Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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The court vacated the defendant’s sentence on an impaired driving conviction and remanded for a new sentencing hearing where the State failed to provide the defendant with notice of its intent to use an aggravating factor under G.S. 20-179(d).
Where the defendant was charged with impaired driving and reckless driving and the State took a voluntary dismissal of the reckless driving charge in district court, that charge was not properly before the superior court on appeal for trial de novo and judgment on that offense must be vacated....
Because of a procedural error by the State, the court declined to address an issue regarding the born alive rule presented in the State’s appeal of a trial court’s order dismissing capital murder charges. The defendant shot a woman who was pregnant with twins. Although the bullet did not strike...
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.
The State could not appeal an order terminating the defendant’s sex offender registration requirement when it had consented to the trial court’s action. The court rejected the State’s argument that the trial court lacked jurisdiction to terminate the defendant because he had not been registered...
In a drug trafficking case, the trial court did not err by denying the defendant’s request for a jury instruction on entrapment. After an individual named Shaw repeatedly called the defendant asking for cocaine, the defendant told Shaw he would “call a guy.” The defendant called a third person...
(1) The evidence was sufficient to sustain a conviction under G.S. 14-454.1(a)(2) (unlawful to “willfully . . . access or cause to be accessed any government computer for the purpose of . . . [o]btaining property or services by means of false or fraudulent pretenses, representations, or promises...
In an impaired driving case, there was sufficient evidence apart from the defendant’s extrajudicial confession that he was driving the vehicle. Specifically, 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 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...
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 did not err by denying the defendant’s request for an instruction on the defense of entrapment by estoppel. The defendant was charged with violating G.S. 14-454.1(a)(2) (unlawful to “willfully . . . access or cause to be accessed any government computer for the purpose of . . . [...
The trial court did not abuse its discretion by joining charges against two defendants for trial, where joinder did not impede the defendant’s ability to receive a fair trial.
In a possession of stolen property case, the evidence was insufficient to establish that the defendant constructively possessed the jewelry at issue. The necessary “other incriminating circumstances” for constructive possession could not be inferred from the fact that the defendant was a high-...
The trial court did not err by rejecting the defendant’s motion to suppress evidence obtained by officers when they entered the property in question. The court concluded that the property constituted an “open field,” so that the investigating officers’ entry onto the property and the...
The trial court committed reversible error by refusing to allow the defendant, after the jury was impanelled, to exercise a remaining peremptory challenge to excuse a juror who had lunch with a friend who was a lawyer in the district attorney's office. Citing State v. Holden, 346 N.C....
Where the trial judge erroneously sentenced the defendant to an aggravated term without finding that an aggravating factor existed and that an aggravated sentence was appropriate, a second judge erroneously treated this as a clerical that could be corrected simply by amending the judgment.
Although concluding that counsel admitted the defendant’s guilt to the jury, the court dismissed the defendant’s Harbison claim without prejudice to his right to file a motion for appropriate relief on that basis in the trial court. Counsel conceded guilt to resisting a public officer...
The evidence supports the trial court’s restitution award for the value of a Honda Accord automobile. The prosecutor introduced documentation that the car was titled in the name of Moses Blunt and that the robbery victim paid $3,790 to Blunt to purchase the car. The prosecutor submitted both the...
(1) Even though the defendant pleaded guilty to a crime and admitted an aggravating factor pursuant to a plea agreement, the trial judge still was required to find that an aggravating factor existed and that an aggravated sentence was appropriate. Failure to do so rendered the sentence invalid...
The trial court did not abuse its discretion by denying the defendant’s motion to strike a juror for cause or his request for an additional peremptory challenge. The defendant argued that a juror should have been excused for cause based on his comments during voir dire that he knew “things that...
The trial court did not abuse its discretion by denying the defendant’s motion for a mistrial on grounds that the State failed to provide the defendant with additional discovery after a meeting with co-defendant William Brown gleaned new information. After recognizing potential discovery...
An entering did not occur for purposes of burglary when the defendant used a shotgun to break a window, causing the end of the shotgun to enter the premises. The court reiterated that to constitute an entry some part of the defendant’s body must enter the premises or the defendant must insert...
The court rejected the defendant’s argument that the trial court’s instructions to the jury coerced a verdict. The jury retired to begin deliberations at 3:38 p.m. At 5:51 p.m., the trial judge brought the jury into the courtroom to inquire about its progress. The jury indicated that it had...
There was no fatal variance between an indictment charging assault with a deadly weapon with intent to kill inflicting serious injury and the evidence at trial. The indictment alleged the deadly weapon to be a handgun while the trial evidence showed it was an AK-47 rifle. The court reasoned: “...
The evidence was sufficient to establish that the defendant took the victim’s car when the defendant forced the victim at gunpoint to take the defendant as a passenger in the vehicle. The fact that the victim was “still physically present in the car cannot negate the reasonable inference that...
The trial court did not abuse its discretion in this murder case by denying the defendant’s motion for a mistrial made in response to a statement by the prosecutor during the State’s direct examination of a witness that “[t]here was testimony in this case that a shot was fired from a shotgun in...
No plain error occurred when the trial judge referred to the complainant as the victim several times in the jury instructions.
The trial court did not err by denying the defendant’s motion to exclude DNA evidence. The alleged crime occurred at a convenience store. An officer collected blood samples from the scene, including blood from cigarette cartons. The defendant argued that the cigarette cartons from which samples...
The court rejected the defendant’s argument that the State used six of its peremptory challenges to excuse prospective African-American jurors in violation of Batson. At a Batson hearing, the State offered race-neutral explanations as to why it excused each juror, including...
For reasons discussed in the opinion, the court held that footage from a surveillance video was properly authenticated.
Evidence of a break-in by the defendant, occurring after the break-in in question, was properly admitted under Rule 404(b). DNA evidence sufficiently linked the defendant to the break-in and the evidence was probative of intent, identity, modus operandi, and common scheme or plan.
The trial court did not err by denying the defendant’s request for a jury instruction on voluntary manslaughter based on imperfect self-defense where, among other things, the State filed a motion requesting that the defendant provide voluntary discovery outlining the defenses he intended to...
Based on the manner of its use, a car was a deadly weapon as a matter of law. The court based its conclusion on the vehicle’s high rate of speed and the fact that the officer had to engage in affirmative action to avoid harm.
The trial court committed reversible error by denying the defendant the right to the final argument based on its ruling that he had “introduced” evidence within the meaning of Rule 10 of the General Rules of Practice for the Superior and District Courts during his cross-examination of the victim...
A pretrial show-up was not impermissibly suggestive. The robbery victim had ample opportunity to view the defendant at the time of the crime and there was no suggestion that the description of the perpetrator given by the victim to the police officer was inaccurate. During the show-up, the...
Because the defendant did not present any evidence at trial, the trial court committed reversible error by denying the defendant final closing argument. Defense counsel cross-examined an officer who responded to a call about the break-in and identified defense Exhibit 2, a report made by that...
The trial court did not abuse its discretion by denying the defendant’s motion for a mistrial on grounds that the State failed to provide the defendant with additional discovery after a meeting with co-defendant William Brown gleaned new information. After recognizing potential discovery...
The trial court did not err by denying the defendant’s motion to dismiss the charges on grounds of a speedy trial violation. The time between arrest and trial was approximately twenty-two months. Although the defendant asserted that the State was responsible for the delay by not calendaring his...
(1) There was sufficient evidence that the defendant was operating the vehicle in question. At trial a witness testified about her observations of the car, which continued from her first sighting of it until the car stopped in the median and the police arrived. She did not observe the driver or...
In a drug trafficking case, the trial court did not err by failing to intervene ex mero motu during the prosecutor’s closing argument. The prosecutor asserted: “Think about the type of people who are in that world and who would be able to testify and witness these type of events. I submit to you...
In a trafficking case, the evidence was sufficient to show that the defendant constructively possessed cocaine found in a vehicle in which the defendant was a passenger. Another occupant in the vehicle testified that the cocaine belonged to the defendant, the cocaine was found in the vehicle “...
The court dismissed the defendant’s Harbison claim without prejudice in order for it to be raised by way of a motion for appropriate relief in the trial division. As to a charge of resisting an officer, defense counsel had argued to the jury that “[T]he elements are there. They were...
The court rejected the defendant’s argument that the trial court lacked jurisdiction to conduct an SBM determination hearing because the DOC did not file a complaint or issue a summons to the defendant as required by the Rules of Civil Procedure. The court concluded that G.S. 14-208.40B(b), “...
(1) In a larceny by employee case, the trial court erred by allowing the State to amend the bill of indictment. The indictment stated that the defendant was an employee of “Cape Fear Carved Signs, Incorporated.” The State moved to amend by striking the word “Incorporated,” explaining that the...
Cell phone records introduced by the State were properly authenticated. At trial the State called Ryan Harger, a custodian of records for Sprint/Nextel, a telecommunications company that transmitted the electronically recorded cell phone records to the police department. The defendant argued...
The defendant gave sufficient notice of his intent to appeal the denial of his motion to suppress so as to preserve his right to appeal. The State had argued that defense counsel’s language was not specific enough to put the trial court and prosecution on notice of his intention to appeal the...
In an impaired driving case, citation language alleging that the defendant acted “willfully” was surplusage.
Over a dissent, the court held that the trial court committed prejudicial error by denying defense counsel’s request to allow into evidence an exhibit showing the victim’s prior convictions for twelve felonies and two misdemeanors, offered under Rule 609. The court noted that Rule 609 is...
Citing State v. Jackson, 162 N.C. App. 695 (2004), in this breaking or entering a motor vehicle case, the court held that the evidence was insufficient where it failed to show that that the vehicle contained any items of value apart from objects installed in the vehicle.
In an impaired driving case, the trial court did not err by declining to instruct on automatism or unconsciousness. The defendant asserted that even though unconsciousness through voluntary consumption of alcohol or drugs does not support an instruction as to automatism or unconsciousness, his...
The trial court erred by denying the defendant’s motion to suppress evidence of his alleged impairment where the evidence was the fruit of an illegal stop. An officer who was surveying an area in the hope of locating robbery suspects saw the defendant pull off to the side of a highway in a...
In a drug trafficking case, the trial court did not err by failing to intervene ex mero motu during the prosecutor’s closing argument. The prosecutor asserted: “Think about the type of people who are in that world and who would be able to testify and witness these type of events. I submit to you...
The trial court did not abuse its discretion by reversing its ruling on the defendant’s motion in limine and allowing the State’s expert witnesses’ firearm identification testimony. The trial court initially had ruled that it would limit any testimony by the experts to statements that the...
(1) The evidence was insufficient to support a charge of uttering a forged check. For forgery, the “false writing must purport to be the writing of a party other than the one who makes it and it must indicate an attempted deception of similarity.” Here, the State presented no evidence that the...
In a case in which the defendant was charged with murdering his wife, the trial court did not abuse its discretion by admitting a letter the defendant wrote years before his wife’s death to an acquaintance detailing his financial hardships. Statements in the letter supported the State’s theory...
The trial court’s instructions to a deadlocked jury unconstitutionally coerced guilty verdicts. The jury began their initial deliberations and continued deliberating for about three hours. Following a lunch break, the jury resumed deliberations. After an hour the jury sent the following note to...
A district court judge did not err by failing to follow an administrative order issued by the senior resident superior court judge when that order was not issued in conformity with G.S. 15A-535(a) (issuance of policies on pretrial release). The administrative order provided, in part, that “the...
Although reversing on other grounds, the court characterized the prosecutor’s closing argument as “grossly improper.” The prosecutor repeatedly engaged in abusive name-calling of the defendant and expressed his opinion that defendant was a liar and was guilty. The entire tenor of the prosecutor’...
(1) Following prior case law, the court held that taking indecent liberties with a child is not an aggravated offense for purposes of lifetime SBM. (2) Relying on State v. Clark, 211 N.C. App. 60 (Apr. 19, 2011) (first-degree statutory rape involving a victim under 13 is an aggravated...
Following State v. Nickerson, 365 N.C. 279 (2011), the court held that unauthorized use is not a lesser included offense of possession of stolen property.
Following State v. Nickerson, 365 N.C. 279 (2011), the court held that unauthorized use is not a lesser included offense of possession of stolen property.
In a child sexual assault case, the trial court erred by allowing a DSS social worker to testify that there had been a substantiation of sex abuse of the victim by the defendant. Citing its opinion in State v. Giddens, 199 N.C. App. 115 (2009), aff’d, 363 N.C. 826 (2010), the...
A district court judge did not err by failing to follow an administrative order issued by the senior resident superior court judge when that order was not issued in conformity with G.S. 15A-535(a) (issuance of policies on pretrial release). The administrative order provided, in part, that “the...
There was sufficient evidence of penetration during anal intercourse to sustain convictions for statutory sex offense and sexual activity by a substitute parent. The victim testified that the defendant “inserted his penis . . . into [her] butt,” that the incident was painful, and that she wiped...
