Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
Table of Contents
Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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In 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.
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...
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...
The bailiff’s delivery of an exhibit to the jury, with an instruction from the trial judge that it would need to be returned to the trial court did not prejudice the defendant, even though the trial court violated G.S. 15A-1233(a) by failing to bring the jury into the courtroom when the jury’s...
(1) The Eyewitness Identification Reform Act, G.S. 15A-284.52, does not apply to show ups. (2) Although a show up procedure was unduly suggestive, there was no substantial likelihood of irreparable misidentification and thus the trial judge did not err by denying a motion to suppress the victim’...
The trial court’s entry into the jury room during deliberations to determine the jury’s progress was not subject to plain error review. However, the court admonished the trial court that it should refrain from such conduct “to avoid the possibility of improperly influencing the jury and to avoid...
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...
The trial court did not abuse its discretion by failing to conduct an inquiry into allegations of jury misconduct or by denying the defendant’s motion for a new trial. The day after the verdict was delivered in the defendant’s sexual battery trial and at the sentencing hearing, defense counsel...
The marital privilege did not apply when the parties did not have a reasonable expectation of privacy of their conversation, which occurred after they were arrested and in an interview room at the sheriff’s department. Warning signs indicated that the premises were under audio and visual...
In a drug case, officers properly knocked and announced their presence when executing a search warrant. The court rejected the defendant’s argument that the period of time between the knock and announcement and the entry into the house was too short. It concluded that because the search warrant...
The trial court did not err by allowing the Chief Medical Examiner to testify regarding an autopsy of a murder victim when the Medical Examiner was one of three individuals who participated in the actual autopsy. The Medical Examiner testified to his own observations, provided information...
Applying the corpus delicti rule (State may not rely solely on the extrajudicial confession of a defendant, but must produce substantial independent corroborative evidence) the court held that the State produced substantial independent corroborative evidence to show that a robbery and rape...
The trial court did not abuse its discretion by denying the defendant’s motion to sequester the State’s witnesses. In support of sequestration, defense counsel argued that there were a number of witnesses and that they might have forgotten about the incident. The court noted that neither of...
The court rejected the defendant’s argument that the trial court took into account a non-statutory aggravating factor neither stipulated to nor found by the jury beyond a reasonable doubt. The defendant’s argument was based on the trial court’s comments that (1) the defendant could have been...
(1) The defendant’s statement that he formed the intent to kill the victim and contemplated whether he would be caught before he began the attack was sufficient evidence that he formed the intent to kill in a cool state of blood for purposes of a first-degree murder charge. (2) The court...
In a sexual battery case, the evidence was sufficient to establish that the defendant grabbed the victim’s crotch for the purpose of sexual arousal, sexual gratification, or sexual abuse. The defendant previously had asked the victim for her phone number and for a date, and had brushed against...
There was sufficient evidence that the theft and the use of force were part of one continuous transaction when the defendant formed an intent to rob the victim, attacked her, and then took her money. The court rejected the defendant’s argument that his rape of the victim constituted a break in...
The evidence was sufficient to establish that the defendant intended to commit a felony assault inside the dwelling. Upon entering the residence, carrying an axe, the defendant asked where the victim was and upon locating her, assaulted her with the axe.
The court rejected the defendant’s argument that to convict of burglary by acting in concert the State was required to show that the defendant had the specific intent that one of her accomplices would assault the victim with deadly weapon. The State’s evidence, showing that the defendant...
A burglary indictment does not need to identify the felony that the defendant intended to commit inside the dwelling.
There was sufficient evidence of constructive possession of drugs found in a house. The defendant lived at and owned a possessory interest in the house; he shared the master bedroom where the majority of the marijuana and drug paraphernalia were found; he was in the living space adjoining the...
In a murder case, the trial court did not err by declining to instruct on self-defense where there was no evidence that would support a finding that the defendant reasonably believed that he needed to use deadly force against the victim to prevent death or serious bodily injury. Although the...
The defendant did not receive adequate notice of the basis for the Department of Correction’s preliminary determination that he should be required to enroll in SBM under the version of G.S. 14-208.40B(b) applicable to the defendant’s case. Specifically the notice failed to specify the category...
The court ordered a new trial in a drug case in which the trial court admitted laboratory reports regarding the identity, nature, and quantity of the controlled substances where the State had not complied with the notice and demand provisions in G.S. 90-95(g) and (g1). Instead of sending notice...
When the trial court intended to check one box on AOC-CR-615 (judicial findings and order for sex offenders) but another box was marked on the form signed by the judge, this was a clerical error that could be corrected on remand.
The trial court erred in requiring lifetime SBM under G.S. 14-208.40(a)(2); that provision subjects a person to SBM for a term of years.
Although the victim’s testimony tended to show that the crime did not occur at nighttime, there was sufficient evidence of this element where the victim called 911 at 5:42 am; she told police the attack occurred between 5:00 and 5:30 am; a crime scene technician testified that “it was still...
The defendant opened the door to the State’s cross-examination of a defense expert regarding prior offenses. On direct examination, the defendant’s psychiatric expert reviewed the defendant’s history of mental illness, including mention of his time in prison in 1996 for robbery. Defense counsel...
G.S. 14-208.40B (procedure for determining SBM eligibility when eligibility was not determined when judgment was imposed) applies to SBM proceedings initiated after December 1, 2007, even if those proceedings involve offenders who had been sentenced or had committed the offenses that resulted in...
Assuming without deciding that an elements-based approach should be used when determining eligibility for SBM under G.S. 14-208.40(a)(2), the trial court did not err by requiring the defendant, who had pleaded guilty to solicitation of indecent liberties, to enroll in SBM on the grounds that the...
The defendant’s motion to suppress his statement made during a police interview was untimely. The motion was not made until trial and there was no argument that the State failed to disclose evidence of the interview or statement in a timely manner.
The defendant was charged with offenses under the current (G.S. 14-112.2) and prior (G.S. 14-32.3) statutes proscribing the crime of exploitation of an elder adult. (1) There was sufficient evidence that the victim was an elder adult. The victim was either 99 or 109 years old and had not driven...
The trial court erred by denying the defendant’s motion to strike a response by the State’s expert witness in a child sexual abuse case. During cross-examination, defense counsel asked whether the victim told the expert that she had been penetrated. The expert responded: “She described the...
In a child sexual abuse case involving a female victim, the trial court did not err by allowing testimony from four individuals (three females and one male) that the defendant sexually abused them when they were children. The events occurred 14, 21, and 27 years prior to the abuse at issue....
There was sufficient evidence to support an instruction on flight. A masked man robbed a store and left in a light-colored sedan. Shortly thereafter, an officer saw a vehicle matching this description and a high speed chase ensued. The vehicle was owned by the defendant. The driver abandoned the...
In a child sexual abuse case, the trial court did not err by excluding spectators from the courtroom during the victim’s testimony. The court excluded all spectators except the victim’s mother and stepfather, investigators for each side, and a high school class. Because the defendant did not...
Where witness testimony indicated that the defendant used a gun in an armed robbery and there was no evidence that the gun was inoperable, the State was not required to affirmatively demonstrate operability and the trial court was not required to instruct on common law robbery.
In a prosecution under the prior version of the stalking statute, there was sufficient evidence to sustain a conviction. The court rejected the defendant’s argument that the evidence showed communications to persons other than the alleged victim on all but one occasion, concluding that all of...
In a sexual offense case, there was sufficient evidence that the victim, an adult with 58 I.Q., was mentally disabled and that the defendant knew or should reasonably have known this. (1) Because the parties agreed that the victim was capable of appraising the nature of his conduct and of...
The trial court did not commit plain error by instructing the jury that a defendant acting in self-defense is guilty of voluntary manslaughter if he was the aggressor, where there was sufficient evidence suggesting that the defendant was indeed the aggressor. Although the trial court erred by...
The evidence was sufficient to establish that the defendant violated G.S. 14-196(a)(3) by making harassing phone calls. The defendant repeatedly called the victim at work to annoy and harass him. It was not necessary for the State to show that defendant actually spoke with the victim.
In a child sexual abuse case, the trial court did not abuse its discretion by overruling a defense objection to a response by the State’s expert. On direct examination, the expert testified that the child’s physical examination revealed no signs of trauma to the hymen. On cross-examination, she...
The trial court did not abuse its discretion by finding an elderly victim to be competent. The witness correctly testified to his full name and birth date and where he lived. He was able to correctly identify family members, the defendant, and his own signature. He understood that he was at the...
The trial court did not err by denying the defendant’s motion to dismiss a charge of second-degree murder based on the defendant’s contention that he acted in self-defense where the evidence was sufficient to establish that rather than acting in self-defense, the defendant went armed after the...
In a possession of stolen property case, the trial court committed reversible error by instructing the jury on constructive possession. The property, a vehicle stolen from a gas station, was found parked on the street outside of the defendant’s residence. The defendant claimed that unknown to...
The evidence was insufficient to support a restitution award. The State conceded that it did not introduce evidence to support the restitution request. However, it argued that the defendant stipulated to the amount of restitution when she stipulated to the factual basis for the plea and that the...
