rights. The date of the offense and the initial charge was 7 March 2006. The defendant was tried upon a re-filed charge in district court on 13 Apr. 2009. The defendant never made a speedy trial motion in district court; his only speedy trial request...
No double jeopardy violation occurred when the defendant was convicted of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious bodily injury based on the same events. Each offense includes an element not included in the other.
The trial court abused its discretion by summarily denying the defendant’s motion under G.S. 15A-980 for suppression, in connection with sentencing, of a prior conviction which the defendant alleged was obtained in violation of her right to counsel. The trial court dismissed the motion as an...
The trial court erred by granting the defendant's motion to suppress on grounds that a checkpoint was unlawful under G.S. 20-16.3A. Because the defendant did not actually stop at the checkpoint, its invalidity was irrelevant to whether an officer had sufficient reasonable suspicion to stop the...
The trial court did not err by removing the defendant’s retained counsel, Wayne Eads, based on the possibility that Eads might be called to testify as a witness at trial. The defendant was charged with attempted murder and felony assault. The defendant was having an affair with the victim’s wife...
The court rejected the defendant’s argument that his Fifth Amendment right to remain silent was violated where there was ample evidence to support the trial court’s finding that the defendant did not invoke that right. The defendant had argued that his refusal to talk to police about the crimes...
An officer had reasonable suspicion to stop the defendant’s vehicle where the defendant’s weaving in his own lane was sufficiently frequent and erratic to prompt evasive maneuvers from other drivers. Distinguishing cases holding that weaving within a lane, standing alone, is insufficient to...
In a case in which the State conceded that a translator testified as an expert, the trial court erred by failing to recognize the State’s violation of the discovery rules in G.S. 15A-903(a)(2). However, on the facts presented, the trial court did not abuse its discretion by refusing to exclude...
The trial court did not err by excluding the defendant’s statement to a doctor, offered under Rule 803(4) (hearsay exception for medical diagnosis and treatment). The defendant told the doctor that he only confessed to the murder because an officer told him he would receive the death penalty if...
An officer lawfully stopped a vehicle after observing the defendant drive approximately 10 mph above the speed limit. The court rejected the defendant’s argument that the traffic stop was a pretext to search for drugs as irrelevant in light of the fact that the defendant was lawfully stopped for...
In an accessory after the fact case the evidence was sufficient to establish that the defendant knew that a gun he had hidden was used to commit a murder.
The defendant’s response to the officer’s questioning while on the ground and being restrained with handcuffs should have been suppressed because the defendant had not been given Miranda warnings. The officer’s questioning constituted an interrogation and a reasonable person in the...
The defendant did not withdraw his consent to search his car when, while sitting in a nearby patrol car, he said several times: “they’re tearing up my trunk.” A reasonable person would not have considered these statements to be an unequivocal revocation of consent.
No violation of the Eighth Amendment’s prohibition against cruel and unusual punishment occurred when the defendant, who was 16 years old at the time of his arrest, was convicted of first degree murder and sentenced to life in prison without the possibility of parole . The court rejected the...
An officer had a reasonable, articulable suspicion that criminal activity was afoot when he detained the defendant. After 10 pm the officer learned of a report of suspicious activity at Auto America. When the officer arrived at the scene he saw the defendant, who generally matched the...
The court rejected the defendant’s argument that his constitutional right to confront witnesses against him was violated when the trial court refused to permit defense counsel to cross examine the defendant’s accomplices about conversations they had with their attorneys regarding charge...
An officer had a reasonable, articulable suspicion that criminal activity was afoot when he detained the defendant. After 10 pm the officer learned of a report of suspicious activity at Auto America. When the officer arrived at the scene he saw the defendant, who generally matched the...
Although the search of the defendant’s vehicle was not valid as one incident to arrest under Gant, it was a valid consent search.
An officer lawfully stopped a vehicle after observing the defendant drive approximately 10 mph above the speed limit. The court rejected the defendant’s argument that the traffic stop was a pretext to search for drugs as irrelevant in light of the fact that the defendant was lawfully stopped for...