There was sufficient evidence of penetration during anal intercourse to sustain convictions for statutory sex offense and sexual activity by a substitute parent. The victim testified that the defendant “inserted his penis . . . into [her] butt,” that the incident was painful, and that she wiped...
Although reversing on other grounds, the court characterized the prosecutor’s closing argument as “grossly improper.” The prosecutor repeatedly engaged in abusive name-calling of the defendant and expressed his opinion that defendant was a liar and was guilty. The entire tenor of the prosecutor’...
Based on the facts presented in this child sexual assault case, the trial court did not abuse its discretion by denying the defendant’s request to sequester witnesses. The court noted however that “the better practice should be to sequester witnesses on request of either party unless some reason...
In a case in which the defendant was charged with murdering his wife, the trial court did not abuse its discretion by admitting 404(b) evidence pertaining to the defendant’s submission of false information in a loan application. Evidence of the defendant’s financial hardship was relevant to show...
The court held that there was sufficient evidence to sustain the defendant’s conviction for possession of a stolen vehicle, rejecting the defendant’s argument that he did not have reason to believe the vehicle was stolen, in part because the defendant’s own statements indicated otherwise.
Although the State presented evidence that the defendant smoked crack, there was no evidence regarding the crack cocaine’s effect on the defendant’s mental state and thus the trial court did not commit plain error in failing to instruct the jury on the defense of voluntary intoxication.
The trial court erred in convicting the defendant of two counts of possession of a stolen firearm under G.S. 14-71.1. It stated: “While defendant did possess the two separate stolen firearms, we hold that defendant may not be convicted on separate counts for each firearm possessed.
In a first-degree murder case, the trial court did not err by denying the defendant’s motion to dismiss on grounds of insufficiency of the evidence where the State produced evidence of motive, opportunity, and means as well as admissions by the defendant.
The trial court erred in failing to arrest judgment on the defendant’s conviction for accessory after the fact to second-degree burglary. A defendant cannot be both a principal and an accessory to the same crime.
(1) The trial court did not err by instructing the jury that it could find the defendant guilty of second-degree burglary under a theory of accessory before the fact, aiding and abetting, or acting in concert. The separate theories were not separate offenses, but rather merely different methods...
Digital penetration of the victim’s vagina can constitute a sexual act sufficient to support a charge of child abuse under G.S. 14-318.4(a2) (sexual act).
In a possession of stolen goods case, the evidence was insufficient to establish that the defendant knew that the item at issue, a four-wheeler, was stolen. Distinguishing State v. Lofton, 66 N.C. App. 79 (1984), the court noted, among other things, that the cosmetic changes to the four...
The court rejected the defendant’s argument that he could not be convicted of aiding and abetting a sexual offense and child abuse by sexual act on grounds that the person who committed the acts—his son—was under duress from the defendant. Even if the son was under duress, his acts were still...
(1) In a child sexual assault case, the trial court did not err by declining to admit defense-proffered evidence offered under the hearsay exception for excited utterances. The evidence was the victim’s statement to a social worker made during “play therapy” sessions. Because the record...
The trial court erroneously required the defendant to enroll in lifetime SBM on the basis that first-degree sexual offense was an aggravated offense. The court reiterated that first-degree sexual offense is not an aggravated offense. The court remanded for a risk assessment and a new SBM hearing...
In a child sexual offense case, the trial court did not err by excluding defense evidence consisting of testimony by a social worker that during therapy sessions the victim was “overly dramatic,” “manipulative,” and exhibited “attention seeking behavior.” The testimony did not relate to an...
The defendant’s plea agreement impermissibly sought to preserve the right to appeal adverse rulings on his motions to dismiss and in limine when no right to appeal those rulings in fact existed. The court remanded, instructing that the defendant may withdraw his guilty plea and proceed to trial...
In a drug case, the trial court erred by ordering the defendant to pay $1,200.00 as restitution for fees from a private lab (NarTest) that tested the controlled substances at issue. Under G.S. 7A-304(a)(7), the trial court "shall" order restitution in the amount of $600.00 for analysis of a...
The trial court did not abuse its discretion by denying the defendant’s motion for appropriate relief (MAR) made under G.S. 15A-1414 without first holding an evidentiary hearing. Given that the defendant’s MAR claims pertained only to mitigating sentencing factors and the defendant had been...
In a case in which the defendant was charged with killing his infant son, the trial court erred by failing to instruct the jury, as provided in G.S. 15A-1340.16(d), that evidence necessary to prove an element of the offense may not be used to prove a factor in aggravation. After the jury found...
The trial court erred by ordering restitution when the defendant did not stipulate to the amounts requested and no evidence was presented to support the restitution worksheet.
(1) In a child sexual assault case, the trial court did not err by declining to admit defense-proffered evidence offered under the hearsay exception for statements made purposes of medical diagnosis and treatment. The evidence was the victim’s statement to a social worker made during “play...
Because a lab that tested a controlled substance was neither licensed nor accredited, expert testimony regarding testing done at that lab on the substances at issue was inadmissible.
The defendant’s sentence was impermissibly based on his exercise of his constitutional rights. At the sentencing hearing, the trial court noted more than once that the defendant "was given an opportunity to plead guilty[,]" and that his failure to plead was one of the "factors that the Court...
(1) The State presented sufficient evidence to establish that a stun gun was a dangerous weapon for purposes of armed robbery. The court concluded, in part, that although the victim did not die or come close to death, she was seriously injured. Given that serious injury “a permissive inference...
In a child sexual assault case, the trial court did not commit plain error by impermissibly expressing an opinion when it described the child as the “victim” in its jury instructions.
(1) The trial court improperly allowed an officer to testify that a substance was cocaine based on a visual examination. (2) However, that same officer was properly allowed to testify that a substance was marijuana based on visual identification. (3) In a footnote, the court indicated that the...
(1) In a drug case, the court followed State v. Meadows, 201 N.C. App. 707 (2010), and held that the trial court erred by allowing an offer to testify as an expert concerning the use and reliability of a NarTest machine. (2) The trial court erred by admitting testimony by an expert in...
There was sufficient evidence of anal penetration to support a sexual offense charge. Although the evidence was conflicting, the child victim stated that the defendant’s penis penetrated her anus. Additionally, a sexual assault nurse examiner testified that the victim’s anal fissure could have...
The defendant’s sentence was impermissibly based on his exercise of his constitutional rights. At the sentencing hearing, the trial court noted more than once that the defendant "was given an opportunity to plead guilty[,]" and that his failure to plead was one of the "factors that the Court...
The trial court erred by ordering lifetime SBM. The trial court concluded that the defendant was not a sexually violent predator or a recidivist and that although the offenses involved the physical, mental, or sexual abuse of a minor, he did not require the highest possible level of supervision...
The trial court erred by terminating the petitioner’s sex offender registration. G.S. 14-208.12A provides that 10 years “from the date of initial county registration,” a person may petition to terminate registration. In this case the convictions triggering registration occurred in 1995 in...
In a sex offense case, the defendant received ineffective assistance of counsel when counsel failed to object to the prosecutor’s motion in limine to exclude specific reference to a prior DSS hearing and/or to clarify the evidence regarding that hearing. At the prior hearing the district court...
The trial court erred in calculating the defendant’s prior record level with respect to whether a federal conviction was substantially similar to a N.C. felony. The determination of substantial similarity is a question of law which cannot be determined by stipulation to the worksheet.
In a case in which there was a dissenting opinion, the court held that the trial court did not err with respect to instructions on two counts because the jury could properly have found either anal intercourse or fellatio and was not required to agree as to which one occurred.
(1) In a case in which the defendant faced homicide charges in connection with the death of an officer in a vehicular accident while that officer responded to a call regarding the defendant’s flight from another officer’s lawful stop of the defendant’s vehicle, the trial court did not err by...
A conviction for habitual misdemeanor assault can be used as a predicate felony for habitual felon status.
In a case in which a second officer got into a vehicular accident and died while responding to a first officer’s communication about the defendant’s flight from a lawful stop, the defendant’s flight from the first officer was the proximate cause of the second officer’s death. The evidence was...
(1) For purposes of a felon in possession charge, the evidence was insufficient to establish that the defendant possessed a firearm found along the route of his flight by vehicle from an officer. The defendant fled from an officer attempting to make a lawful stop. The officer did not see a...
The trial court erred by submitting to the jury three aggravating factors that had not been alleged in the indictment as required by G.S. 15A-1340.16(a4). The three aggravating factors were that the defendant used a firearm equipped with an unregistered silencing device; the defendant's conduct...
In a case in which a second officer died in a vehicular accident when responding to a first officer’s communication about the defendant’s flight from a lawful stop, the evidence was sufficient to establish that the defendant’s flight was the proximate cause of death to support a charge of...
Because evidence admitted for purposes of corroboration is not admitted for the truth of the matter asserted, Crawford does not apply to such evidence.
In a case in which a second officer got into a vehicular accident and died while responding to a first officer’s communication about the defendant’s flight from a lawful stop, the evidence was sufficient to establish malice for purposes of second-degree murder. The defendant’s intentional flight...
Defense counsel’s cross-examination of a declarant at a probable cause hearing satisfied Crawford’s requirement of a prior opportunity for cross-examination.
The trial court did not err by dismissing charges of felony breaking or entering and felony larceny. The State presented evidence that an unknown man, who appeared to be concealing his identity, was seen walking around the victim’s yard carrying property later determined to have been taken from...
In an indecent liberties case, the evidence was sufficient to establish that the defendant engaged in conduct for the purpose of arousing or gratifying sexual desire. While at a store, the defendant crouched down to look at the victim’s legs, “fell into” the victim, wrapping his hands around her...
The trial court’s admission of photo identification evidence did not violate the defendant’s right to due process. The day after a break-in at her house, one of the victims, a high school student, became upset in school. Her mother was called to school and brought along the student’s sister, who...
The trial court did not err by denying the defendant’s motion to suppress statements made while a search warrant was being executed. The defendant and his wife were present when the search warrant was executed. After handcuffing the defendant, an officer escorted him to a bathroom, read him ...
The trial court’s admission of photo identification evidence did not violate the defendant’s right to due process. The day after a break-in at her house, one of the victims, a high school student, became upset in school. Her mother was called to school and brought along the student’s sister, who...
The trial court properly exercised its discretion when denying the jury’s request to review testimony. Although the trial court’s statements to the jury indicate it thought that a review of that testimony was not possible (statements that normally suggest a failure to exercise discretion), the...
The trial court did not commit plain error by admitting an officer’s lay opinion testimony identifying the defendant as the person depicted in a videotape. The defendant argued that the officer was in no better position than the jury to identify the defendant in the videotape. However, the...
(1) The court rejected the defendant’s argument that since no civil summons was issued, the trial court had no jurisdiction to impose SBM; the trial court had jurisdiction under G.S. 14-208.40A to order SBM. (2) The trial judge erroneously concluded that the defendant had a reportable conviction...
(COA11-273) In a case involving a sex offender’s failure to give notice of an address change, the court held that the evidence was sufficient to establish that the defendant changed his address. Among other things, a neighbor at the new address testified that the defendant stayed in an upstairs...
In a case involving attempted murder and other charges, the prosecutor’s reference to the victims as sheep and the defendant as a “predator” did not require the trial court to intervene ex mero motu. However, the court stated that comparisons between criminal defendants and animals are strongly...
(1) In a drug case, no plain error occurred when the trial court allowed the State’s expert forensic chemist to testify as to the results of his chemical analysis of the substance in question. Through the expert’s testimony as to his professional background and use of established forensic...
(COA10-1485). The defendant’s right to be protected from double jeopardy was violated when, after being convicted of felony stalking, he was again charged and convicted of that crime. Because the time periods of the “course of conduct” for both indictments overlapped, the same acts could result...
The trial court did not err by admitting a videotape of a controlled buy as substantive evidence where the State laid a proper foundation for the videotape. The court rejected the defendant’s argument that the State was required to proffer a witness to testify that the tape accurately depicted...
In a case involving first-degree murder and other charges, the trial court did not err by denying the defendant’s mistrial motion. On July 16th the trial court learned that while two jurors were leaving the courthouse the previous day after the verdict was rendered in the guilt phase...
(1) In a child sexual assault case, the defendant’s confrontation rights were not violated when the trial court permitted the child victim to testify by way of a one-way closed circuit television system. The court held that Maryland v. Craig survived Crawford and that the...
(COA10-1485). Because the defendant was never arraigned on a second indictment (that did not indicate that it was a superseding indictment), the second indictment did not supersede the first indictment.
The trial court erred by sentencing the defendant as a level IV offender when the State failed to present sufficient evidence establishing that out-of-state offenses were substantially similar to North Carolina offenses. The State presented printed copies of out-of-state statutes purportedly...
Under the circumstances, no error occurred when the trial court allowed an officer to testify that a substance was crack cocaine based on visual examination and on the results of a narcotics field test kit (NIK). After officers observed the substance, the defendant ate it, in an attempt to...