An officer had reasonable suspicion to believe that the defendant was armed and dangerous justifying a pat-down frisk. Around midnight, the officer stopped the defendant’s vehicle after determining that the tag was registered to a different car; prior to the stop, the defendant and his passenger...
The trial court did not abuse its discretion by failing to find mitigating factors. As to acceptance of responsibility, the court found that although the defendant apologized for her actions, her statement did not lead to the “sole inference that [s]he accepted [and that] [s]he was answerable...
In a sexual exploitation of a minor and indecent liberties case, the court rejected the defendant’s argument that a testifying detective’s statement that the defendant’s explanation of the events was not consistent with photographic evidence constituted an improper opinion as to credibility of a...
In a homicide case in which the defendant asserted self-defense, the trial court did not abuse its discretion by admitting evidence that the defendant had been selling drugs in the vicinity of the shooting and was affiliated with a gang. The evidence showed that both the defendant and the victim...
The State properly impeached the defendant with prior inconsistent statements. In this murder case, the defendant claimed that the child victim drowned in a bathtub while the defendant met with a drug dealer. Although the defendant gave statements prior to trial, he never mentioned that meeting...
The trial court erred by denying the juvenile’s motion to dismiss a charge of crime against nature; as to a second charge alleging the same offense, defects in the transcript made appellate review impossible. The first count alleged that the juvenile licked the victim’s genital area. The...
The trial court erred by allowing the State to introduce evidence, during its case in chief, of the defendant's pre-arrest and post-arrest, pre-Miranda warnings silence. The only permissible purpose for such evidence is impeachment; since the defendant had not yet testified when the...
Because the State did not offer a portion of a co-defendant’s inadmissible hearsay statement into evidence, it did not open the door to admission of the statement. The only evidence in the State’s case pertaining to the statement was an officer’s testimony recounting the defendant’s response...
In a sexual exploitation of a minor and indecent liberties case, the trial court did not err by allowing lay opinion testimony regarding photographs of a five-year-old child that formed the basis for the charges. None of the witnesses perceived the behavior depicted; instead they formed opinions...
There was sufficient evidence of constructive possession to sustain a conviction for possession with the intent to sell and deliver marijuana. The drugs were found in a vehicle being transported by a car carrier driven by the defendant. The court determined that based on the defendant’s power...
In a sexual exploitation of a minor and indecent liberties case, the defendant opened the door to admission of hearsay statements by the child victim and her babysitter.
Because the defendant failed to object to the declaration of a mistrial in his noncapital case, he failed to preserve his double jeopardy claim.
The trial court did not improperly allow use of the defendant’s post-arrest silence when it allowed the State to impeach him with his failure to provide information about an alleged meeting with a drug dealer. In this murder case, the defendant claimed that the child victim drowned in a bathtub...
Even if the defendant’s confrontation clause rights were violated when the trial court allowed a substitute analyst to testify regarding DNA testing done by a non-testifying analyst, the error was harmless beyond a reasonable doubt.
The trial court did not abuse its discretion by sustaining the State’s objection to a defense proffer of a co-defendant’s hearsay statement indicating that he and the defendant acted in self-defense. The statement was not admissible under Rule 804(b)(3) (statement against interest exception). To...
The evidence was sufficient to sustain a stalking conviction where it showed that the defendant sent five facsimile messages to the victim’s workplace but the first four did not contain a direct threat. In this regard, the court noted, the case “diverges from those instances in which our courts...
The evidence was sufficient to support a conviction for maintaining a vehicle. Drugs were found in a vehicle being transported by a car carrier driven by the defendant. The evidence showed that the defendant kept or maintained the vehicle where the bill of lading showed that the defendant picked...
An officer had reasonable suspicion to stop the defendant’s vehicle after the officer observed the vehicle twice cross the center line of I-95 and pull back over the fog line.
The evidence was insufficient to sustain a conviction for first-degree sexual exploitation of a minor. The State’s evidence consisted of photographs of the five-year-old victim but did not depict any sexual activity. The court rejected the State’s arguments that a picture depicting the child...
In a murder case, the trial court did not err by denying the defendant’s request for an alibi instruction. The alibi defense rested on the defendant’s testimony that he did not injure the child victim and that he left the child unattended in a bathtub for an extended period of time while meeting...
There was sufficient evidence of malice in a second-degree murder case involving a vehicle accident. The defendant, whose license was revoked, drove extremely dangerously in order to evade arrest for breaking and entering and larceny. When an officer attempted to stop the defendant, he fled,...
The trial court did not abuse its discretion by sustaining the State’s objection to a defense proffer of a co-defendant’s hearsay statement indicating that he and the defendant acted in self-defense. The statement was not admissible under Rule 804(b)(3) (statement against interest exception). To...
The trial court did not err by denying the defendant’s motion to dismiss a charge of felony obstruction of justice. The State argued that the defendant knowingly filed with the State Board of Elections (Board) campaign finance reports with the intent of misleading the Board and the voting public...
The trial court did not abuse its discretion by concluding that an audio recording of a booking-area phone call was properly authenticated under Rule 901 as having been made by the defendant. The State’s authentication evidence showed: (1) the call was made to the same phone number as later...
The trial court did not err by overruling the defendant’s Batson objection to the State’s peremptory challenge of an African-American juror. The defendant, who is African-American, was tried for murder. In response to the defendant’s Batson objection, the prosecutor explained...
The trial court erred by applying G.S. 14-50.30 and expunging the defendant’s conviction for an offense occurring on February 6, 1995. At the time, the statute only applied to offenses occurring on or after December 1, 2008.
Because the trial court previously held a hearing pursuant to G.S. 14-208.40B (SBM determination after sentencing) and determined that the defendant was not required to enroll in SBM, the trial court lacked jurisdiction to later hold a second SBM hearing on the same reportable conviction. In...
There was sufficient evidence to support the defendant’s conviction of conspiracy to sell a counterfeit controlled substance. The court concluded that G.S. 90-87(6) (definition of counterfeit controlled substance) requires only that the substance be intentionally represented as a controlled...
Following McCravey, the court granted the State’s petition for writ of certiorari and remanded for entry of an order requiring lifetime SBM enrollment on the basis of the defendant’s second-degree rape conviction, which involved a mentally disabled victim. A concurring opinion agreed...
Following Kilby and Causby, the court held that the trial court erroneously determined that the defendant required the highest level of supervision and monitoring. The Static 99 concluded that the defendant posed a low risk of re-offending and no other evidence supported the...
A defendant may not be sentenced for both robbery and possession of stolen property taken during the robbery.
The trial court did not commit plain error by failing to exclude the defendant’s statements to investigating officers after his arrest. The defendant had argued that because of his limited command of English, the Miranda warnings were inadequate and he did not freely and voluntarily...
The trial court did not commit plain error by failing to exclude the defendant’s statements to investigating officers after his arrest. The defendant had argued that because of his limited command of English, the Miranda warnings were inadequate and he did not freely and voluntarily...
In an armed robbery case, evidence of the defendant’s involvement in another robbery was properly admitted under Rule 404(b). In both instances, the victims were robbed of their credit or debit cards by one or more handgun-wielding individuals with African accents, which were then used by the...
There was sufficient evidence of forgery under G.S. 14-119 when the evidence showed that the defendant signed a law enforcement officer’s name on five North Carolina Uniform Citations.
The inclusion of an incorrect file number on the caption of a transcript of plea was a clerical error that did not invalidate a plea to obtaining property by false pretenses where the plea was taken in compliance with G.S. 15A-1022 and the body of the form referenced the correct file number. The...
The trial court did not abuse its discretion by declining to provide the jury with a written copy of the jury instructions when asked to do so by the jury.
The trial court erred in its jury instructions for the crime of impersonating an officer under G.S. 14-277(b). The court noted that while G.S. 14-277(a) makes it a crime for an individual to make a false representation to another person that he is a sworn law enforcement officer, G.S. 14-277(b)...
The trial court did not err by denying the defendant’s motion to dismiss a charge of maintaining a vehicle where the evidence was sufficient to establish that the defendant had possession of cocaine in his mother’s vehicle over a duration of time and/or on more than one occasion.
Distinguishing State v. Fields, the court held that reasonable suspicion existed to support the stop. The defendant was not only weaving within his lane, but also was weaving across and outside the lanes of travel, and at one point ran off the road.
The court rejected the defendant’s claim that inadequacies with his trial interpreters violated his constitutional rights. The court held that because the defendant did not challenge the adequacy of the interpreters at trial, the issue was waived on appeal and that plain error review did not...
The court had jurisdiction to enter judgment on a PJC. The defendant was indicted on August 7, 2006, and entered a guilty plea on January 22, 2007, when a PJC was entered, from term to term. Judgment was entered on March 13, 2009. Because the defendant never requested sentencing, he consented to...
The trial court did not err by joining charges of impersonating a law enforcement officer and felony forgery that occurred in March 2006 with charges of impersonating a law enforcement officer that occurred in Apr. 2006. The offenses occurred approximately one month apart. Additionally, on both...