The court held that Padilla v. Kentucky, 559 U.S. 356 (Mar. 31, 2010), dealing with ineffective assistance of counsel in connection with advice regarding the immigration consequences of a plea, did not apply retroactively to the defendant’s motion for appropriate relief. Applying ...
(1) The trial court did not abuse its discretion by giving an Allen charge. During the jury’s second day of deliberations in a murder case, it sent a note to the trial judge stating that the jurors could not agree on a verdict. The trial judge inquired as to the numerical division,...
An indictment for resisting an officer was not defective. The indictment alleged that the defendant resisted “by not obeying [the officer’s] command [to stop]." The court rejected the defendant’s argument that the indictment failed to state with sufficient particularity the manner in which the...
In a trafficking by possession case there was sufficient evidence of knowing possession where the defendant was driving the vehicle that contained the cocaine.
An officer had a reasonable, articulable suspicion that criminal activity was afoot when he detained the defendant. After 10 pm the officer learned of a report of suspicious activity at Auto America. When the officer arrived at the scene he saw the defendant, who generally matched the...
A consent search of the defendant’s vehicle was not invalid because it involved taking off the rear quarter panels. The trial court found that both rear quarter panels were fitted with a carpet/cardboard type interior trim and that they “were loose.” Additionally, the trial court found that the...
Reasonable suspicion supported the length of the stop. The officer’s initial questions regarding the defendant’s license, route of travel, and occupation were within the scope of the traffic stop. Any further detention was appropriate in light of the following facts: the defendant did not have a...
The defendant’s voluntary consent to search his vehicle extended to the officer’s looking under the hood and in the vehicle’s air filter compartment.
In an impaired driving case, there was sufficient evidence apart from the defendant’s extrajudicial confession to establish that he was driving the vehicle. When an officer arrived at the scene, the defendant was the only person in the vehicle and he was sitting in the driver's seat.
The trial court erred by setting aside the plea agreement in response to the defendant’s motion seeking return of seized property. The defendant pleaded guilty pursuant to a plea agreement that called for, in part, the return of over $6,000 in seized funds. The defendant complied with her...
The trial court properly allowed the State’s witness to use a prior statement to refresh her recollection. The prior statement was made to an officer and recounted an interaction between her and the defendant. The witness had an independent recollection of her conversation with the defendant and...
The trial court erred by allowing the State to impeach a defense witness with a prior conviction that occurred outside of the ten-year “look-back” for Rule 609 when the trial court made no findings as to admissibility. However, no prejudice resulted.
The court rejected the defendant’s argument that he had an absolute right to waive the right to be present at trial. The court noted that no such right exists.
The trial court did not commit plain error by categorizing multiple identical charges in one instruction. The trial court gave the jury a copy of the instructions and separate verdict sheets clearly identifying each charge.
A consent DVPO that lacked any finding that the defendant committed an act of domestic violence it was void ab initio. The court reasoned: “Without a finding by the trial court that an act of domestic violence had occurred, the trial court had no authority under Chapter 50B to enter an order for...
In a trafficking by possession case, the evidence was sufficient to show constructive possession. After receiving a phone call from an individual named Shaw requesting cocaine, the defendant contacted a third person, Armstrong, to obtain the drugs. The defendant picked up Armstrong in a truck...
The court took judicial notice of the clerk of superior court’s records showing that the defendant paid $1,758.50, the total amount due for court costs and fines pursuant to a criminal judgment.
The defendant’s plea was not constitutionally valid where the trial judge misinformed the defendant of the maximum sentence he would receive. The trial court told the defendant that the maximum possible sentence would be 168 months' imprisonment when the maximum sentence (and the maximum...
The court rejected the defendant’s Harbison claim (it is ineffective assistance of counsel for a defense lawyer to concede guilt without the defendant’s consent) where defense counsel raised the admission with the trial court before it was made and the defendant consented to counsel’s...