No plain error occurred when the trial court admitted expert medical testimony identifying the victim’s death as a homicide. Medical experts described the nature of the victim’s injuries and how those injuries had resulted in his death. Their testimony did not use the word "homicide" as a legal...
There was sufficient evidence of malice to support a second-degree murder conviction. Based on expert testimony the jury could reasonably conclude that the child victim did not die from preexisting medical conditions or from a fall. The jury could find that while the victim was in the defendant’...
The evidence was sufficient to support a conviction of armed robbery under an acting in concert theory. Although the record did not reveal whether the defendant shared the intent or purpose to use a dangerous weapon during the robbery, this was not a necessary element under the theory of acting...
An officer executing a search warrant at a home reasonably believed that for officer safety he should pat down the defendant, who was present at the house when officers arrived to execute the search warrant. The search warrant application stated that illegal narcotics were being sold from the...
In an armed robbery prosecution, evidence of a break-in occurring hours after the incident in question was properly admitted under the “‘course of conduct’” or ‘complete story’ exception.” The evidence was necessary for the jury to understand how the defendant was identified as the perpetrator...
The trial court violated G.S. 15A-1233 by responding to a jury request to review evidence and sending the evidence back to the jury room instead of bringing the jury into the courtroom. However, no prejudice resulted.
The trial court did not commit plain error by allowing a detective to identify the defendant as the person shown in a still photograph from a store’s surveillance tapes. The detective observed the defendant in custody on the morning that the photo was taken, affording him the opportunity to see...
No plain error occurred when the trial court allowed a detective to give lay opinion testimony that items were purchased with a stolen credit card and it looked like someone had tried to hide them; subtotals on a store receipt indicated that the credit card was stolen; blood was present on...
Although there was no material conflict in the evidence as to whether the defendant was impaired when he made a statement, the court held, over a dissent, that there was a material conflict as to whether he was in custody and that the trial court erred by failing to make the necessary findings...
The trial court did not err by denying the defendant’s motion to discharge the jury venire on grounds that the defendants’ race (African-American) was disproportionately underrepresented. To establish a prima facie violation for disproportionate representation in a venire, a defendant must show...
In a murder case, the trial court did not err by allowing law enforcement officers to testify that they had observed a small hair on the wall at the murder scene and that the hair appeared to have tissue attached. The hair was not collected as evidence. The court concluded that the State is not...
The evidence supported the trial court’s finding that based on an officer’s training and experience, he immediately formed the opinion that a bulge in the defendant’s pants contained a controlled substance when conducting a pat down. The officer was present at the location to execute a search...
In a murder case, the trial court did not err by denying the defendant’s request for a jury instruction on diminished capacity. The defendant had argued that he was entitled to the instruction based on evidence that he suffered from post-traumatic stress syndrome, alcohol dependence, and...
The trial court erred denying the defendant’s motion to suppress. Officers responded to a complaint of loud music in a location they regarded as a high crime area. The officers did not see the defendant engaged in any suspicious activity and did not see any device capable of producing loud music...
The defendant’s right to be present when sentence is pronounced was not violated when the trial judge included in the judgment court costs and fees for community service that had not been mentioned in open court. The change in the judgment was not substantive. “[E]ach of the conditions imposed...
The trial court did not err by denying the defendant’s motion to redact an officer’s statements in a transcript of an interview of the defendant in which the officer accused the defendant of telling a “lie” and giving an account of the events that was “bullshit” and like “the shit you see in the...
The trial court did not err by denying the defendant’s request to redact certain statements from a transcript of the defendant’s interview with the police. In the statements at issue, an officer said that witnesses saw the defendant pick up a knife and stab the victim. The statements were not...
The trial court erred by admitting evidence obtained by an officer who exceeded the proper scope of a Terry frisk. After the officer stopped the juvenile, he did a weapons frisk and found nothing. When the officer asked the juvenile to identify himself, the juvenile did not respond....
The defendant’s flight from a consensual encounter with the police did not constitute probable cause to arrest him for resisting an officer.
In sexual assault case involving a child victim, no error occurred when the trial court admitted 404(b) evidence that the defendant engaged in sexual contact with another child to show common plan or scheme. The court rejected the defendant’s argument that the acts were not sufficiently similar...
The trial court did not abuse its discretion by allowing the State to display an enhanced version (frame-by-frame presentation) of a video recording during closing argument and jury deliberations. The trial court correctly determined that the enhanced version was not new evidence since the...
In a child sexual abuse case, no plain error occurred when the trial court allowed the State’s expert to testify that the victim exhibited some classic signs of a sexually abused child. The expert did not testify that the victim was in fact sexually abused.
The trial court did not err by refusing to instruct on voluntary intoxication. Some evidence showed that the defendant had drunk two beers and "could feel it," had taken Xanax, and may have smoked crack cocaine. However, the defendant herself said she was not drunk and had not smoked crack. The...
The trial court erred denying the defendant’s motion to suppress. Officers responded to a complaint of loud music in a location they regarded as a high crime area. The officers did not see the defendant engaged in any suspicious activity and did not see any device capable of producing loud music...
The trial court did not abuse its discretion by allowing the State to display an enhanced version (frame-by-frame presentation) of a video recording during closing argument and jury deliberations. The trial court correctly determined that the enhanced version was not new evidence since the...
The trial court did not err by sustaining the State’s objection under the Rape Shield Statute. After the victim had already testified that she was unsure whether her aborted child was fathered by the defendant or her boyfriend, the defense questioned a witness in order to show that the victim...
In a maiming without malice case, the evidence was sufficient to show that the defendant intended to strike the victim’s finger with the intent to disable him. The intent to maim or disfigure may be inferred from an act which does in fact disfigure the victim, unless the presumption is rebutted...
In a maiming case in which the defendant was accused of attacking the victim with a pickaxe and almost severing his finger, no plain error occurred when the trial judge admitted 404(b) evidence that the defendant had previously attacked the victim with a fork and stabbed his finger. The 404(b)...
A juvenile petition alleging felony larceny was fatally defective because it contained no allegation that the alleged victim, the Crossings Golf Club, was a legal entity capable of owning property.
In sexual assault case involving a child victim, there was a fatal variance between the indictment, that alleged an offense date of March 30, 2000 – December 31, 2000, and the evidence, which showed that the conduct occurred in the Spring of 2001. The State never moved to amend the indictment....
The trial court did not err by instructing the jury that a pickaxe was a deadly weapon. The pickaxe handle was about 3 feet long, and the pickaxe weighed 9-10 pounds. The defendant swung the pickaxe approximately 8 times, causing cuts to the victim’s head that required 53 staples. She also...
Where the evidence showed that the defendant’s attack on the victim and the taking of his wallets constituted a single, continuous transaction, the evidence was sufficient to support an armed robbery charge. The court rejected the defendant’s argument that she took the victim’s wallets only as...
No violation of G.S. 15A-1335 occurred on resentencing. A jury found the defendant guilty of felonious breaking and entering, felonious larceny, felonious possession of stolen goods, and for being a habitual felon. The trial court consolidated the offenses for judgment and sentenced the...
The evidence was sufficient to sustain a conviction for receiving goods explicitly represented as stolen by a law enforcement officer. No specific words are required to be spoken to fulfill the “explicitly represented” element of the offense. Rather the statute “merely requires that a person...
Because the statements at issue were not admitted for the truth of the matter asserted and therefore were not hearsay, their admission did not implicate the confrontation clause. The statements at issue included statements of an officer during an interrogation of the defendant. In his statements...
The evidence was sufficient to sustain the defendant’s conviction for impaired driving when there was evidence of two .08 readings. The court rejected the defendant’s argument that since the blood alcohol reading was the lowest for which he could be convicted under the statute, the margin of...
Guilty verdicts of trafficking in opium and selling and possessing with intent to sell and deliver a schedule III preparation of an opium derivative are not mutually exclusive. There is no support for the defendant's argument that a schedule III preparation of an opium derivative does not...
There was sufficient evidence of malice to sustain a second-degree murder conviction. Because there was evidence that the defendant killed the victim with a deadly weapon, the jury could infer that the killing was done with malice. The court rejected the defendant’s argument that his statements...
The trial court erred by determining that a clerical error on a law enforcement officer’s affidavit under G.S. 20-16.2(d) divests the DMV of its authority to suspend the driving privileges of a person who has willfully refused to submit to a chemical analysis when charged with an implied consent...
In a case in which the defendant was indicted on 24 counts of indecent liberties, 6 counts of first-degree statutory sex offense, and 6 counts of second-degree sex offense, the court cited State v. Lawrence, 360 N.C. 368 (2006), and rejected the defendant’s argument that because the...
The evidence was insufficient to support an adjudication of delinquency based on assault by pointing a gun where the weapon was an airsoft gun from which plastic pellets were fired using a “pump action” mechanism. For purposes of the assault by pointing a gun statute, the term “gun” “encompasses...
Citing State v. Cowan, 207 N.C. App. 192, 204 (Sept. 21, 2010), the court rejected the defendant’s argument that the trial court erred by determining that indecent liberties involved the physical, mental, or sexual abuse of a minor.
In a drug case, the trial court did not err by denying the defendant’s motion to suppress when an officer saw the item in question—a bong—in plain view while standing on the defendant’s front porch and looking through the open front door. The court rejected the defendant’s argument that the...
The defendant’s right to a unanimous verdict was violated in a kidnapping case where the trial judge instructed on the theories of restraint, confinement and removal but no evidence supported a theory of removal.
In a kidnapping case, the trial court erred by submitting the theory of removal to the jury. Although evidence supported confinement and restraint, no evidence suggested that the defendant removed the victim in a case where the crime occurred entirely in the victim’s living room. The court...
(1) The court rejected the defendant’s argument that the trial court lacked subject matter jurisdiction to order SBM enrollment because the State failed to file a written pleading providing notice regarding the basis for SBM. (2) The court rejected the defendant’s argument that the trial court...
The evidence was sufficient to support a first-degree felony-murder conviction when the underlying felony was armed robbery and where the defendant used the stolen item—a .357 Glock handgun—to commit the murder and the two crimes occurred during a continuous transaction.
Although the trial judge did not expressly instruct the jury that if it failed to find the required elements it must find the defendant not guilty, the defendant was not prejudiced by the trial court’s alternative final mandate language (“If you do not so find . . . you will not return a verdict...
The trial court erred by finding that sex offense in a parental role (G.S. 14-27.7(a)) is an aggravated offense.
Assuming arguendo that the defendant properly preserved the issue for appeal, no confrontation clause violation occurred when the State’s expert forensic pathologist, Dr. Deborah Radisch, testified about the victim’s autopsy and gave her own opinion concerning cause of death. Distinguishing ...
The fact that officers advised the defendant that if he did not consent to giving oral swabs and surrendering certain items of clothing they would detain him until they obtained a search warrant did not negate the defendant’s voluntary consent to the seizure of those items.
Distinguishing State v. Gentry, 135 N.C. App. 107 (1999), the court held that the trial court did not err by using a felonious breaking or entering conviction for the purpose of both supporting a possession of a firearm by a felon charge and calculating the defendant’s prior record...
There was sufficient evidence that the defendant constructively possessed a gun found in a van to support charges of carrying a concealed weapon and possession of a firearm by a felon. The fact that the defendant was the driver of the van gave rise to an inference of possession. Additionally,...
There was sufficient evidence that the defendant constructively possessed a gun found in a van to support charges of carrying a concealed weapon and possession of a firearm by a felon. The fact that the defendant was the driver of the van gave rise to an inference of possession. Additionally,...
The trial court erred by requiring the defendant to enroll in satellite-based monitoring (SBM) for ten years after finding that he required the highest level of supervision and monitoring. The DOC risk assessment classified the defendant as a low risk and only two of the trial court’s four...
The evidence was sufficient to sustain an armed robbery conviction when the item stolen—a handgun—was also the item used to threaten or endanger the victim’s life.
The trial court did not err by accepting a verdict of guilty of assault with a deadly weapon with intent to kill inflicting serious injury when the jury had acquitted the defendant of attempted first-degree murder. The verdicts were not mutually exclusive under State v. Mumford, 364 N.C...
The evidence was sufficient to support multiple counts of possession of a weapon of mass death and destruction and possession of a firearm by a felon. The defendant had argued that the evidence was insufficient to support multiple charges because it showed that a single weapon was used, and did...
The trial court did not abuse its discretion by granting the State’s motion to join charges against two defendants. The defendant had argued that as a result of joinder, the jury was allowed to consider against him “other crimes” evidence introduced against a co-defendant. The court rejected...
Officers had reasonable suspicion to stop the defendant. When officers on a gang patrol noticed activity at a house, they parked their car to observe. The area was known for criminal activity. The defendant exited a house and approached the officers’ car. One of the officers had previously made...
The evidence was sufficient to support multiple counts of possession of a weapon of mass death and destruction and possession of a firearm by a felon. The defendant had argued that the evidence was insufficient to support multiple charges because it showed that a single weapon was used, and did...
(1) In a felony speeding to elude case, the trial court did not err by giving a disjunctive jury instruction that allowed the jury to convict the defendant if it found at least two of three aggravating factors submitted. The defendant had argued that the trial court should have required the jury...