In an impaired driving case, the trial court did not abuse its discretion by allowing the State’s challenge for cause of a juror while denying a defense challenge for cause of another juror. The juror challenged by the State had a pending impaired driving case in the county and admitted to...
The trial court did not abuse its discretion by denying the defendant’s mistrial motion based on the prosecutor’s closing statement. During closing arguments in this murder case, defense counsel stated that “a murder occurred” at the scene in question. In his own closing, the prosecutor stated...
The inclusion of an incorrect file number on the caption of a transcript of plea was a clerical error where the plea was taken in compliance with G.S. 15A-1022 and the body of the form referenced the correct file number.
The trial court abused its discretion when it allowed the prosecutor, in closing argument and over the defendant’s objection, to compare the defendant’s impaired driving case to a previous impaired driving case litigated by the prosecutor. The prosecutor discussed the facts of the case,...
A conviction for abduction of a child under G.S. 14-41 triggers registration requirements if the offense is committed against a minor and the person committing the offense is not the minor’s parent. The court held that as used in G.S. 14-208.6(1i), the term parent includes only a biological or...
The trial court did not err by denying the defendant’s motion to suppress the results of the chemical analysis performed on the defendant’s breath with the Intoxilyzer 5000 on grounds that preventative maintenance was not performed on the machine at least every 4 months as required by the...
A warrantless search of the defendant’s car was valid on grounds of consent. The court rejected the defendant’s argument that his consent was invalid because the officer who procured it was not fluent in Spanish. The court noted that the defendant was non-responsive to initial questions posed in...
No error, much less plain error, occurred when the trial judge gave a self defense instruction based on NCPJI – Crim. 308.45. Although the court found the wording of the pattern instruction confusing as to burden of proof on self defense, it concluded that the trial court properly edited the...
The trial court did not abuse its discretion by denying the defendant’s motion to continue because of the State’s alleged discovery violation. Although the State provided the defendant with a copy the robbery victim’s pre-trial written statement and a composite sketch of the perpetrator based on...
The trial court did not err by denying the defendant’s motion to suppress where, although the defendant initially invoked his Miranda right to counsel during a custodial interrogation, he later reinitiated conversation with the officer. The defendant was not under the influence of...
Evidence of events leading up to the assault in question was relevant to complete the story of the crime.
There was no fatal variance between a forgery indictment and the evidence presented at trial. The indictment charged the defendant with forgery of “an order drawn on a government unit, STATE OF NORTH CAROLINA, which is described as follows: NORTH CAROLINA UNIFORM CITATION.” The evidence showed...
The trial court did not abuse its discretion by joining charges of felony assault with a deadly weapon and possession of stolen firearms. There was a sufficient transactional connection (a firearm that was the basis of the firearm charge was used in the assault) and joinder did not prejudicially...
The defendant’s waiver of Miranda rights was valid where Miranda warnings were given by an officer who was not fluent in Spanish. The officer communicated effectively with the defendant in Spanish, notwithstanding the lack of fluency. The defendant gave clear, logical, and...
A defendant may not be sentenced for both robbery and possession of stolen property taken during the robbery.
Exigent circumstances existed for an officer to make a warrantless entry into the defendant’s home to ascertain whether someone inside was in need of immediate assistance or under threat of serious injury. The officer was summoned after motorists discovered a young, naked, unattended toddler on...
The trial court did not commit plain error under Rules 401 or 403 by admitting photographs of the murder victim’s body. The trial court admitted 28 photographs and diagrams of the interior of the home where the victim was found, 12 of which depicted the victim’s body. The trial court also...
A juvenile’s statement, made while in custody, was the product interrogation and not a voluntary, spontaneous statement. The trial court thus erred by denying the juvenile’s motion to suppress the statement, since the juvenile had not advised her of her rights under Miranda and G.S. 7B-...
A juvenile petition sufficiently alleged that the juvenile was delinquent for possession of a weapon on school grounds in violation of G.S. 14-269.2(d). The petition alleged that the juvenile possessed an “other weapon,” specified as a “steel link from chain.” The evidence showed that the...
The evidence was sufficient to support the court’s adjudication of a juvenile as delinquent for possession of a weapon on school grounds in violation of G.S. 14-269.2(d). The evidence showed that while on school grounds the juvenile possessed a 3/8-inch thick steel bar forming a C-shaped “link”...
The trial judge committed prejudicial error with respect to its instruction on the intent element for the charges of assault with a deadly weapon, in a case in which a vehicle was the deadly weapon. In order for a jury to convict of assault with a deadly weapon, it must find that it was the...
The trial court erred by consolidating for judgment convictions for first-degree murder and robbery with a dangerous weapon where the jury did not specify whether it had found the defendant guilty of first-degree murder based on premeditation and deliberation or on felony-murder. In this...
In a case involving a charge of possession of implements of housebreaking, the trial court erred by instructing the jury that bolt cutters, vice grips, channel lock pliers, flashlights, screwdrivers, a hacksaw, and a ratchet and socket are implements of housebreaking. The instruction...
The trial court properly concluded that an officer had reasonable suspicion to believe that the defendant was committing a traffic violation when he saw the defendant driving on a public street while using his windshield wipers in inclement weather but not having his taillights on. The trial...
First-degree trespass is a lesser included offense of felony breaking or entering.
Information in a police department database linking the defendant’s name to her photograph fell within the Rule 803(8) public records hearsay exception. After an undercover officer engaged in a drug buy from the defendant, he selected the defendant’s photograph from an array presented to him by...
First-degree trespass is a lesser included offense of felony breaking or entering.
The trial court did not commit plain error under Rules 401 or 403 by admitting photographs of the murder victim’s body. The trial court admitted 28 photographs and diagrams of the interior of the home where the victim was found, 12 of which depicted the victim’s body. The trial court also...
Under the Structured Sentencing Act a trial judge does not have authority to allow a defendant to serve an active sentence on nonconsecutive days, such as on weekends only.
On appeal, a defendant is bound by his or her stipulation to the existence of a prior conviction. However, even if a defendant has stipulated to his or her prior record level, the defendant still may appeal the propriety of counting a stipulated-to conviction for purposes of calculating prior...
Because defense counsel admitted the defendant’s guilt to assault with a deadly weapon and involuntary manslaughter to the jury without obtaining the defendant’s express consent, counsel was per se ineffective under State v. Harbison, 315 N.C. 175 (1985). A majority of the panel...
In a larceny of motor vehicle case, the court held that the Kelley Blue Book and the NADA pricing guide fall within the Rule 803(17) hearsay exception for “[m]arket quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by...
It was error to allow officers, who were not proffered as experts in accident reconstruction and who did not witness the car accident in question, to testify to their opinions that the defendant was at fault based on their examination of the accident scene. The court stated: “Accident...
In a larceny of motor vehicle case, the court rejected the defendant’s argument that testimony by the vehicle owners regarding the value of the stolen vehicles invaded the province of the jury as fact-finder, stating: “the owner of property is competent to testify as to the value of his own...
The trial court did not err by denying the defendant’s motion to dismiss a charge of felony failure to appear. To survive a motion to dismiss a charge of felonious failure to appear, the State must present substantial evidence that (1) the defendant was released on bail pursuant to G.S. Article...
In a murder and armed robbery case, the trial court did not commit plain error by admitting 404(b) evidence that the defendant broke into and stole from two houses near the time of the victim’s death. The evidence was relevant to illustrate the defendant’s motive for stealing from the victim—to...
In a larceny of motor vehicle case, the restitution award was not supported by competent evidence. Restitution must be supported by evidence adduced at trial or at sentencing; the unsworn statement of the prosecutor is insufficient to support restitution. In this case, the trial court ordered...
The defendant moved to suppress on grounds that an officer stopped him without reasonable suspicion. At a hearing on the suppression motion, the State stipulated that the officer knew, at the time of the stop, that the robbery suspects the officer was looking for were approximately 18 years old...
On remand, the court held that officers did not exceed the scope of the frisk by confiscating a digital scale from the defendant’s pocket. An officer testified that he knew the object was a digital scale based on his pat-down without manipulation of the object and that individuals often carry...
The evidence was sufficient to establish that the knife used in the assault was a deadly weapon where a witness testified that the knife was three inches long and the victim sustained significant injuries.
The trial court had jurisdiction to revoke the defendant’s probation. In 2003, the defendant was convicted in Haywood County and placed on probation. In 2007, the defendant’s probation was modified in Buncombe County. In 2009, it was revoked in Buncombe County. Appealing the revocation, the...
A witness’s out-of-court statement to an officer was properly admitted to corroborate her trial testimony. Although the witness’s out-of-court statement contained information not included in her in-court testimony, the out-of-court statement was generally consistent with her trial testimony and...
There was probable cause supporting a warrantless search of the defendant. During a pat-down, an officer felt a digital scale in the defendant’s pocket and the defendant confirmed the nature of the object. The officer was justified in concluding that the scale was contraband given informant tips...
The evidence was sufficient to establish serious injury where the defendant had a three-inch knife during the assault; the victim bled “a lot” from his wounds, dripping blood throughout the bedroom, bathroom, and kitchen; the victim was on the floor in pain and spitting up blood when the officer...