No plain error occurred when the trial judge instructed the jury on insanity using N.C.P.I.—Crim. 304.10. The defendant had argued that the trial court erred by failing to instruct the jury that the insanity defense applies if a defendant believed, due to mental illness, that his conduct was...
There was sufficient evidence of felonious serious injury by motor vehicle. The defendant had argued that his willful action in attempting to elude arrest was the proximate cause of the victim’s injuries, not his impaired driving. The court rejected this argument concluding that even if his...
When statements were offered to explain an officer’s subsequent action, they were not offered for the truth of the matter asserted and thus were not hearsay.
In dicta, the court noted that the trial judge was entitled to modify her ruling on a suppression motion because court was still in session.
In a robbery case, the court held that the trial judge properly instructed the jury on the doctrine of recent possession as to non-unique goods (cigarettes).
A habitual felon indictment was not defective where it described one of the prior felony convictions as “Possess Stolen Motor Vehicle” instead of Possession of Stolen Motor Vehicle. The defendant’s argument was “hypertechnical;” the indictment sufficiently notified the defendant of the elements...
The court remanded to the trial court for correction of a clerical error in the judgment so that the judgment would reflect the offense the defendant was convicted of committing (trafficking by transportation versus trafficking by delivery).
The trial court erred by failing to make findings of fact that clearly show it considered and evaluated the defendant’s evidence before concluding that the defendant violated his probation by failing to pay the cost of his sexual abuse treatment program. The defendant presented ample evidence of...
The trial court did not err by failing to define the term “larceny” for the jury. The court noted that it has previously determined that “larceny” is a word of “common usage and meaning to the general public[,]” and thus it is not error to not define it in the jury instructions. It further noted...
The trial court did not abuse its discretion by refusing to declare a mistrial and instead allowing the jury to go home and return the next day to continue deliberating. The jury deliberated approximately 7 hours over the course of two days; at the end of the day, when asked whether they wished...
An officer had reasonable suspicion to stop the defendant’s vehicle. An informant told the officer that after having his prescriptions for hydrocodone and Xanax filled, Mr. Shaw would immediately take the medication to defendant Treadway’s residence, where he sold the medications to Treadway;...
In a drug trafficking case, the trial court did not abuse its discretion by allowing the State’s witness to identify the substance as an opium derivative on rebuttal. Under G.S. 15A-1226, a trial judge may, in his or her discretion, permit a party to introduce additional evidence prior to the...
The trial court did not err by denying the defendant’s motion for disclosure of an informant’s identity where the informant’s existence was sufficiently corroborated under G.S. 15A-978(b).
Where the defendant stipulated that he was previously convicted of one count of conspiracy to sell or deliver cocaine and two counts of selling or delivering cocaine and that these convictions were Class G felonies, there was sufficient proof to establish his prior conviction level. The class of...
An officer had reasonable suspicion to stop the defendant’s vehicle. An informant told the officer that after having his prescriptions for hydrocodone and Xanax filled, Mr. Shaw would immediately take the medication to defendant Treadway’s residence, where he sold the medications to Treadway;...
The defendant’s explanation that she was addicted to drugs was not a lawful excuse for violating probation by failing to complete a drug treatment program.
An indictment charging felonious speeding to elude arrest and alleging an aggravating factor of reckless driving was not required to specify the manner in which the defendant drove recklessly.
An officer’s act of handcuffing the defendant during a Terry stop was reasonable and did not transform the stop into an arrest. The officer observed what he believed to be a hand-to-hand drug transaction between the defendant and another individual; the defendant was sitting in the back...
The trial court erred by dismissing larceny by employee charges based on the theory of entrapment by estoppel. The defendant, a public works supervisor, was accused of selling “white goods” and retaining the proceeds. The court concluded that while officials testified that they were aware that...
The trial court erred by dismissing charges on grounds of selective prosecution. The defendant, a public works director, was charged with larceny by employee in connection with selling “white goods” and retaining the proceeds. To demonstrate selective prosecution, the defendant must: (1) make a...
The defendant was not entitled to credit under G.S. 15-196.1 for time spent in a drug treatment program as a condition of probation because the program was not an institution operated by a State or local government.
Officers had reasonable suspicion to stop the defendant. When officers on a gang patrol noticed activity at a house, they parked their car to observe. The area was known for criminal activity. The defendant exited a house and approached the officers’ car. One of the officers had previously made...
A conspiracy to commit armed robbery indictment was defective when it did not allege an agreement to commit an unlawful act. The court rejected the State’s argument that the indictment's caption, which identified the charge as "Conspiracy to Commit Robbery with a Dangerous Weapon," and the...
There was sufficient evidence of malice in a case arising from a vehicle accident involving impairment. The defendant admitted that he drank 4 beers prior to driving. The State’s expert calculated his blood alcohol level to be 0.08 at the time of the collision and other witnesses testified that...
There was sufficient evidence to establish that the defendant constructively possessed a weapon of mass death and destruction. Following law from other jurisdictions, the court held that “constructive possession may be established by evidence showing the defendant’s ownership of the contraband...
There was insufficient evidence of resisting an officer when the defendant fled from a consensual encounter. When the officer approached an apartment complex on a rainy, chilly day, the defendant was standing outside, dressed appropriately in a jacket with the hood on his head. Although the...
The trial court erred by accepting a plea agreement that attempted to preserve the defendant’s right to appeal the trial court’s adverse ruling on his motion to dismiss a felon in possession of a firearm charge on grounds that the statute was unconstitutional as applied. Because a defendant has...
There was sufficient evidence that the defendant’s actions were the proximate cause of death. The defendant argued that two unforeseeable events proximately caused the victims’ deaths: a third-party’s turn onto the road and the victims’ failure to yield the right-of-way. The court found that the...
The trial court erred by ordering the defendant to pay restitution in connection with a conviction for possessing a weapon of mass death and destruction where the State conceded that the restitution had no connection to that conviction.
G.S. 15A-1023(b), which grants a defendant the right to a continuance when a trial court refuses to accept a plea, does not apply when the trial court refuses to accept a plea in the context of a probation revocation proceeding.
The trial court did not err by allowing a lay witness to testify that the defendant was impaired. The witness formed the opinion that the defendant was impaired because of the strong smell of alcohol on him and because the defendant was unable to maintain balance and was incoherent, acting...
(1) The trial court did not abuse its discretion by qualifying the State’s witness as an expert in the fields of forensic blood alcohol physiology and pharmacology, breath and blood alcohol testing, and the effects of drugs on human performance and behavior. The witness was the head of the...
The evidence was sufficient to survive a motion to dismiss. Evidence of faulty driving, along with evidence of consumption of alcohol and cocaine, is sufficient to show a violation of G.S. 20-138.1. Witnesses observed the defendant’s behavior as he was driving, not sometime after. Multiple...
In the defendant’s trial for sex offense, burglary, and other crimes, the trial court did not err by admitting the defendant’s statement, made to an officer upon the defendant’s arrest: “Man, I’m a B and E guy.” Given the charges, the statement was a statement against penal interest pursuant to...
Citing State v. Washington, 141 N.C. App. 354 (2000), the court held that the defendant was properly charged and convicted of attempted murder and assault as to each victim, even though the offenses arose out of a single course of conduct...
The trial judge did not commit plain error by allowing a witness accepted as an expert forensic toxicologist to testify about the effects of cocaine on the body. The defendant had argued that this testimony was outside of the witness’s area of expertise. The court concluded that “[a]s a trained...
(1) Excluding the defendant from an in-chambers conference held prior to the sentencing hearing was harmless beyond a reasonable doubt. The in-chambers conference was recorded, the defendant was represented by counsel and given an opportunity to be heard and to make objections at the sentencing...
In a child sex case, the trial court erred by admitting a DSS social worker’s testimony that she “substantiated” the victim’s claim of sexual abuse by the defendant. This testimony was an impermissible expression of opinion as to the victim’s credibility.
Citing State v. Washington, 141 N.C. App. 354 (2000), the court held that the defendant was properly charged and convicted of attempted murder and assault as to each victim, even though the offenses arose out of a single course of conduct...
The trial court did not err by denying the defendant’s motion to dismiss a charge of second-degree murder. The defendant, after being kicked in the face in a fight inside a nightclub, became angry about his injury, retrieved a 9mm semi-automatic pistol and loaded magazine from his car, and...
The trial court exceeded its statutory authority by mandating that any later sentence imposed on the defendant must run consecutive to the sentence imposed in the case at hand. The court, however, declined to vacate the relevant portion of the judgment, concluding that because the defendant had...
Sentencing factors that might lead to an aggravated sentence need not be alleged in the indictment.
The trial court erred by denying the juvenile’s motion to dismiss a charge of resisting a public officer when no reasonable suspicion supported a stop of the juvenile (the activity that the juvenile allegedly resisted). An anonymous caller reported to law enforcement “two juveniles in Charlie...
The defendant was not in custody when he made a statement to detectives. The defendant rode with the detectives to the police station voluntarily, without being frisked or handcuffed. He was told at least three times — once in the car, once while entering the police station, and once at the...
In a child sex case, the court rejected the defendant’s argument that the trial court erred by ruling that the defendant could not argue that his nephew or someone else had assaulted the victim. It concluded: “Although defendant argues that he was improperly prevented from arguing that someone...
In a child sex case, the trial court erred by failing to require disclosure of material exculpatory information contained in privileged documents that were reviewed in camera by the trial court and pertained to the victim’s allegations. The documents contained “sufficient exculpatory material to...
The trial court committed plain error by charging the jury with a self-defense instruction that related to assaults not involving deadly force (N.C.P.I.—Crim. 308.40) when the defendant was charged with assault with a deadly weapon with intent to kill inflicting serious injury. The court...
The trial court did not commit prejudicial error in violation of G.S. 15A-1222 (judge may not express an opinion) by laughing in the presence of the jury upon hearing a witness’s testimony that defendant “ran like a bitch all the way, way down past his house.” The court concluded that “[a]...
(1) In a child sex case, the trial judge did not err by limiting the defendant’s cross-examination of the prosecuting witness regarding inconsistent statements about her sexual history, made to the police and medical personnel. The evidence did not fit within any exception to Rule 412. The court...
The trial court erred by denying the juvenile’s motion to dismiss a charge of resisting a public officer when no reasonable suspicion supported a stop of the juvenile (the activity that the juvenile allegedly resisted). An anonymous caller reported to law enforcement “two juveniles in Charlie...
The trial court did not err by rejecting the defendant’s Batson challenge as to two black jurors. The prosecutor's explanation with respect to both jurors included the fact that both had a close family member who was incarcerated and had not been "treated fairly." The court rejected the...
In a burglary case, instructions which allowed the jury to find the defendant guilty if they found that he intended to commit a felony larceny, armed robbery, or sexual offense did not impermissibly allow for a non-unanimous verdict.
A burglary indictment alleging that the defendant intended to commit “unlawful sex acts” was not defective.
In an armed robbery case, there was sufficient evidence that the defendant took the victim’s personal property by the use or threatened use of a knife. The victim awoke to find the defendant on top of her holding a knife to her throat. After struggling with him, she pleaded and negotiated with...
There was sufficient evidence supporting the trial judge’s submission of the G.S. 15A-1340.16(d)(6) aggravating factor (offense against a law enforcement officer, etc. while engaged in the performance of or because of the exercise of official duties.) to the jury. Subsection (d)(6)'s "engaged in...
(1) G.S. 15A-711 is not a speedy trial statute. G.S. 15A-711 provides an imprisoned criminal defendant the right to formally request that the prosecutor make a written request for his or her return to the custody of local law enforcement officers in the jurisdiction in which the defendant has...
The court suggested in dicta that on a motion for appropriate relief (as on appellate review) a defendant may be deemed to have waived errors in jury instructions by failing to raise the issue at trial. However, the court did not decide the issue since it concluded that even when considered on...
Having erroneously arrested judgment on a DWI charge to which the defendant had pleaded guilty, the trial court had authority to correct the invalid judgment and sentence the defendant even after the session ended. Citing State v. Branch, 134 N.C. App. 637 (1999), the court noted in...
The statute of limitations applicable to misdemeanor offenses does not apply when the issue of a defendant’s guilt of a misdemeanor offense is submitted to the jury as a lesser included offense of a properly charged felony. Applying this rule, the court held that the two-year misdemeanor statute...
The trial court erred by ordering the defendant to enroll in lifetime satellite-based monitoring. The defendant was convicted of attempted first-degree rape under G.S. 14-27.2, and indecent liberties under G.S. 14-202.1, both sexually violent offenses and thus reportable convictions. At the...
(1) After accepting a defendant’s guilty plea to DWI, the district court had no authority to arrest judgment. (2) Once the defendant appealed to superior court from the district court’s judgment for a trial de novo, the superior court obtained jurisdiction over the charge and the superior court...
Because the defendant failed to present evidence of intoxication to the degree required to show that he was incapable of forming the requisite intent to commit attempted statutory rape and indecent liberties, the trial court did not commit plain error by failing to instruct the jury on voluntary...