There was insufficient evidence that the defendant had constructive possession of bags of marijuana found in a vehicle. An officer found a vehicle that had failed to stop on his command in the middle of a nearby street with the engine running. The driver and passengers had fled. Officers...
The trial court did not err by denying the defendant’s motion to disclose the identity of a confidential informant in a drug case. The informant set up a drug transaction between an officer and the defendant, accompanied the officer during the transaction, but was not involved in it. When...
The defendant was properly assigned two prior record level points for a federal felony. The State presented a prior record level worksheet, signed by defense counsel, indicating that the defendant had two points for the federal conviction. During a hearing, the prosecutor asked defense counsel...
An officer lacked reasonable suspicion for a stop. The State stipulated that the officer knew, at the time of the stop, that the robbery suspects the officer was looking for were approximately 18 years old. The defendant was 51 years old at the time of the stop. Even if the officer could not...
When a conspiracy indictment names specific individuals with whom the defendant is alleged to have conspired and the evidence shows the defendant may have conspired with others, it is error for the trial court to instruct the jury that it may find the defendant guilty based upon an agreement...
A SBI Agent’s testimony at the suppression hearing supported the trial court’s finding that the Agent advised the defendant of his Miranda rights, read each statement on the Miranda form and asked the defendant if he understood them, put check marks on the list by each...
In a counterfeit controlled substance case, the trial court did not err by failing to give a jury instruction where the defense failed to submit the special instruction in writing.
In a case in which the defendant was found guilty of felonious child abuse inflicting serious bodily injury and first-degree murder, the trial court did not abuse its discretion by admitting 404(b) evidence showing that the defendant engaged in continual and systematic abuse of her other...
An anonymous tip lacked a sufficient indicia of reliability to justify the warrantless stop. The anonymous tip reported that a black male wearing a white t-shirt and blue shorts was selling illegal narcotics and guns at the corner of Pitts and Birch Streets in the Happy Hill Garden housing...
In a case in which the defendant was found guilty of felonious child abuse inflicting serious bodily injury and first-degree murder, the trial court did not err by admitting testimony of the State’s expert in the field of developmental and forensic pediatrics. Based on a review of photographs,...
Holding that the trial court committed plain error by admitting the testimony of the State’s expert chemist witness that the substance at issue was hydrocodone, an opium derivative. The State’s expert used a Micromedics database of pharmaceutical preparations to identify the pills at issue...
A tip from a confidential informant had a sufficient indicia of reliability to support a stop of the defendant’s vehicle where the evidence showed that: (1) a confidential informant who had previously provided reliable information told police that the defendant would be transporting cocaine that...
For purposes of the counterfeit controlled substance offenses, a counterfeit controlled substance is defined, in part, by G.S. 90-87(6) to include any substance intentionally represented as a controlled substance. The statute further provides that “[i]t is evidence...
The defendant’s Fourth Amendment rights were violated when the police searched his vehicle incident to his arrest for driving with a revoked driver’s license. Under Gant (discussed above), the officers could not reasonably have believed that evidence of the defendant’s driving...
In a child sex case, there was substantial evidence that the defendant abused the victim during the period alleged in the indictment and specified in the bill of particulars (Feb. 1, 2001 – Nov. 20, 2001) and at a time when the defendant was sixteen years old and thus could be charged as an...
The defendant, who was sixteen years old when he committed the sexual offenses at issue, was sentenced to 32 to 40 years imprisonment. The court held that the sentence did not violate the constitutional prohibitions against cruel and unusual punishment.
Sexual battery is not an aggravated offense for the purposes of SBM.
The evidence was sufficient to establish that the defendant knowingly possessed and transported the controlled substance. The evidence showed that (1) the packages involved in the controlled delivery leading to the charges at issue were addressed to “Holly Wright;” although a person named Holly...
The trial court’s mistake of ordering SMB for a period of ten years (instead of lifetime registration) after finding that the defendant was a recidivist was not a clerical error.
No fatal variance existed when a burglary indictment alleged that defendant broke and entered “the dwelling house of Lisa McCormick located at 407 Ward’s Branch Road, Sugar Grove Watauga County” but the evidence at trial indicated that the house number was 317, not 407. On this point, the court...
In a burglary case, the trial court properly took judicial notice of the time of sunset and of civil sunset as established by the Naval Observatory and instructed the jury that it “may, but is not required to, accept as conclusive any fact judicially noticed.”
Following Singleton and holding that indecent liberties is not an aggravated offense.
Indictments charging the defendant with drug crimes and identifying the controlled substance as “BENZODIAZEPINES, which is included in Schedule IV of the North Carolina Controlled Substances Act[.]” were defective. Benzodiazepines is not listed in Schedule IV. Additionally, benzodiazepine...
A defendant’s appeal from a trial court’s order requiring enrollment in SBM for life is a civil matter. Thus, oral notice of appeal pursuant to N.C.R. App. P. 4(a)(1) is insufficient to confer jurisdiction on the court of appeals. Instead, a defendant must give notice of appeal pursuant to N.C.R...
Rejecting the defendant’s argument that his sentence of 84-110 months in prison for possession of cocaine as a habitual felon constituted cruel and unusual punishment.
The trial judge did not abuse his discretion in giving an Allen instruction. After an hour of deliberation, the jury foreman sent a note stating that the jury was not able to render a verdict and were split 11-1. The trial court recalled the jury to the courtroom and, with the consent...
Based on the facts of the case, the clerk properly polled the jury in accordance with G.S. 15A-1238.
A search of a tire found in the undercarriage of the defendant’s vehicle was proper. An officer stopped the defendant for following too closely. The officer asked for and received consent to search the vehicle. During the consent search, the officer performed a “ping test” on a tire found inside...
Inadvertent listing of the wrong criminal action number on the judgment was a clerical error.
The trial judge had discretion whether to run two drug trafficking sentences imposed at the same time concurrently or consecutively. G.S. 90-95(h) provides that, “[s]entences imposed pursuant to this subsection shall run consecutively with and shall commence at the expiration of any sentence...
Remanding for a determination of whether the defendant required the highest level of supervision and monitoring. Although the DOC’s risk assessment indicated that the defendant was a moderate risk, there was evidence that he had violated six conditions of probation, including failure to be at...
A search of a tire found in the undercarriage of the defendant’s vehicle was proper. An officer stopped the defendant for following too closely. The officer asked for and received consent to search the vehicle. During the consent search, the officer performed a “ping test” on a tire found inside...
The proper standard for determining whether a person was in custody for purposes of Miranda is not whether one would feel free to leave but whether there was indicia of formal arrest. On the facts presented, there was no indicia of arrest.
In an armed robbery case, admission of evidence of two guns found in the defendant’s home was reversible error where “not a scintilla of evidence link[ed] either of the guns to the crimes charged.”
A defendant may be convicted and sentenced for both possession of ecstasy and possession of ketamine when both of the controlled substances are contained in a single pill.
When the defendant asked, “Do I need an attorney?” the officer responded, “are you asking for one?” The defendant failed to respond and continued telling the officer about the shooting. The defendant did not unambiguously request a lawyer.
Applying Locklear and Mobley, both discussed above, the court concluded that testimony of a substitute analyst identifying a substance as cocaine base violated the defendant’s confrontation clause rights. The court characterized the substitute analyst’s testimony as “merely...
The trial court erred by denying the defendant’s motion to dismiss the charge of failing to register as a sex offender by failing to verify his address. In order to be convicted for failure to return the verification form, a defendant must actually have received the form. In this case, the...
The vehicle checkpoint did not violate the defendant’s Fourth Amendment rights. The primary programmatic purpose of the checkpoint—to determine if drivers were complying with drivers license laws and to deter citizens from violating these laws—was a lawful one. Additionally, the checkpoint...
There was no fatal variance between a warrant charging assault on a government officer under G.S. 14-33(c)(4) and the evidence at trial. The warrant charged that the assault occurred while the officer was discharging the duty of arresting the defendant for communicating threats but at trial the...
Applying the “elements test,” second-degree rape committed by force and against the victim’s will is an aggravated offense triggering lifetime SBM.
The statutory definition of an aggravated offense in G.S. 14-208.6(1a) is not unconstitutionally vague for failure to define the term “use of force.”
Indictment alleging that the defendant discharged a barreled weapon into an occupied residence properly charged the Class D version of this felony (shooting into occupied dwelling or occupied conveyance in operation) even though it erroneously listed the punishment as the Class E version (...
There was sufficient evidence of constructive possession. When a probation officer went to the defendant’s cabin, the defendant ran away; a frisk of the defendant revealed spent .45 caliber shells that smelled like they had been recently fired; the defendant told the officer that he had been...
A defendant may be convicted for both second-degree murder (for which the evidence of malice was the fact that the defendant drove while impaired and had prior convictions for impaired driving) and impaired driving.
The reasonableness standard of New Jersey v. T.L.O., 469 U.S. 325 (1985), applied to a search of a student by an officer assigned to the school. The officer was working in conjunction with and at the direction of the assistant principal to maintain a safe and educational environment....
The trial court did not err by admitting lay opinion testimony from an officer regarding whether, based on his experience in narcotics, he knew if it was common for a person selling drugs to have possession of both money and drugs. Officer also gave an opinion about whether a drug dealer would...
The evidence was insufficient to support a conviction where the state failed to produce evidence that the assault was done in a secret manner. To satisfy this element, the state must offer evidence showing that the victim is caught unaware.
In a child sexual abuse case, evidence of the defendant’s prior violence towards the victims’ mother, with whom he lived, was relevant to show why the victims were afraid to report the sexual abuse and to refute the defendant’s assertion that the victims’ mother was pressuring the victims to...
The evidence was insufficient to establish that the defendant knew a gun was stolen. Case law establishes that guilty knowledge can be inferred from the act of throwing away a stolen weapon. In this case, shortly after a robbery, the defendant and an accomplice went to the home of the accomplice...
In a DWI/homicide case, the trial court erred by allowing a state’s witness to testify about ingredients and effect of Narcan. Although the state proffered the testimony as lay opinion, it actually was expert testimony. When the state called the witness, it elicited extensive testimony regarding...
On appeal, the defendant argued that there was a fatal variance between the indictment charging him with possession of a firearm and the evidence introduced at trial. Specifically, the defendant argued there was a variance as to the type of weapon possessed. By failing at the trial level to...
By consenting to a search of all personal and real property at 19 Doc Wyatt Road, the defendant consented to a search of an outbuilding within the curtilage of the residence. The defendant’s failure to object when the outbuilding was searched suggests that he believed that the outbuilding was...
A defendant may not be sentenced for both involuntary manslaughter and felony death by vehicle arising out of the same death. A defendant may not be sentenced for both felony death by vehicle and impaired driving arising out of the same incident. However, a defendant may be sentenced for both...
Fact that indictment charging discharging a barreled weapon into an occupied dwelling used the term “residence” instead of the statutory term “dwelling” did not result in a lack of notice to the defendant as to the relevant charge.
Felon in possession indictment that listed the wrong date for the prior felony conviction was not defective, nor was there a fatal variance on this basis (indictment alleged prior conviction date of December 8, 1992 but judgment for the prior conviction that was introduced at trial was dated...
The trial judge properly determined that a juvenile’s statements, made after an officer’s search of his person revealed cash, were admissible. The juvenile’s stated that the cash was not from selling drugs and that it was his mother’s rent money. The statement was unsolicited and spontaneous.
The trial judge committed a clerical error when he entered judgment for a violation of G.S. 14-34.1(a), the Class E version of discharging a firearm into occupied property. The record showed that, based on the defendant’s prior record level, the judge’s sentence reflected a decision to sentence...
In a DWI/homicide case, the trial court erred by allowing a state’s witness to testify about ingredients and effect of Narcan. Although the state proffered the testimony as lay opinion, it was actually expert testimony. When the state called the witness, it elicited extensive testimony regarding...
For purposes of assigning one prior record level point for out-of-state misdemeanors that are substantially similar to a North Carolina A1 or 1 misdemeanor, North Carolina impaired driving is a Class 1 misdemeanor. Thus, the trial court did not err by assigning one prior record level point to...
The officer had reasonable suspicion to stop when the officer saw the defendant commit a violation of G.S. 20-154(a) (driver must give signal when turning whenever the operation of any other vehicle may be affected by such movement). Because the defendant was driving in medium traffic, a short...
The trial court did not err by denying the defendant’s motion to withdraw his plea, made before sentencing. The fact that the plea was a no contest or Alford plea did not establish an assertion of legal innocence for purposes of the State v. Handy analysis that applies to pre-...
An affidavit was sufficient to establish probable cause to believe that stolen items would be found in the defendant’s home, notwithstanding alleged omissions by the officer.
Trial judge could have could have consolidated into a single judgment multiple offenses, all of which were elevated to a Class C because of habitual felon status.
In a drug case, a tip from a confidential informant provided reasonable suspicion justifying the stop where the relevant information was known by the officer requesting the stop but not by the officer conducting the stop. The confidential informant had worked with the officer on several...
An informant’s observations of methamphetamine production and materials at the location in question and an officer’s opinion that, based on his experience, an ongoing drug production operation was present supplied probable cause supporting issuance of the warrant.
The offense of manufacturing a controlled substance does not require an intent to distribute unless the activity constituting manufacture is preparing or compounding. An indictment charging the defendant with manufacturing methamphetamine “by chemically combining and synthesizing precursor...
Ordering a new sentencing hearing where there was a reasonable inference that the trial judge ran the defendant’s ten felony sentences consecutively in part because of the defendant’s rejection of a plea offer and insistence on going to trial. Even though the sentences were elevated to Class C...
After being found guilty of first-degree rape and first-degree kidnapping, the defendant was sentenced to consecutive terms of 307-378 months for the rape and 133-169 for the kidnapping. On appeal, the court held that the trial judge erred by allowing the same sexual assault to serve as the...
Admission of the defendant’s statements did not violate Evidence Rule 410 where it did not appear that the defendant thought that he was negotiating a plea with the prosecuting attorney or with the prosecutor’s express authority when he made the statements at a court hearing. Instead, the...
Following Davison and holding that when considering whether a pleaded-to offense is an aggravated one for purposes of SBM, the trial court may look only to the elements of the offense, and not at the factual basis for the plea. In this case, the defendant pleaded guilty to felonious...
Rejecting the defendant’s argument that information relied upon by officers to establish probable cause was stale. Although certain information provided by an informant was three weeks old, other information pertained to the informant’s observations made only one day before the application for...
Defendant’s mother was not acting as an agent of the police when, at the request of officers, she asked her son to tell the truth about his involvement in the crime. This occurred in a room at the police station, with officers present.
Short-form murder indictment put the defendant on notice that the State might proceed on a theory of felony-murder.
Mistake of age is not a defense to the crime of indecent liberties. The trial court did not err by instructing the jury that the term willfully meant that the act was done purposefully and without justification or excuse. This instruction “largely mirrors” the North Carolina Supreme Court’s...
Statements of a non-testifying informant to a police officer were non-testimonial when offered not for the truth of the matter asserted but rather to explain the officer’s actions in the course of the investigation.
There was insufficient evidence that the defendant constructively possessed the controlled substances at issue. The defendant did not have exclusive possession of the premises where the drugs were found; evidence showed only that the defendant was present, with others, in the room where the...
No fatal variance where an indictment charging sale and delivery of a controlled substance alleged that the sale was made to “Detective Dunabro.” The evidence at trial showed that the detective had gotten married and was known by the name Amy Gaulden. Because Detective Dunabro and Amy Gaulden...
The evidence was sufficient to establish that the defendant emitted bodily fluids where it showed that he spit on an officer. The evidence was sufficient to show that the defendant acted knowingly and willfully where the defendant was uncooperative with the officers, was belligerent towards them...
A printed copy of a screen-shot from the N.C. Administrative Office of the Courts (AOC) computerized criminal record system showing the defendant’s prior conviction is sufficient to prove the defendant’s prior conviction under G.S. 15A-1340.14(f)(3). Additionally, the information in the printout...
Indictment charging assault on a government officer under G.S. 14-33(c)(4) need not allege the specific duty the officer was performing and if it does, it is surplusage.
In an indecent liberties case where the defendant alleged that she did not know the victim’s age, the trial court did not err by declining the defendant’s proposed instruction on willfulness which would have instructed that willfully means something more than an intention to commit the offense...
Even if the defendant was arrested without probable cause, his subsequent criminal conduct of giving the officers a false name, date of birth, and social security number need not be suppressed. “The exclusionary rule does not operate to exclude evidence of crimes committed subsequent to an...
The trial court properly submitted felony-murder to the jury based on underlying felony of attempted sale of a controlled substance with the use of a deadly weapon. The defendant and an accomplice delivered cocaine to the victim. Approximately one week later, they went to the victim’s residence...
Indictment charging malicious conduct by prisoner under G.S. 14-258.4 need not allege the specific duty the officer was performing and if it does, it is surplusage.
The defendant’s active (and false) acknowledgement to an officer that the last four digits of his social security number were “2301” constituted the use of identifying information of another within the meaning of G.S. 14-113.20(a).
There was sufficient evidence of constructive possession even though the defendant did not have exclusive control of the residence where the controlled substances were found. The defendant admitted that he resided there, officers found luggage, mail, and a cellular telephone connected to the...
No fatal variance where an indictment charging sale and delivery of a controlled substance alleged that the sale was made to “Detective Dunabro.” The evidence at trial showed that the detective had since gotten married and was known by the name Amy Gaulden. Because Detective Dunabro and Amy...
The trial court did not err by allowing the State to amend a habitual impairing driving indictment that mistakenly alleged a seven-year look-back period (instead of the current ten-year look-back), where all of the prior convictions alleged in the indictment fell within the ten-year period. The...
The trial court did not err by using the word “victim” in the jury charge in a child sex offense case.
There was insufficient evidence that the defendant constructively possessed cocaine and drug paraphernalia. When officers announced their presence at a residence to be searched pursuant to a warrant, the defendant exited through a back door and was detained on the ground; crack cocaine was found...