In a case involving a 1972 homicide, the trial judge erred by denying the defendant’s motion to dismiss due to insufficient evidence that he was the perpetrator. When the State presents only circumstantial evidence that the defendant is the perpetrator, courts look at motive, opportunity,...
(1) By enacting G.S. 14-223 (resist, delay, obstruct an officer), the General Assembly did not deprive the State of the ability to prosecute a defendant for common law obstruction of justice, even when the defendant’s conduct could have been charged under G.S. 14-223. (2) In a case in which the...
In a case in which two defendants were convicted of attempted murder and felonious assault, the trial judge committed plain error by giving jury instructions that impermissibly grouped the defendants together in presenting the charges and issues to the jury. In its instructions, the trial court...
In a case in which the defendant was charged with obtaining property by false pretenses by lying to church members about his situation, the trial court did not abuse its discretion by admitting 404(b) evidence of the defendant’s similar conduct with regard to other churches, occurring after the...
The court rejected the defendant’s argument that because his sentence at the top of the presumptive range overlapped with the low end of the aggravated range, it was improper without findings of an aggravating factor. No such findings are required to support the defendant’s presumptive range...
The trial court’s failure to dismiss the original indictment after a superseding indictment was filed did not render the superseding indictment void or defective.
(1) G.S. 15A-711(c) could not support the defendant’s statutory speedy trial claim where he had no other criminal charges pending against him at the time he was confined and awaiting trial. (2) The court rejected the defendant’s constitutional speedy trial claim. The defendant made no argument...
The court held in this drug case, the search warrant was supported by probable cause. In his affidavit, the Investigator stated that he had received information within the past 30 days from confidential reliable informants (“CRIs”) that the defendant was selling narcotics from his residence;...
In a triple murder case in which the defendant asserted an insanity defense, the trial court did not err by failing to give the defendant’s requested jury instruction on the commitment process and instead instructing the jury on the issue pursuant to N.C.P.J.I—Crim. 304.10. The pattern...
The trial court did not abuse its discretion by denying the defendant’s untimely motion to strike.
(No. COA10-534). The trial court erred by submitting to the jury the charge of possession with intent to manufacture cocaine because it is not a lesser-included offense of the charged crime of trafficking by possession of cocaine. However, possession of cocaine is a lesser of the charged...
A rectal swab taken from the victim was properly authenticated. An officer processed evidence at the crime scene, was present for the victim’s autopsy, and obtained evidence from the doctor who performed the autopsy, including the rectal swabs, on 24 June 2004. The swabs were then placed in the...
The trial court did not err by failing to intervene ex mero motu when the prosecutor referred to the defendant as a con man, liar, and parasite. The defendant was charged with obtaining property by false pretenses, an offense committed by deceiving or lying to win the confidence of victims....
(No. COA10-534). The trial court erred by submitting to the jury the charge of possession with intent to manufacture cocaine because it is not a lesser-included offense of the charged crime of trafficking by possession of cocaine. However, possession of cocaine is a lesser of the charged offense...
In a felony speeding to elude case there was sufficient evidence that the defendant drove recklessly. An officer testified that the defendant drove 82 mph in a 55 mph zone and that he was weaving around traffic; also a jury could infer from his testimony that the defendant crossed the solid...
The trial court did not err by failing to intervene ex mero motu when, in a triple homicide case, the prosecutor argued, among other things, “If that . . . isn’t murder, I don’t know what is” and “I know when to ask for the death penalty and when not to. This isn’t the first case, it’s the ten...
There was sufficient evidence to support a false pretenses conviction when the defendant falsely told a church congregation that his wife had died and that he was broke to elicit sympathy and obtain property.
The defendant was not in custody when he confessed to three homicides. Officers approached the defendant as he was walking on the road, confirmed his identity and that he was okay, told him that three people had been injured at his residence, and asked him if he knew anything about the situation...
Because an arrest warrant charged the defendant with a violation of G.S. 67-4.2 (failing to confine a dangerous dog), it could not support a conviction for a violation of G.S. 67-4.3 (attack by a dangerous dog). Even though the warrant cited G.S. 67-4.2, it would have been adequate if it had...
(1) In a triple murder case, no confrontation clause violation occurred when the State’s expert medical examiner was allowed to testify in place of the pathologist who performed the autopsies. The medical examiner provided her own expert opinion and did not simply regurgitate the non-testifying...
Citing, State v. Oliver, 155 N.C. App 209 (2002), the court held that no violation of G.S. 15A-1335 occurred when, after the defendant’s two death sentences for murder were vacated, the trial judge imposed two consecutive life sentences.
The trial court did not err by refusing to take judicial notice of provisions in the Federal Register when those provisions were irrelevant to the charged offense.
The trial court committed reversible error by allowing the State to amend an indictment charging conspiracy to engage in “trafficking to deliver Cocaine” to add the following language: “to deliver 28 grams or more but less than 200 grams of cocaine.” To allege all of the essential elements, an...
The trial court did not err by appointing counsel for the defendant where there was no clear and unequivocal waiver. The defendant refused to answer whether he waived or asserted his right to counsel and made contradictory statements on the issue. He stated: “I’m not waiving my right to...
(1) Remanding for additional findings of fact and conclusions of law, the court noted that G.S. 15A-711 does not guarantee a defendant the right to have a matter tried within a specific period of time and is not a "speedy trial" statute. (2) The court remanded for further action the trial court’...
The court rejected the defendant’s speedy trial claim, finding that any delay was caused by his failure to state whether he asserted or waived his right to counsel, requiring four hearings on the issue.
(1) In a case involving murder and other charges, the trial court properly admitted a picture of the defendant with a silver revolver to illustrate a witness’s testimony that she saw the defendant at her apartment with a silver gun with a black handle. Before being received into evidence, the...
In a case in which the defendant was charged with sexually assaulting his minor child, the court held that no plain error occurred when the trial judge admitted the victim’s prior statements that at the time in question the defendant sexually assaulted both her and her sister. The victim...
The trial court did not abuse its discretion by denying the jury’s request, made during deliberations, for a transcript of a witness’s testimony. The trial court expressly denied the request in its discretion; there is no requirement that the trial judge provide any further explanation to...
Citing State v. Clark, 211 N.C. App. 60 (Apr. 19, 2011), the court held that because rape of a child under the age of 13 necessarily involves the use of force or threat of serious violence, the offense is an aggravated offense requiring lifetime SBM. In dicta, it concluded: “Under the...
In a case in which the defendant was convicted of second-degree murder, the trial court committed reversible error by denying the defendant’s request for a jury instruction on involuntary manslaughter. The evidence tended to show that the defendant did not intend to kill or seriously injure the...
Although one of its factual findings was erroneous, the trial court did not err by requiring the defendant to enroll in SBM for five years after finding that he required the highest possible level of supervision.The trial court based its conclusion on a DOC risk assessment of “moderate-low” and...
The evidence was sufficient to establish indecent liberties. The child reported being touched in her genital and rectal area by a male. The victim’s mother testified that she found the victim alone with the defendant on several occasions, and the victim’s testimony was corroborated by her...
(1) There was sufficient evidence that the victim suffered serious injury. The defendant shot the victim with a shotgun, causing injuries to the victim’s calf and 18-20 pellets to lodge in his leg, which did not fully work themselves out for six months. One witness testified that the victim had...
(1) G.S. 14-202(l) (requiring sex offender registration for certain peeping offenses when a judge finds, in part, that the defendant is “a danger to the community”) is not unconstitutionally vague. (2) The trial court erred by requiring the defendant to register as a sex offender when there was...
(1) Defense counsel did not commit a Harbison error during the habitual felon proceeding by admitting that the defendant had pled guilty to three felonies. Although defense counsel admitted the defendant’s prior convictions, he never argued that the jury should find that the defendant...
Applying an elemental analysis, the court determined that first-degree rape under G.S. 14-27.2(a)(1) fits within the definition of an aggravated offense in G.S. 14-208.6(1a). An aggravated offense includes engaging in a sexual act involving vaginal, anal, or oral penetration with a victim (1) of...
A reasonable person in the defendant’s position would not have believed that he or she was under arrest or restrained in such a way as to necessitate Miranda warnings. Key factors in the Miranda custody determination include: whether a suspect is told he or she is free to leave...
(1) This crime is a general intent crime; it does not require the State to prove any specific intent to shoot into the vehicle but only that the defendant intentionally fire a weapon under such circumstances where he or she had reason to believe the conveyance that ended up being shot was...
The trial court did not err by concluding that the vehicle checkpoint passed constitutional muster. The trial court properly concluded that the primary programmatic purpose of the checkpoint was “the detection of drivers operating a motor vehicle while impaired and that the ‘procedure was not...
In a case in which the defendant was charged with committing a sexual offense and indecent liberties against a five-year-old female victim, the trial court committed prejudicial error by admitting evidence that the defendant had anal intercourse with a four-year-old male 18 years earlier. The...
The trial court did not commit plain error by allowing the State to question two witnesses on rebuttal about whether they received money from the victim in exchange for making up statements when the defendant raised the issue of the victim’s veracity on his cross examination.
In a case in which the defendant was charged with sexual offense, indecent liberties and crime against nature against a ten-year-old female victim, no plain error occurred when the trial court admitted evidence of the defendant’s prior bad acts against two other teenaged females. The evidence...
Although the trial court erred by failing to give the final not guilty mandate, under the circumstances presented the error did not rise to the level of plain error.
In a case arising from a pharmacy break-in, the court rejected the defendant’s argument that the trial court erred by failing to dismiss trafficking in opium charges because the State did not present a chemical analysis of the pills. Citing State v. Ward, 364 N.C. 133 (2010), and ...
No plain error occurred when the trial court instructed the jury on the 404(b) evidence using N.C. Pattern Jury Instruction – Crim. 104.15 but declined to instruct that the evidence could not be used to prove defendant’s character or that he acted in conformity therewith.
The trial court did not err by denying the defendant’s request to instruct the jury on the defense of withdrawal where the evidence showed that the defendant completed his assigned task in the home invasion (kicking in the door) and failed to renounce the common purpose or indicate that he did...
By orally denying the defendant's motion to suppress, the trial court failed to comply with G.S. 15A-977(f)’s requirement that it enter a written order with findings of fact resolving material conflicts in the evidence. The statute mandates a written order unless the trial court provides its...
First-degree sexual offense under G.S. 14-27.4(a)(1) and indecent liberties with a minor under G.S. 14-202.1 are not aggravated offenses as defined by G.S. 14-208.6(1a) requiring lifetime satellite-based monitoring.
In a case involving charges arising out of a drug store break-in in which controlled substances were stolen, the trial court did not abuse its discretion by admitting 404(b) testimony from an accomplice that a few days before the break-in at issue, the same perpetrators broke into a different...
In a case in which the defendant was charged with, among other things, armed robbery and possession of a stolen handgun, no plain error occurred when the trial court admitted, under Rule 803(6) (records of regularly conducted activity) testimony that the National Crime Information Center ("NCIC...
The trial court did not abuse its discretion by denying the defendant’s mistrial motion. During a recess at trial, a juror was approached by a man who said, “Just quit, and I’ll let you go home.” Upon return to the courtroom, the trial court inquired and determined that six jurors witnessed the...
In a case arising from a pharmacy break-in, the court rejected the defendant’s argument that the trial court erred by failing to dismiss trafficking in opium charges because the State did not present a chemical analysis of the pills. Citing State v. Ward, 364 N.C. 133 (2010), and ...
Remanding for other reasons, the court admonished the trial court to carefully determine the materiality of each purpose for which 404(b) evidence is offered. The trial court had remarked that the incidents could show motive, identity, and common plan or scheme. The court noted: “...
The trial court did not commit plain error by peremptorily instructing the jury that multiple gunshot wounds to the upper body would constitute serious injury. The victim required emergency surgery, was left with scars on his chest, shoulder, back and neck, and a bullet remained in his neck,...
(1) The trial court properly denied the defendant’s motion to suppress asserting that an eyewitness’s pretrial identification was unduly suggestive. The eyewitness had the opportunity to view the defendant at close range for an extended period of time and was focused on and paying attention to...
The trial court did not err by denying the defendant’s post-sentencing motion to withdraw a plea without an evidentiary hearing. The defendant’s motion was a motion for appropriate relief. Evidentiary hearings are required on such motions only to resolve issues of fact. In this case, no issue of...
The evidence was sufficient to establish an intent to cause bodily harm or terrorize where the facts showed that after severely beating the victim, the defendants first attempted to stuff him into a garbage can and then threw him into a 10 or 12-foot-deep ditch filled with rocks and water; one...
The trial court committed plain error by ordering the defendant to pay restitution when no evidence supported the amount ordered. The court noted that no objection is required to preserve for appellate review issues concerning restitution. It held that the prosecutor’s unsworn statements and the...