A roadside strip search was unreasonable. The search was a strip search, even though the defendant’s pants and underwear were not completely removed or lowered. Although the officer made an effort to shield the defendant from view, the search was a “roadside” strip search, distinguished from a...
Prejudice enhancement in G.S. 14-3(c) was properly applied where the defendant, a white male, assaulted another white male because of the victim’s interracial relationship with a black female.
The defendant advised or enticed an officer posing as a child to meet the defendant, on the facts presented. The court noted that since the terms advise and entice were not defined by the statute, the General Assembly is presumed to have used the words to convey their natural and ordinary...
Police department did not act “willfully” within the meaning of the North Carolina Electronic Surveillance Act (NCESA) by monitoring an officer’s conversations in his patrol car in response to information that the officer was engaging in misconduct. As used in the NCESA, the term requires that...
Not mentioning Meadows and stating that notwithstanding Llamas-Hernandez, State v. Freeman, 185 N.C. App. 408 (2007), stands for the proposition that an officer may offer a lay opinion that a substance is crack cocaine.
There was insufficient evidence of resisting an officer. The State argued that the defendant resisted by exiting a home through the back door after officers announced their presence with a search warrant. “We find no authority for the State’s presumption that a person whose property is not the...
The trial court erred by ordering restitution where no evidence was presented supporting the restitution worksheet. The defendant’s silence when the trial court orally entered judgment cannot constitute a stipulation to restitution.
The court rejected the defendant’s argument that as applied to him, G.S. 14-269.4 (carrying weapon in a courthouse) violated his right to bear arms under Article I, Section 30 of the North Carolina Constitution. The defendant had argued that the General Assembly had no authority to enact any...
The evidence was sufficient to establish misdemeanor cruelty to animals under G.S. 14-360(a) on grounds of torment. The odor of cat feces and ammonia could be smelled outside of the property and prevented officers from entering without ventilating and using a breathing apparatus; while the house...
The defendant’s motion to suppress was untimely where the defendant had approximately seven weeks of notice that the State intended to use the evidence, well more than the required 20 working days.
A murder victim’s statements to her mother were properly admitted under the Rule 803(3) exception for then-existing mental, emotional or physical condition. The victim told her mother that she wanted to leave the defendant because he was wanted in another jurisdiction for attempting to harm the...
The trial court abused its discretion by determining that two normal mitigating factors, without additional facts being present, constituted extraordinary mitigation.
In a sexual assault case involving a 13-year-old victim, the evidence was insufficient to establish aggravating factor G.S. 15A-1340.16(d)(15) (took advantage of a position of trust or confidence, including a domestic relationship). The defendant was the stepfather of the victim’s friend. The...
The trial court erred by sentencing the defendant at prior record level VI. Although the prosecutor submitted a Felony Sentencing Worksheet (AOC-CR-600), there was no stipulation, either in writing on the worksheet or orally by the defendant. The court noted that the relevant form now includes...
Prosecutor’s comment during jury argument was improper. The comment attacked the integrity of defense counsel and was based on speculation that the defendant changed his story after speaking with his lawyer.
A defendant does not have a right to appeal a trial judge’s order denying relief following a hearing to evaluate test results.
Where an audio recording of a prior juvenile proceeding was available to all parties and the content of the recording was not in question, Rule 1002 was not violated by the admission of a written transcript of the proceeding.
The trial judge violated G.S. 15A-1351 by imposing a period of special probation that exceeded ¼ of the maximum sentence of imprisonment imposed. The trial judge also violated G.S. 15A-1343.2 by imposing a term of probation greater than 36 months without making the required specific findings...
Reversing and remanding for a new trial where, despite the fact that there was no evidence that the defendant was the aggressor, the trial judge instructed the jury that in order to receive the benefit of self-defense, the defendant could not have been the aggressor.
G.S. 15A-1025 (the fact that the defendant or counsel and the prosecutor engaged in plea discussions or made a plea arrangement may not be received in evidence) was violated when the prosecutor asked the defendant whether he was charged with misdemeanor larceny as a result of a plea bargain.
There was an adequate factual basis for the defendant’s Alford plea in a child abuse case based on starvation where the trial court heard evidence from a DSS attorney, the victim, and the defendant’s expert witness.
There was sufficient evidence of malice to support a second-degree murder conviction in a case where the defendant ran over a four-year-old child. When she hit the victim, the defendant was angry and not exhibiting self-control; the defendant’s vehicle created “acceleration marks” and was...
Citing State v. Johnson, 9 N.C. App. 253 (1970), and noting in dicta that the granting of a motion to dismiss due to a material fatal variance between the indictment and the proof presented at trial does not preclude a retrial for the offense alleged on a proper indictment.
The trial court did not err by failing to find the G.S. 15A-1340.16(e)(8) mitigating factor that the defendant acted under strong provocation or that the relationship between the defendant and the victim was otherwise extenuating. As to an extenuating relationship, the evidence showed only that...
G.S. 20-139.1(d1) (providing that in order to proceed with a non-consensual blood test without a warrant, there must be probable cause and the officer must have a reasonable belief that a delay in testing would result in dissipation of the person’s blood alcohol content), codifies exigent...
The trial court did not err by denying the defendant’s pre-trial motion to dismiss a charge of felonious possession of stolen property on double jeopardy grounds. Although the defendant was indicted for felony possession of stolen property (a Toyota truck) under G.S. 14-71.1, at the first trial...
There was sufficient evidence that a stolen truck was worth more than $1,000. The sole owner purchased the truck new 20 years ago for $9,000.00. The truck was in “good shape”; the tires were in good condition, the radio and air conditioning worked, and the truck was undamaged, had never been in...
The trial court did not abuse its discretion by allowing an officer to give a lay opinion as to the value of a stolen Toyota truck in a felony possession trial. The officer had worked as a car salesman, was very familiar with Toyotas, and routinely valued vehicles as a police officer. He also...
Trial judge’s Blakely error with respect to aggravating factors was not harmless and required a new sentencing hearing.
The defendant, who had entered an Alford plea, was not prejudiced by the trial judge’s failure to inform him of his right to remain silent, the maximum possible sentence, and that if he pleaded guilty he would be treated as guilty even if he did not admit guilt. (In addition to the...
The trial court did not err in denying the defendant’s motion to withdraw a plea, made after sentencing. Such pleas should be granted only to avoid manifest injustice, which was not shown on the facts presented.
The prosecutor’s offer of a package deal in which the defendant’s wife would get a plea deal if the defendant pleaded guilty did not constitute improper pressure within the meaning of G.S. 15A-1021(b). Although special care may be required to determine the voluntariness of package deal pleas,...
The trial court did not err by denying the defendant’s request for a voluntary manslaughter instruction. Although the defendant knew that his wife was having sex with other men and she threatened to continue this behavior, the defendant did not find her in the act of intercourse with another or...
G.S. 15A-1340.15(b) requires that when offenses are consolidated for judgment, the trial judge must enter a sentence for the most serious offense.
The court upheld the constitutionality of G.S. 90-95(g)’s notice and demand statute for forensic laboratory reports in drug cases. Since the defendant failed to object after the State gave notice of its intent to introduce the report without the presence of the analyst, the defendant waived his...
The trial court did not err by failing to intervene ex mero motu when, in closing argument, the prosecutor suggested that the defendant was lying. The comments were not so grossly improper as to constitute reversible error.
In a drug case, the evidence failed to establish that the defendant was entitled to the entrapment defense as a matter of law. Thus, the trial court did not err by denying the defendant’s motion to dismiss on grounds of entrapment and submitting the issue to the jury.
Following Davison and holding that the pleaded-to offense of indecent liberties was not an aggravated offense under the elements test.
Once the trial judge determines that the defendant has been convicted of such an offense, the trial judge should order the DOC to perform a risk assessment. The trial court then must decide, based on the risk assessment and any other evidence presented, whether defendant requires “the highest...
There was sufficient evidence that the defendant constructively possessed controlled substances found in a motorcycle carry bag even though the defendant did not own the motorcycle.
Following State v. Little, 191 N.C. App. 655 (2008), and State v. Jackson, 139 N.C. App. 721 (2000), and holding that the trial court did not abuse its discretion by allowing the State to introduce evidence of the defendant’s prior conviction in a felon in possession case where...
The trial court did not err in denying the defendant’s request for a jury instruction on duress. The defendant voluntarily joined with his accomplices to commit an armed robbery, he did not object or attempt to exit the vehicle as an accomplice forced the victims into the car, and the defendant...
The trial court did not abuse its discretion by denying the defendant’s mistrial motion made after the State twice violated a court order forbidding any mention of polygraph examinations. The court disapproved of the State’s action in submitting to the jury unredacted exhibits containing...
Because a SBM order is a final judgment from the superior court, the Court of Appeals has jurisdiction to consider appeals from SBM monitoring determinations under G.S. 14-208.40B pursuant to G.S. 7A-27.
Following State v. Little, 191 N.C. App. 655 (2008), and State v. Jackson, 139 N.C. App. 721 (2000), and holding that the trial court did not abuse its discretion by allowing the State to introduce evidence of the defendant’s prior conviction in a felon in possession case where...
A printout from the FBI’s National Crime Information Center (NCIC) contained sufficient identifying information to prove, by a preponderance of the evidence, that the defendant was the subject of the report and the perpetrator of the offenses specified in it. The printout listed the defendant’s...
Statutory rape constitutes an offense involving the physical, mental, or sexual abuse of a minor. Once the trial judge determines that the defendant has been convicted of such an offense, the trial judge should order the DOC to perform a risk assessment. The trial court then must decide, based...
A new trial was required in a drug case where the trial court erred by admitting expert testimony as to the identity of the controlled substance when that testimony was based on the results of a NarTest machine. Applying ...
The term “deliver,” used in the trafficking statutes, is defined by G.S. 90-87(7) to “mean[] the actual constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.” Thus, an actual delivery is not required. In a...
Standing alone, the defendant’s statement that a plastic bag in his car contained “cigar guts” did not establish probable cause to search the defendant’s vehicle. Although the officer testified that gutted cigars had become a popular means of consuming controlled substances, that evidence...
Citing Ward, discussed above under expert opinions, the court held that the trial judge erred by allowing a police officer to testify that he “collected what [he] believe[d] to be crack cocaine.” Controlled substances defined in terms of their chemical composition only can be identified...
The defendant was subject to interrogation within the meaning of Miranda when he made incriminating statements to a detective. The detective should have known that his conduct was likely to elicit an incriminating response when, after telling the defendant that their conversation would...
Reversing the trial court’s ruling that federal Indian gaming law prohibits the State from granting the Eastern Band of Cherokee Indians of North Carolina (“the Tribe”) exclusive rights to conduct certain gaming on tribal land while prohibiting such gaming, in G.S. 14-306.1A, throughout the rest...
An encounter between the defendant and an officer did not constitute a seizure. The officer parked his patrol car on the opposite side of the street from the defendant’s parked car; thus, the officer did not physically block the defendant’s vehicle from leaving. The officer did not activate his...
The trial court committed reversible error by allowing a police officer to give a lay opinion identifying the defendant as the person depicted in a surveillance video. The officer only saw the defendant a few times, all of which involved minimal contact. Although the officer may have been...
Only a barreled weapon must meet the velocity requirements of G.S. 14-34.1(a) (capable of discharging shot, bullets, pellets, or other missiles at a muzzle velocity of at least 600 feet per second); a firearm does not.
(1) There was sufficient evidence of serious bodily injury with respect to one victim where the victim suffered a cracked pelvic bone, a broken rib, torn ligaments in her back, a deep cut over her left eye, and was unable to have sex for seven months; the eye injury developed an infection that...
A defendant’s stipulation to the existence of out-of-state convictions and their classification as felonies or misdemeanors can support a “default” classification for prior record level purposes. However, a stipulation to substantial similarity is ineffective, as that issue is a matter of law...
In a case in which the defendant was convicted, among other things, of assault with a deadly weapon on a governmental official, the trial court committed plain error by failing to instruct the jury on the lesser included offense of misdemeanor assault on a government official. Because the trial...
The trial court did not err in admitting four objected-to photographs of the crime scene where the defendant did not did not object to 23 other crime scene photographs, the four objected-to photographs depicted different perspectives of the scene and focused on different pieces of evidence, the...
A defendant may be convicted of assault inflicting serious bodily injury and first-degree kidnapping when serious injury elevates the kidnapping conviction to first-degree.
Even if there was a fatal variance between the indictment, which alleged that the defendant accomplished the strangulation by placing his hands on the victim’s neck, and the evidence at trial, the variance was immaterial because the allegation regarding the method of strangulation was surplusage...
The trial court had inherent authority to order an attorney to pay $500 as a sanction for filing motions in violation of court rules, that were vexatious and without merit, and that were for the improper purpose of harassing the prosecutor. The attorney received proper notice that the sanctions...
Even if the State did not fully comply with 18 U.S.C. § 2703(d) of the Stored Communications Act, which governs disclosure of customer communications or records, there is no suppression remedy for a violation; the statute only provides for a civil remedy.
On the facts, the trial judge did not err in concluding that the petitioner willfully refused to submit to a breath test.
The trial court did not err by denying the defendant’s motion to dismiss the charges and her motion in limine, both of which asserted that the State violated the discovery rules by failing to provide her with the victim’s pretrial statement to the prosecutor. The victim made a statement to the...
Remanding for failure to properly conduct the SBM determination, as outlined in the court’s opinion. The court also held that when determining whether an offense is an aggravated offense for purposes of SBM, the trial court may look only at the elements of the conviction offense and may not...
The vehicle at issue was not a deadly weapon as a matter of law where there was no evidence that the vehicle was moving at a high speed and given the victim’s lack of significant injury and the lack of damage to the other vehicle involved, a jury could conclude that the vehicle was not aimed...
(1) The evidence was sufficient to establish assault by strangulation; the victim told an officer that she felt that the defendant was trying to crush her throat, that he pushed down on her neck with his foot, that she thought he was trying to “chok[e] her out” or make her go unconscious, and...
There was sufficient evidence that the defendant’s hands were a deadly weapon as to one victim when the evidence showed that the defendant was a big, stocky man, probably larger than the victim, who was a female and a likely user of crack cocaine, and the victim sustained serious injuries. There...
The defendant did not have standing to assert a Fourth Amendment violation regarding cellular telephone records where there was no evidence that the defendant had an ownership interest in the telephones or had been given a possessory interest by the legal owner of the telephones. Mere possession...
Distinguishing State v. Holland, 234 N.C. 354 (1951), and State v. Murphy, 225 N.C. 115 (1945), in which the victims were rendered unconscious by the defendants and regained consciousness bereft of their property, the court held that there was sufficient evidence that the...
The removal of the victim was without her consent when the defendant induced the victim to enter his car on the pretext of paying her money in exchange for sex, but his real intent was to assault her; a reasonable mind could conclude that had the victim...
The defendant was properly convicted of two counts of sexual offense when the evidence showed that the victim awoke to find the defendant’s hands in her vagina and in her rectum at the same time.
A defendant may not be convicted of assault with a deadly weapon inflicting serious injury and assault inflicting serious bodily injury arising out of the same conduct.
The doctrine of transferred intent permits the conviction of a defendant for discharging a weapon into occupied property when the defendant intended to shoot a person but instead shot into property that he or she knew was occupied.
The trial court did not abuse its discretion by granting a recess instead of dismissing the charges or barring admission of the defendant’s statement to the police, when that statement was not provided to the defense until the second day of trial in violation of the criminal discovery rules....
Police officers lawfully were present in a common hallway outside of the defendant’s individual storage unit. The hallway was open to those with an access code and invited guests, the manager previously had given the police department its own access code to the facility, and facility manager...
Use of a dog by officers to sweep the common area of a storage facility, altering them to the presence of drugs in the defendant’s storage unit, did not implicate a legitimate privacy interest protected by the Fourth Amendment.
The court upheld the language in N.C. Criminal Pattern Jury Instruction 101.40, instructing the jury that “it is your duty to do whatever you can to reach a verdict.”
The trial court violated G.S. 15A-1340.22(a) when it imposed a consecutive sentence on multiple misdemeanor convictions that was more than twice that allowed for the most serious misdemeanor, a Class 1 misdemeanor. The statute provides, in part, that if the trial court imposes consecutive...
The trial court did err by failing to ex mero motu investigate the competency of a juror after the juror sent two notes to the trial court during deliberations. After the juror sent a note saying that the juror could not convict on circumstantial evidence alone, the trial judge re-instructed the...
The fact that an officer who received the tip at issue had been receiving accurate information from the informant for nearly thirteen years sufficiently established the informant’s reliability. The affidavit sufficiently described the source of the informant’s information as a waitress who had...
A positive alert for drugs by a specially trained drug dog provides probable cause to search the area or item where the dog alerts.
The trial court did err by failing to ex mero motu investigate the competency of a juror after the juror sent two notes to the trial court during deliberations. After the juror sent a note saying that the juror could not convict on circumstantial evidence alone, the trial judge re-instructed the...
The defendant was not in custody while being treated at a hospital. Case law suggests that the following factors should be considered when determining whether questioning in a hospital constitutes a custodial interrogation: whether the defendant was free to go; whether the defendant was coherent...
Because the defendant was not stopped until after he ran away from the officers, his flight could be considered in determining that there was reasonable suspicion to stop.
A provision in a city ordinance prohibiting loitering for the purpose of engaging in drug-related activity and allowing the police to arrest in the absence of probable cause violated the Fourth Amendment.
Exigent circumstances justified officers’ entry into a home. The officers were told by an informant told that she bought marijuana at the house. When they approached for a knock and talk, they detected a strong odor of marijuana, and saw the defendant with his upper body partially out of a...
The trial court erred by denying the juvenile’s motion to suppress his incriminating statement where the juvenile’s waiver was not made “knowingly, willingly, and understandingly.” The juvenile was not properly advised of his right to have a parent, guardian, or custodian present during...