Although the court treated the defendant’s brief challenging his guilty plea as a writ of certiorari and addressed his contentions, it reviewed the law on the right to appeal after a plea, stating: A defendant who has entered a guilty plea is not entitled to appellate review as a matter of right...
The evidence was sufficient to establish an intent to cause bodily harm or terrorize where the facts showed that after severely beating the victim, the defendants first attempted to stuff him into a garbage can and then threw him into a 10 or 12-foot-deep ditch filled with rocks and water; one...
No Bruton issue occurred when the trial court admitted a co-defendant’s admission to police that “I only hit that man twice.” A co-defendant’s statement which does not mention or refer to the defendant does not implicate the Confrontation Clause or Bruton. Here, the co-...
The trial court erred by instructing the jury that it need only find that the restraint or removal aspect of the kidnapping “was a separate, complete act independent of and apart from the injury or terror to the victim.” As such, it did not distinguish between the restraint as a part of the...
The court rejected the defendant’s argument that his guilty plea was not knowing and voluntary because it was the result of unreasonable and excessive pressure by the State and the trial court. The defendant asserted that the trial court pressured him to accept the plea during a 15 minute recess...
The trial court did not err by denying the defendant’s motion to withdraw his guilty plea. When a defendant seeks to withdraw a guilty plea after being sentenced consistent with a plea agreement, the defendant is entitled to withdraw his plea only upon a showing of manifest injustice. Factors...
The trial court erred by finding that first-degree sexual offense with a child under 13 is an aggravated offense for purposes of ordering lifetime satellite-based monitoring (SBM). As the State conceded, when making the relevant determination, the trial court only is to consider the elements of...
The felon in possession statute does not authorize multiple convictions and sentences for possession of a firearm by a convicted felon predicated on evidence that the defendant simultaneously obtained and possessed one or more firearms, which he or she used during the commission of multiple...
Where the trial court determined that one aggravating factor (heinous, atrocious or cruel) outweighed multiple mitigating factors, it acted within its discretion in sentencing the defendant in the aggravated range.
The defendant was not entitled to a new trial on grounds that the SBI Crime Lab refused to test four hair and fiber lifts taken from an item of clothing. The defendant did not argue that the prosecutor failed to make the lifts available to him for testing. In fact, one of the defendant’s...
The trial court erred by granting the defendant’s motion to dismiss a charge of felon in possession of a firearm on grounds that the statute was unconstitutional as applied to him. The defendant’s motion was unverified, trial court heard no evidence, and there were no clear stipulations to the...
In a child sexual assault case, defense counsel’s failure to move to strike testimony of a forensic interviewer that the fact that a young child had extensive sexual knowledge suggested that “something happened,” did not constitute deficient performance.
(1) The evidence was sufficient to prove attempted kidnapping. To prove an overt act for that crime, the State need not prove that the defendant was in the presence of his intended victim. In this case, the defendant and his accomplices stole get-away cars and acquired cell phones, jump suits,...
(1) In an impaired driving case, the trial court did not abuse its discretion by allowing the State’s witness to testify as an expert in pharmacology and physiology. Based on his knowledge, skill, experience, training, and education, the witness was better informed than the jury about the...
The trial court erred by allowing the State to introduce three photographs, which were part of a surveillance video, when the photographs were not properly authenticated. However, given the evidence of guilt, no plain error occurred.
In a case in which there was a dissenting opinion, the court held that there was sufficient evidence that the defendant acted in concert with another to commit a robbery. The evidence showed that he was not present at the ATM where the money was taken, but was parked nearby in a getaway vehicle...
The evidence was insufficient to establish that a secret assault occurred. In the middle of the night, the victim heard a noise and looked up to see someone standing in the bedroom doorway. The victim jumped on the person and hit him with a chair. The victim was aware of the defendant’s presence...
Because the defendant had not been seized when he discarded a plastic baggie beside a public road, the baggie was abandoned property in which the defendant no longer retained a reasonable expectation of privacy. As such, no Fourth Amendment violation occurred when an officer obtained the baggie...
Even if a stop and arrest of the defendant by campus police officers while off campus violated G.S. 15A-402(f), the violation was not substantial. The stop and arrest were constitutional and the officers were acting within the scope of their mutual aid agreement with the relevant municipality....
Any error in connection with the admission of statements elicited from a witness on cross-examination was invited. The defendant, having invited error, waived all right to appellate review, including plain error review.
In an armed robbery case, a store clerk’s testimony that he thought the defendant had a gun was not inadmissible speculation or conjecture. Based on his observations, the clerk believed that the defendant had a gun because the defendant was hiding his arm under his jacket. The clerk’s perception...
The trial court did not err by failing to instruct on the lesser-included offense of assault with a deadly weapon to the charge on assault with a deadly weapon inflicting serious injury. After a beating by the defendant, the victim received hospital treatment, had contusions and bruises on her...
In a murder case, the trial court did not commit plain error by failing to instruct the jury on the lesser-included offense of second-degree murder. For reasons discussed in the opinion, the evidence showed that the defendant acted with premeditation and deliberation.
A defendant may be sentenced as a habitual felon for an underlying felony of drug trafficking.
When the defendant failed to object to a question until after the witness responded, the objection was waived by the defendant’s failure to move to strike the answer.
An officer’s testimony as to a witness’ response when asked if she knew what had happened to the murder weapon was not hearsay. The statement was not offered for the truth of the matter asserted but rather to explain what actions the officer took next (contacting his supervisor and locating the...
Since the State failed to demonstrate the substantial similarity of out-of-state New York and Connecticut convictions to North Carolina crimes and the trial court failed to determine whether the out-of-state convictions were substantially similar to North Carolina offenses, a resentencing was...
In a second-degree murder case based on impaired driving, the trial court did not commit plain error under Rule 403 by admitting the results of a chemical analysis of the defendant’s blood. The defendant had argued that because the blood sample was taken approximately three hours after the...
Because the witness admitted having made a prior statement to the police, it was not error to allow the State to impeach her with the prior inconsistent statement when she claimed not to remember what she had said and the trial court gave a limiting instruction. The court distinguished the case...
Statements offered to explain a witness’s subsequent actions were not offered for the truth of the matter asserted and not hearsay.
The trial court did not improperly limit the defendant’s voir dire questioning with respect to assessing the credibility of witnesses and the jurors’ ability to follow the law on reasonable doubt. Because the trial judge properly sustained the State’s objections to the defendant’s questions, no...
The evidence was sufficient to warrant an instruction on flight. During the first robbery attempt, the defendant and a co-conspirator fled from a deputy sheriff. During the second attempt, the defendant fled from an armed neighbor. After learning of the defendant’s name and address, an officer...
The trial court did not err by denying the defendant’s motion to dismiss charges of second-degree murder, felony serious injury by vehicle, and impaired driving. The evidence showed that the defendant was under the influence of an impairing substance at the time of the accident. A chemical...
In a case in which the defendant was sentenced as a Class C habitual felon, the court remanded for correction of a clerical error regarding the felony class of the underlying felony.
No Blakely error occurred in the defendant’s sentence for impaired driving. The trial court found two aggravating factors, two factors in mitigation, and imposed a level four punishment. The level four punishment was tantamount to a sentence within the presumptive range, so that the...
A witness’s written statement, admitted to corroborate his trial testimony, was not hearsay. The statement was generally consistent with the witness’s trial testimony. Any points of difference were slight, only affecting credibility, or were permissible because they added new or additional...
A witness’s written statement, admitted to corroborate his trial testimony, was not hearsay. The statement was generally consistent with the witness’s trial testimony. Any points of difference were slight, only affecting credibility, or permissible because they added new or additional...
The court rejected the defendant’s argument that plain error occurred when the prosecutor misrepresented the results of the SBI Crime Lab phenolphthalein blood tests. At trial, a SBI agent explained that a positive test result would provide an indication that blood could be present. On cross-...
Although Rule 704 allows admission of lay opinion evidence on ultimate issues, the lay opinion offered was inadmissible under Rule 701 because it was not helpful to the jury. In this case, a detective was asked: After you received this information from the hospital, what were your next steps?...
(1) The evidence was insufficient to support two charges of conspiracy to commit armed robbery. Having failed to achieve the objective of the conspiracy on their first attempt, the defendant and his co-conspirators returned the next day to try again. When the State charges separate conspiracies...
There was sufficient evidence that the defendant constructively possessed the firearm. The defendant was identified as having broken into a house from which a gun was stolen. The gun was found in a clothes hamper at the home of the defendant’s ex-girlfriend’s mother. The defendant had arrived at...
Citing California v. Hodari D, 499 U.S. 621 (1991), the court held that the defendant was not seized when he dropped a plastic baggie containing controlled substances. An officer was patrolling at night in an area where illegal drugs were often sold, used, and maintained. When the...
An indictment for felonious larceny that failed to allege ownership in the stolen handgun was fatally defective.
The trial court’s denial of a motion to continue in a murder case did not violate the defendant’s right to due process and effective assistance of counsel. The defendant asserted that he did not realize that certain items of physical evidence were shell casings found in defendant’s room until...
The trial court erred by granting the defendant’s motion to dismiss an indictment charging felon in possession of a firearm on grounds that the statute was unconstitutional as applied to him. The defendant’s motion was unverified, trial court heard no evidence, and there were no clear...
The trial court did not err when, after the defendant failed to appear during trial, he explained to the jury that the trial would proceed in the defendant’s absence. The trial judge instructed the jury that the defendant’s absence was of no concern with regard to its job of hearing the evidence...
The restitution order was not supported by evidence presented at trial or sentencing. The prosecutor’s unsworn statement regarding the amount of restitution was insufficient to support the order.
In an indecent liberties case, the trial judge’s jury instructions were supported by the indictment. The indictment tracked the statute and did not allege an evidentiary basis for the charge. The jury instructions, which identified the defendant’s conduct as placing his penis between the child’s...
The evidence was sufficient to establish that the defendant perpetrated the murder. The defendant was jealous of the victim and made numerous threats toward him; four spent casings found in his bedroom were fired from the murder weapon; on the day of the murder, the victim got into a vehicle...
The trial court did not err by failing to instruct the jury on the lesser-included offense of assault with a deadly weapon inflicting serious injury to the charge of assault with a deadly weapon with intent to kill inflicting serious injury. The defendant broke into a trailer in the middle of...
The trial court did not abuse its discretion by denying the defendant’s motion to continue to test certain hair and fiber lifts from an item of clothing. The defendant had six months to prepare for trial and obtain independent testing, but waited until the day of trial to file his motion, in...
The trial court committed reversible error by ordering the defendant to pay restitution when the State presented no evidence to support the award. Although there was evidence that the victim’s home was damaged during the breaking and entering, there was no evidence as to the cost of the damage...
The trial court’s denial of a motion to continue in a murder case did not violate the defendant’s right to effective assistance of counsel. The defendant asserted that he did not realize that certain items of physical evidence were shell casings found in defendant’s room until the eve of trial...
The trial court erred by allowing the State to introduce three photographs, which were part of a surveillance video, when the photographs were not properly authenticated. However, given the evidence of guilt, no plain error occurred.
The State presented sufficient evidence that the defendant perpetrated a breaking and entering. The resident saw the defendant break into her home, the getaway vehicle was registered to the defendant, the resident knew the defendant from prior interactions, a gun was taken from the home, and the...
The trial court did not abuse its discretion in determining that a four-year-old child sexual assault victim was competent to testify. The child was 2½ years old at the time the incident occurred. At trial, the child was non-responsive to some questions and gave contradictory responses to others...
The evidence was sufficient to establish that the defendant took money from a store clerk by means of violence or fear. The defendant hid his arm underneath his jacket in a manner suggesting that he had a gun; the clerk knew the defendant was “serious” because his eyes were “evil looking”; and...
The trial court did not abuse its discretion by refusing the defendant’s request for a mitigated sentence despite uncontroverted evidence of mitigating circumstances. The defendant offered uncontroverted evidence of mitigating factors and the trial court considered this evidence during the...
In a first-degree murder case, there was sufficient evidence of premeditation, deliberation, and intent to kill. After the defendant and an accomplice beat and kicked the victim, they hog-tied him so severely that his spine was fractured, and put tissue in his mouth. Due to the severe arching of...
The trial judge’s comments about the judgment and conviction form did not suggest that it incorrectly thought that it could not impose a sentence in the presumptive range when aggravating and mitigating factors were in equipoise.
The court rejected the juvenile’s argument that the evidence was insufficient to establish indecent liberties in that it failed to show that he acted with a purpose to arouse or gratify his sexual desires. The facts showed that: the juvenile was thirteen and the victim was ten years younger; the...
An expert in forensic chemistry properly made an in-court visual identification of marijuana. Citing State v. Fletcher, 92 N.C. App. 50, 57 (1988), but not mentioning State v. Ward, 364 N.C. 133 (June 17, 2010), the court noted that it had previously held that a police...
The trial court did not abuse its discretion under Rule 403 by admitting a recording of phone calls between the defendant and other persons that were entirely in Spanish. The defendant argued that because there was one Spanish-speaking juror, the jurors should have been required to consider only...
Stating in dicta that an indictment alleging obtaining property by false pretenses need not identify a specific victim.
(1) The evidence was sufficient to establish that the defendant confined and restrained Victims Alvarez and Cortes for the purpose of terrorizing them and doing them serious bodily harm. The evidence was sufficient to establish a purpose of terrorizing Alvarez when the defendant beat and kicked...
In a kidnapping, sexual assault, and murder case, the trial court did not err by instructing the jury on flight. The defendant and an accomplice left the victims bound, placed a two-by-four across the inside of the apartment door, hindering access from the outside, and exited through a window....
Trial judge’s failure to mark the appropriate box in the judgment indicating that the sentence was in the presumptive range was a clerical error.
There was sufficient evidence of obtaining property by false pretenses when the defendant received money for rental of a house that the defendant did not own or have the right to rent.
(1) The evidence was sufficient to establish that the defendant confined and restrained Victims Alvarez and Cortes for the purpose of terrorizing them and doing them serious bodily harm. The evidence was sufficient to establish a purpose of terrorizing Alvarez when the defendant beat and kicked...
A person who is killed in the course of a kidnapping is not left in a safe place. Alternatively, if the victim still was alive when left by the defendant and his accomplice, he was not left in a safe place given that he was bound so tightly that he suffered a fracture to his spine and ultimately...
There was no fatal variance between a juvenile delinquency petition for indecent liberties alleging an offense date of November 14, 2008, and the evidence which showed an offense date of November 7-9, 2008. The juvenile failed to show that his ability to present an adequate defense was...
Theories included in the trial judge’s jury instructions were supported by the indictment. The indictment charged the defendant with maintaining a dwelling “for keeping and selling a controlled substance.” The trial court instructed the jury on maintaining a dwelling “for keeping or...
(1) The trial court did not err by failing to instruct the jury about the defendant’s absence from the habitual felon phase of the trial. Because the trial court did not order the defendant removed from the courtroom, G.S. 15A-1032 did not apply. Rather, the defendant asked to be removed. (2)...
The evidence was insufficient to sustain an adjudication of delinquency based on a violation of G.S. 14-27.5 (second-degree sexual offense). On appeal, the State conceded that there was no evidence that the victim was mentally disabled, mentally incapacitated, or physically helpless.
The trial court did not commit plain error by instructing the jury that it could consider whether or not the use of a bottle constituted a deadly weapon during the commission of a sexual offense. The defendant and his accomplice, after tying the victim’s hands and feet, shoved a rag into his...
Holding, in a drug case, that although the trial court erred by allowing the State’s expert witness to testify as to the identity and weight of the “leafy green plant substance” where the expert’s testimony was based on analysis performed by a non-testifying forensic analyst, the error was not...
The trial court did not err by denying the defendant’s motion to suppress asserting that his interrogation was not electronically recorded in compliance with G.S. 15A-211. The statute applies to interrogations occurring on or after March 1, 2008; the interrogation at issue occurred more than one...
In a robbery case, the trial court did not err by denying the defendant’s motion to dismiss where there was substantial evidence that the defendant was the perpetrator. The victim, who knew the defendant well, identified the defendant’s voice as that of his assailant; identified his assailant as...
(1) The defendant’s claim that trial counsel was ineffective by failing to object to a videotape of the defendant’s interrogation fails because even if counsel had objected, the objection would have been overruled when the defendant opened the door to the evidence through his own trial testimony...
The defendant’s claim that trial counsel was ineffective by failing to object to a videotape of the defendant’s interrogation was properly considered on appeal. Although the defendant asked the court to dismiss his claim without prejudice to raise it in a motion for appropriate relief, he failed...
Because the defendant was sentenced in the presumptive range, he was not entitled to an appeal as a matter of right on the issue whether his sentence was supported by the evidence. Furthermore, the defendant did not petition for review by way of a writ of certiorari.
By objecting only on the basis that the subject matter of questioning had been “covered” the previous day, the defense failed to preserve other grounds for exclusion of the evidence and plain error review applied.
In a conspiracy to commit robbery case, the evidence was sufficient to establish a mutual, implied understanding between the defendant and another man to rob the victim. The other man drove the defendant to intercept the victim; the defendant wore a ski mask and had a gun; after the defendant...
The trial court did not err by denying the defendant’s motion to suppress statements made during a police interrogation where no violation of G.S. 7B-2101 occurred. The defendant, a 17-year-old juvenile, was already in custody on unrelated charges at the time he was brought to an interview room...
No violation of the defendant’s sixth amendment right to counsel occurred when detectives interviewed him on new charges when he was in custody on other unrelated charges. The sixth amendment right to counsel is offense specific and had not attached for the new crimes.
(1) The district court lacked subject matter jurisdiction to order the defendant to enroll in satellite-based monitoring (SBM) after a district court conviction for misdemeanor attempted sexual battery. G.S. 14-208.40B(b) requires that SBM hearings be held in superior court for the county in...
Although some portion of a videotape of the defendant’s interrogation was inadmissible, the defendant opened the door to the evidence by, among other things, referencing the content of the interview in his own testimony.
In a felony death by vehicle case, the trial court did not abuse its discretion by sustaining the State’s objection when defense counsel asked the defendant whether he would have been able to stop the vehicle if it had working brakes. Because a lay opinion must be rationally based on the...
An officer lacked reasonable suspicion to stop the defendant’s vehicle. Around midnight, officers were conducting a traffic stop at Olde Waverly Place, a partially developed subdivision. While doing so, an officer noticed the defendant’s construction vehicle enter the subdivision and proceed to...
An obstruction of justice indictment properly charged a felony when it alleged that the act was done “with deceit and intent to interfere with justice.” G.S. 14-3(b) provides that a misdemeanor receives elevated punishment when done with “deceit and intent to defraud.” The language “deceit and...
The trial court did not violate G.S. 15A-1024 (withdrawal of guilty plea when sentence not in accord with plea arrangement) by sentencing the defendant in the presumptive range. Under G.S. 15A-1024, if the trial court decides to impose a sentence other than that provided in a plea agreement, the...
Because no evidence was presented in support of restitution and the defendant did not stipulate to the amount, the trial court erred by ordering restitution. During sentencing, the prosecutor presented a restitution worksheet requesting restitution for the victim to compensate for stolen items....
Although the trial court incorrectly determined that the defendant had a total of 8 prior record level points rather than six, the error was harmless. The defendant was assigned to prior record level III, which requires 5-8 points. A correct calculation of defendant’s points would have placed...
A defendant may challenge the sufficiency of an indictment even after pleading guilty to the charge at issue.
The trial court did not err by allowing the State’s expert in forensic computer examination to testify that individuals normally try to hide proof of their criminal activity, do not normally save incriminating computer conversations, the defendant would have had time to dispose of incriminating...
The trial court did not err by allowing the State’s expert in family medicine to testify that if there had been a tear in the victim’s hymen, it probably would have healed by the time the expert saw the victim. The testimony explained that the lack of physical findings indicative of sexual abuse...
Officers had reasonable suspicion to stop a vehicle in which the defendant was a passenger based on the officers’ good faith belief that the driver had a revoked license and information about the defendant’s drug sales provided by three informants. Two of the informants were confidential...
Listing the victim on the restitution worksheet as an “aggrieved party” was a clerical error.
Probable cause and exigent circumstances supported an officer’s warrantless search of the defendant’s mouth by grabbing him around the throat, pushing him onto the hood of a vehicle, and demanding that he spit out whatever he was trying to swallow. Probable cause to believe that the defendant...
Officers had reasonable suspicion to stop a vehicle in which the defendant was a passenger based on the officers’ good faith belief that the driver had a revoked license and information about the defendant’s drug sales provided by three informants. Two of the informants were confidential...
Probable cause and exigent circumstances supported an officer’s warrantless search of the defendant’s mouth by grabbing him around the throat, pushing him onto the hood of a vehicle, and demanding that he spit out whatever he was trying to swallow. Probable cause to believe that the defendant...
(1) The State presented sufficient evidence of accessory after the fact to a second-degree murder perpetrated by Stevons. After Stevons shot the victim, the defendant drove Stevons away from the scene. The victim later died. The court rejected the defendant’s argument that because he gave aid...
For purposes of double jeopardy, a second-degree murder conviction based on unlawful distribution of and ingestion of a controlled substance was not the same offense as sale or delivery of a controlled substance to a juvenile or possession with intent to sell or deliver a controlled substance....
The defendant was improperly sentenced in the aggravated range when the State did not provide proper notice of its intent to present evidence of aggravating factors as required by G.S. 15A-1340.16(a6). The court rejected the State’s argument that a letter regarding plea negotiations sent by the...
In a criminal case, entry of judgment occurs when a judge announces the ruling in open court or signs the judgment containing the ruling and files it with the clerk. A trial judge is not required to announce all of the findings and details of its judgment in open court, provided they are...
The trial court did not err by instructing the jury that in order to constitute an aggravating factor elevating speeding to elude arrest to a felony, driving while license revoked could occur in a public vehicular area. Although the offense of driving while license revoked under G.S. 20-28...
There was sufficient evidence to survive a motion to dismiss in a case in which the defendant was charged with second-degree murder under G.S. 14-17 for having a proximately caused a murder by the unlawful distribution and ingestion of Oxymorphone. There was sufficient evidence of malice where...
Upon being notified that the jury was deadlocked, the trial judge did not err by giving an Allen instruction pursuant to N.C. Crim. Pattern Jury Instruction 101.40 and not G.S. 15A-1235, as requested by the defendant. Because there was no discrepancy between the pattern instruction and...
The defendant failed to demonstrate grounds for recusal. The defendant argued that recusal was warranted based on the trial judge’s comments at various hearings and on the fact that “the trial court was often dismissive of defense counsel’s efforts and made a number of rulings unfavorable to the...
The trial court did not abuse its discretion under Rule 403 by admitting, for purposes of corroboration, a testifying witness’s prior consistent statement. The court noted that although the statement was prejudicial to the defendant’s case, mere prejudice is not the determining factor under Rule...
There was sufficient evidence to survive a motion to dismiss in a case in which the defendant was charged with second-degree murder under G.S. 14-17 for having a proximately caused a murder by the unlawful distribution and ingestion of Oxymorphone. There was sufficient evidence that the...
In a case involving assault on a firefighter with a firearm, there was sufficient evidence that the defendant committed an assault. To constitute an assault, it is not necessary that the victim be placed in fear; it is enough if the act was sufficientto put a person of reasonable firmness in...
No plain error occurred when a detective testified that after his evaluation of the scene, he determined that the case involved a robbery and resulting homicide. The court rejected the defendant’s argument that the trial court improperly allowed the detective to give a legal opinion, concluding...
For purposes of double jeopardy, a second-degree murder conviction based on unlawful distribution of and ingestion of a controlled substance was not the same offense as sale or delivery of a controlled substance to a juvenile or possession with intent to sell or deliver a controlled substance....
The prosecutor’s statements during closing argument were not so grossly improper as to require the trial court to intervene ex mero motu. Although disapproving a prosecutor’s comparisons between criminal defendants and animals, the court concluded that the prosecutor’s statements equating the...
The trial court committed a clerical error when, in a written order revoking probation, it found that the conditions violated and the facts of each violation were set forth in a violation report dated October 20, 2008, which was the date of a probation violation hearing, not a violation report...
An indictment charging accessory after the fact to first-degree murder was sufficient to support a conviction of accessory after the fact to second-degree murder. The indictment alleged that a felony was committed, that the defendant knew that the person he assisted committed that felony, and...
(1) The trial court improperly ordered a forfeiture of the defendant’s licensing privileges without making a finding of fact required by G.S. 15A-1331A that the defendant failed to make reasonable efforts to comply with the conditions of her probation. The court noted that form AOC-CR-317 does...
For purposes of double jeopardy, a second-degree murder conviction based on unlawful distribution of and ingestion of a controlled substance was not the same offense as sale or delivery of a controlled substance to a juvenile or possession with intent to sell or deliver a controlled substance....
In an assault on a firefighter with a firearm case, the trial court did not err by denying the defendant's request for a jury instruction on the elements of assault where the defendant failed to submit his requested instruction in writing.
Any alleged violation of the New Jersey constitution in connection with a stop in that state leading to charges in North Carolina, provided no basis for the suppression of evidence in a North Carolina court.
There was sufficient evidence that the defendant perpetrated a murder when, among other things, cuts on the defendant’s hands were visible more than 10 days after the murder; neither the defendant’s nor the victim’s DNA could be excluded from a DNA sample from the scene; DNA from blood stains on...
Citing Whren v. United States, 517 U.S. 806, 813 (1996), the court rejected the defendant’s argument that a stop for an alleged violation of G.S. 20-129(d) (motor vehicle’s rear plate must be lit so that it can be read from a distance of 50 feet) was pretextual. Under Whren, ...
The evidence was insufficient to establish that the defendant intended to commit a larceny in the vehicle. The evidence suggested that the defendant’s only intent was to show another how to break glass using a spark plug and that the two left without taking anything once the vehicle’s glass was...
The trial court properly denied a motion to suppress asserting that a vehicle stop was improperly prolonged. An officer stopped the truck after observing it follow too closely and make erratic lane changes. The occupants were detained until a Spanish language consent to search form could be...
There was sufficient evidence of malice in a first-degree murder case. The intentional use of a deadly weapon which proximately results in death gives rise to the presumption of malice. Here, the victim was stabbed in the torso with a golf club shaft, which entered the body from the back near...
The trial court erred by denying the defendant’s motion to dismiss a charge of possession with intent to sell or deliver. Evidence that an officer found 1.89 grams of marijuana on the defendant separated into three smaller packages, worth about $30, and that the defendant was carrying $1,264.00...
The trial court did not abuse its discretion under Rule 403 by admitting the defendant’s statement to an arresting officer that if the officer had come later the defendant “would have been gone and you would have never saw me again.”
The evidence was sufficient to support the aggravating factor that the offense committed was especially heinous, atrocious, or cruel. The defendant assaulted his 72-year-old grandmother, stabbing her, striking her in the head, strangling her, and impaling her with a golf club shaft eight inches...
(1) An indictment for breaking or entering a motor vehicle alleging that the vehicle was the personal property of “D.L. Peterson Trust” was not defective for failing to allege that the victim was a legal entity capable of owning property. The indictment alleged ownership in a trust, a legal...
(1) The trial court abused its discretion by revoking the defendant’s probation when the State failed to present evidence that he violated the condition of probation that he “not reside in a household with a minor child.” Although the trial court interpreted the term “reside” to mean that the...
As a passenger in a vehicle that was stopped, the defendant had standing to challenge the stop.
(1) In an appeal of a driver’s license revocation under G.S. 20-16.2(e), the court declined to consider the defendant’s argument that the officer lacked reasonable and articulable suspicion to stop his vehicle. Reasonable and articulable suspicion for the stop is not relevant to determinations...
The trial court properly denied the defendant’s motion to suppress when officers had reasonable suspicion to believe that the defendant committed a traffic violation supporting the traffic stop. The stop was premised on the defendant’s alleged violation of G.S. 20-129(d), requiring that a motor...
The court rejected the defendant’s argument that a search warrant executed at a residence was invalid because the application and warrant referenced an incorrect street address. Although the numerical portion of the street address was incorrect, the warrant was sufficient because it contained a...
A victim’s statement to his mother, made in the emergency room approximately 50 minutes after a shooting and identifying the defendant as the shooter, was a present sense impression under Rule 803(1). The time period between the shooting and the statement was sufficiently brief. The court noted...
The trial court erred by suppressing evidence obtained pursuant to a search incident to arrest. After stopping the defendant’s vehicle, an officer decided not to charge him with impaired driving but to allow the defendant to have someone pick him up. The defendant consented to the officer to...
The exclusionary rule does not apply in a civil license revocation proceeding.
A victim’s statement to his mother, made in the emergency room approximately 50 minutes after a shooting and identifying the defendant as the shooter, was a present sense impression under Rule 803(1). The time period between the shooting and the statement was sufficiently brief. The court noted...
The prosecutor’s characterization of the defendant’s statements as lies, while “clearly improper,” did not require reversal. The court noted that the trial court’s admonition to the prosecutor not to so characterize the defendant’s statements neutralized the improper argument.
The defendant’s statement to an arresting officer that if the officer had come later the defendant “would have been gone and you would have never saw me again,” was relevant as an implicit admission of guilt.
The court rejected the defendant’s argument that because he was under the influence of cocaine he did not knowingly, intelligently, and understandingly waive his Miranda rights or make a statement to the police. Because the defendant was not under the influence of any impairing...
In a murder case involving a shooting, the trial court did not abuse its discretion by allowing a detective to give lay opinion testimony concerning the calibers of bullets recovered at the crime scene. The detective testified that as a result of officer training, he was able to recognize the...
The trial court erred by making a determination under G.S. 14-50.25 that the offenses involved criminal street gang activity outside of defendant’s presence and without giving him an opportunity to be heard; vacating and remanding for a new sentencing hearing. A finding of criminal street gang...
In a murder case involving a shooting, the trial court did not commit plain error by allowing a Special Agent with the State Bureau of Investigation to testify as an expert in the field of bullet identification, when his testimony was based on sufficiently reliable methods of proof in the area...
The trial court properly denied the defendant’s motion for judgment notwithstanding the verdict based on inconsistent verdicts. The jury found the defendant guilty of felonious larceny after a breaking or entering and of being a habitual felon but deadlocked on a breaking or entering charge....
Guilty verdicts of breaking or entering and discharging a firearm into occupied property were not mutually exclusive. The defendant argued that he could not both be in the building and shooting into the building at the same time. The court rejected this argument noting that the offenses occurred...
On the judicial findings and order for sex offender form, the trial court erroneously indicated that the defendant had been convicted of an offense against a minor under G.S. 14-208.6(1i) when in fact he was convicted of a sexually violent offense under G.S. 14-208.6(5). The court remanded for...
The trial court did not err by declining to instruct the jury on second-degree murder when no evidence negated the State’s evidence of first-degree murder. The defendant argued that the evidence showed that he killed the victim in a “frenzied, crack-fueled explosion” of a long-simmering “rage of...
In a child sexual offense case in which the indictment specified digital penetration and the evidence supported that allegation, the trial court was not required to instruct the jury that it only could find the defendant guilty if the State proved the specific sex act stated in the indictment....
The trial court erred when it allowed the State’s expert in clinical social work to testify that she had diagnosed the victim with sexual abuse when there was no physical evidence consistent with abuse. However, the error did not constitute plain error given other evidence in the case.
The trial court erred by denying the defendant’s motion to dismiss a charge of attempted armed robbery when there was no evidence that the defendant attempted to take the victim’s personal property. Because the defendant’s conviction for felony breaking or entering was based on an intent to...
(1) In a child sexual assault case, the trial court did not commit plain error by allowing a witness to testify about her step-granddaughter’s statements. The evidence was properly admitted for the non-hearsay purpose of explaining the witness’s subsequent conduct of relaying the information to...
Over a dissent, the court held that the trial court did not err by denying the defendant’s Knoll motion in an impaired driving case in which the defendant was detained for almost 24 hours. The court upheld the trial court’s finding that an individual who appeared to take responsibility...
In a murder case involving a shooting, the trial court did not abuse its discretion by allowing a detective to give lay opinion testimony concerning the calibers of bullets recovered at the crime scene. Although the testimony was prejudicial, the trial judge correctly ruled that its probative...
There was sufficient evidence of premeditation and deliberation when, after having a confrontation with an individual named Thomas, the defendant happened upon Thomas and without provocation began firing at him, resulting in the death of the victim, an innocent bystander. Citing the doctrine of...
The trial court erred by failing to make findings of fact and conclusions of law in connection with its denial of the defendant’s motion to suppress. When a trial court’s failure to make findings of fact and conclusions of law is assigned as error, the trial court’s ruling on a motion to...
The trial court did not err by denying the defendant’s motion to dismiss a charge of trafficking by sale or delivery in more than four grams and less than fourteen grams of Dihydrocodeinone when the State’s expert sufficiently identified the substance at issue as a controlled substance. Special...
An indictment properly alleges the fifth element of breaking and entering a motor vehicle—with intent to commit a felony or larceny therein—by alleging that the defendant intended to steal the same motor vehicle.
The trial court did not err by denying the defendant’s motion to dismiss a charge of conspiracy to discharge a firearm into occupied property. The defendant, Ray, Johnson, and Phelps left a high school basketball game because of the presence of rival gang members. As they left, the defendant...
Following State v. Phillips, 203 N.C. App. 326 (2010), the court held that first-degree sexual offense under G.S. 14-27.4(a)(1) (child victim under 13) is not an aggravated offense for purposes of SBM. To be an aggravated offense, the child must be less than 12 years old; “a child under...
The court treated as a clerical error the trial court’s mistake on the judgment designating an offense as Class G felony when it in fact was a Class H felony. The court remanded for correction of the clerical error.
(1) Although the State is not required to allege the felony or larceny intended in an indictment charging breaking or entering a vehicle, if it does so, it will be bound by that allegation. (2) An indictment properly alleges the fifth element of breaking and entering a motor vehicle—with intent...
The defendant could not complain of the victim’s hearsay statements related by an expert witness in the area of child mental health when the defendant elicited these statements on cross-examination.
In a case in which there was no admissible evidence as to the defendant’s blood alcohol level, the court found that the evidence was insufficient to show that the defendant drove while impaired, even though it showed that she had been drinking before driving. The accident at issue occurred when...
The trial court committed prejudicial error by admitting, under rule 404(b), the defendant’s prior impaired driving convictions to show malice for purposes of a second-degree murder charge. Three of the defendant’s four prior impaired driving convictions occurred eighteen or nineteen years prior...
The trial court committed reversible error by allowing the State’s expert to use “odor analysis” as a baseline for his opinion as to the defendant’s blood-alcohol level (BAC) at the time of the accident, formed using retrograde extrapolation. When the defendant reported to the police department...
The trial court did not violate G.S. 15A-1340.16(d) (evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation) by submitting, in connection with assault with a deadly weapon charges, the aggravating factor that the defendant “knowingly created a...
Evidence of the words and actions of the defendant and others, when viewed collectively, provided sufficient evidence of an implied agreement to assault the victim. The court noted that the spontaneity of the plan did not defeat the conspiracy and that a meeting of the minds can occur when a...
A defendant may not be convicted of both felony larceny and felonious possession of the same goods.
In a case involving felonious breaking or entering, larceny, and possession of stolen goods, there was sufficient evidence of possession. The defendant’s truck was parked at the residence with its engine running; items found in the truck included electronic equipment from the residence; a man...
The trial court did not abuse its discretion by denying a defense motion to dismiss a juror, made after the juror sent a letter to the trial judge requesting to see a DVD that had been played the previous day in court and stating that she thought the defendant’s accent was fabricated. Despite...
The State’s evidence regarding the defendant’s prior record level was insufficient. The State offered only an in-court statement by the prosecutor and the prior record level worksheet. The court rejected the State’s argument that the prior record level was agreed to by stipulation, noting that...
Citing Berghuis v. Thompkins, 560 U.S. 370 (2010), the court held that the defendant’s silence or refusal to answer the officers’ questions was not an invocation of the right to remain silent.
In a case involving felonious breaking or entering, larceny, and possession of stolen goods, the State presented sufficient evidence identifying the defendant as the perpetrator. The evidence showed that although the defendant did not know the victim, she found his truck in her driveway with the...
Provided the underlying charges that form the basis for an order for arrest (OFA) for failure to appear remain unresolved at the time the OFA is executed, the OFA is not invalid and an arrest made pursuant to it is not unconstitutional merely because a clerk or judicial official failed to recall...
A defendant may not be convicted of both felony larceny and felonious possession of the same goods.
The court lacked jurisdiction to consider an appeal when the defendant failed to timely challenge an order revoking his probation. If a trial judge determines that a defendant has willfully violated probation, activates the defendant’s suspended sentence, and then stays execution of his or her...
The defendant voluntarily consented to allow officers to take a saliva sample for DNA testing. The defendant was told that the sample could be used to exonerate him in ongoing investigations of break-ins and assaults on women that occurred in Charlotte in 1998. The defendant argued that because...
The trial court properly suppressed the defendant’s confession on grounds that it was involuntary. Although the defendant received Miranda warnings, interviewing officers, during a custodial interrogation, suggested that the defendant was involved in an ongoing murder investigation,...
The trial court did not abuse its discretion by declining to further stay another judge’s order finding a probation violation for failure to pay restitution and activating the sentence but staying execution of the order when the defendant presented no evidence of an inability to pay.
The defendant’s plea to habitual felon was valid based on the totality of the circumstances. Although the trial court informed the defendant that the plea would elevate punishment for the underlying offenses from Class H to Class C, it did not inform the defendant of the minimum and maximum...
The trial court did not err by admitting a witness’s out of court statements. When a State’s witness gave trial testimony inconsistent with his prior statements to the police, the State cross-examined him regarding his prior statements. After the witness denied making the statements, the trial...
In a child sexual assault case, the court held that even assuming that the State’s medical expert’s testimony regarding “secondary gain” improperly vouched for the victim’s credibility, the error did not rise to the level of plain error.
There was sufficient evidence of acting in concert with respect to a murder and felony assault, notwithstanding the defendant’s exculpatory statement that he “got caught in the middle” of the events in question. Other evidence permitted a reasonable inference that the defendant and an accomplice...
In the habitual felon phase of the defendant’s trial, questions and answers contained in the Transcript of Plea form for the predicate felony pertaining to whether, at the time of the plea, the defendant was under the influence of alcohol or drugs and his use of such substances were irrelevant....
The trial court did not abuse its discretion by failing to give an Allen instruction after the jury reported for the third time that it was deadlocked when the trial judge had given such an instruction 45 minutes earlier.