The evidence was sufficient to establish possession supporting convictions of felon in possession and carrying concealed where the defendant ran through a field in a high traffic area, appeared to have something heavy in his back pocket and to make throwing motions from that pocket, and a clean...
The evidence was sufficient to establish possession supporting convictions of felon in possession and carrying concealed where the defendant ran through a field in a high traffic area, appeared to have something heavy in his back pocket and to...
No Crawford violation occurred when a substitute analyst testified to her own expert opinion, formed after reviewing data and reports prepared by non-testifying expert. For a more detailed discussion of this case, see my blog post...
The court held that the (1) defendant, who had a custodial relationship with the child, committed an indecent liberty when he watched the child engage in sexual activity with another person and facilitated that activity; and (2) defendant’s two acts−touching the child’s breasts and watching and...
A city ordinance prohibiting loitering for the purpose of engaging in drug-related activity is unconstitutionally overbroad. Additionally, one subsection of the ordinance is void for vagueness, and another provision violates the Fourth Amendment by allowing the police to arrest in the absence of...
The court held that (1) the defendant, who was employed by a corporation at its boys’ group home location was a custodian of the victim, who lived at the corporation’s girls’ group home location; and (2) the State need not prove that the defendant knew that...
The trial court did not violate the defendant’s due process rights by denying the defendant’s motion to continue, which had asserted that pretrial publicity had the potential to prejudice the jury pool and deprive the defendant of a fair trial. No evidence regarding pretrial publicity was in the...
No stop occurred when the defendant began to run away as the officers exited their vehicle. The defendant did not stop or submit to the officers’ authority at this time.
Officers did not interrogate the defendant within the meaning of Miranda. An officer asked the defendant to explain why he was hanging out of a window of a house that officers had approached on an informant’s tip that she bought marijuana there. The defendant responded, “Man, I’ve got...
Officers had probable cause to enter a home and do a protective sweep when an informant told them that she bought marijuana at the house and, as they approached the house for a knock and talk, they detected a strong odor of marijuana.
There was sufficient evidence of malice to sustain a second-degree murder conviction where the defendant drove recklessly, drank alcohol before and while operating a motor vehicle, had prior convictions for impaired driving and driving while...
Following Ford, discussed above, and holding that the trial court properly assigned a prior record level point based on the fact that all elements of the offense at issue−delivery of a controlled substance, cocaine−were included in a prior conviction for delivery of a controlled...
The trial court did not abuse its discretion by admitting, to show identification, intent, and modus operandi, a bad act that occurred 2 ½ years after the crime at issue. Bad acts that occur subsequent to the offense being tried are admissible under Rule 404(b). When the evidence is admitted to...
The evidence supported the trial court’s conclusion that the defendant voluntarily consented to a search of his home. Although an officer aimed his gun at the defendant when he thought that the defendant was attempting to flee, the officer promptly lowered the gun. While the officers kicked down...
Following Fowler, discussed above, and holding that G.S. 20-38.6(f) does not violate the defendant’s substantive due process, procedural due process or equal protection rights. Also finding no violation of the constitutional provision on separation of powers.
Following Fowler, discussed above, and dismissing as interlocutory the State’s appeal from a decision by the superior court indicating its agreement with the district court’s pretrial indication pursuant to G.S. 20-38.6(f).
A Crawford violation occurred when the State’s expert gave an opinion, in a drug trafficking case, as to the weight of the cocaine at issue, based “solely” on a laboratory report by a non-testifying analyst. For a more detailed discussion of this case, see my...
The trial court applied the wrong legal standard when granting the defendant’s motion to suppress. The trial court held that an arrest occurred when the defendant was handcuffed by an officer, and the arrest was not supported by probable cause. The trial court should have determined whether...
It was error for the trial court to order that the defendant enroll in SBM for a period of 7-10 years; G.S. 14-208.40B(c) requires the trial court to set a definite period of time for SBM enrollment.
Requiring enrollment in the SBM program deprives an offender of a significant liberty interest, triggering procedural due process protections. The State violated the defendant’s procedural due process rights by failing to give him sufficient notice in advance of the SBM hearing of the basis for...
The trial judge impermissibly expressed an opinion during the defendant’s testimony that tended to discredit the defense theory and required a new trial. In this drug case, the defense’s principal theory was that the defendant did not possess the controlled substance and paraphernalia because...
The prosecutor did not improperly comment on the defendant’s failure to testify by pointing out to the jury in closing that the defense had not put on any mental health evidence as forecasted in its opening statement; however, the court disapproved of the prosecutor’s statement that this...
A defendant may be convicted and punished for both felony possession of marijuana and felony possession of marijuana with intent to sell or deliver.
The prosecutor’s comments during closing did not constitute a reference to the defendant’s failure to testify; the comments responded to direct attacks on the State’s witnesses and pertained to the defendant’s failure to produce witnesses or exculpatory evidence.
Concluding that the defendant’s claim of pre-indictment delay was not covered by the Speedy Trial clause; reviewing the defendant’s claim of pre-indictment delay as a violation of due process and finding no prejudice.
Affirming the trial court’s order denying the plaintiffs’ motion to unseal three returned search warrants and related papers. Holding that although returned search warrants are public records, the trial court did not abuse its discretion by sealing the documents where the release of information...
The plain smell of marijuana emanating from the defendant’s vehicle provided sufficient probable cause to support a search.
The State laid a proper foundation to establish the relevancy of a demonstration by an expert witness who used a doll to illustrate how shaken baby syndrome occurs and the amount of force necessary to cause the victim’s injuries, where a demonstration of how the injuries were inflicted was...
The trial court did not abuse its discretion by denying the defendant’s motion to bar the State from introducing forensic evidence related to his vehicle where the police impounded his vehicle during the investigation, but subsequently lost it. The State’s evidence suggested that soil from the...
Declining to consider the defendant’s challenge to the constitutionality of a vehicle checkpoint where officers did not stop the defendant’s vehicle as a part of the checkpoint but rather approached it after the defendant parked it on the street about 100-200 feet from the checkpoint.
The trial court properly admitted evidence of the defendant’s prior assault on a murder victim when the evidence showed that the defendant wanted to prevent the victim from testifying against him in the assault trial; the prior bad act showed motive, malice, hatred, ill-will and intent. There...
Rejecting the defendant’s argument that the trial court erred by not holding a separate sentencing proceeding for aggravating factors.
In determining whether the defendant requires the highest possible level of supervision and monitoring, the trial court may consider any evidence relevant to the defendant’s risk and is not limited to the DOC’s risk assessment. Because evidence supporting a finding of high risk was presented in...
No double jeopardy violation when the defendant was convicted and punished for indecent liberties and using a minor in obscenity based on the same photograph depicting the child and defendant. Each offense has at least one element that is not included in the other offense.
When calculating prior record level points for a new felony, points may be assigned based on a prior substantive felony supporting a prior habitual felon conviction, but not based on the prior habitual felon conviction itself.
Prejudicial error occurred warranting a new trial when the trial court overruled an objection to testimony of a witness who was qualified as an expert in the treatment of sexually abused children. After recounting a detailed description of an alleged sexual assault provided to her by the victim...
The trial court did not abuse its discretion in denying the defendant’s motion to continue alleging that the defendant did not receive discovery at a reasonable time prior to trial where the defendant never made a motion for discovery and there was no written discovery agreement and thus the...
Remanding for a new suppression hearing where the trial court failed to provide any basis or rationale for its denial of the defendant’s suppression motion. The court “again urge[d] the trial courts . . . to remember ‘it is always the better practice to find all facts upon which the...
The trial court did not abuse its discretion in denying a motion to continue asserting that the State provided discovery at a late date. The defendant failed to show that additional time was necessary for the preparation of a defense.
Although a habitual felon indictment may be returned before, after, or simultaneously with a substantive felony indictment, it is improper where it is issued before the substantive felony even occurred.
Holding that the plain view exception to the warrantless arrest rule did not apply. When the officer approached the defendant’s vehicle from the passenger side to ask about an old and worn temporary tag, he inadvertently noticed several whole papers in plain view on the passenger seat. The...
Applying Gant (discussed immediately above) and holding that the trial court erred by denying the defendant’s motion to suppress evidence (papers) obtained during a warrantless search of his vehicle subsequent to his arrest for driving with an expired registration and failing to notify...
In a child sexual assault case, prior statements of the victim made to an expert witness regarding “grooming” techniques employed by the defendant were properly admitted to corroborate the victim’s trial testimony. Although the prior statements provided new or additional information, they tended...
Following Kilby (discussed immediately above), on similar facts.
Holding that the defendant willfully obstructed and delayed court proceedings by refusing to cooperate with his appointed attorneys and insisting that his case would not be tried; he thus forfeited his right to counsel. The defendant’s lack of cooperation lead to the withdrawal of both of his...
Holding, over a dissent, that there was an inadequate factual basis for some of the pleaded-to felonies. While the transcript of plea addressed 68 felony charges plus a habitual felon indictment, the trial court relied solely on the State’s factual basis document, which addressed only 47 charges...
In a case charging offenses under G.S. 14-27.7A (statutory rape or sexual offense of person who is 13, 14, or 15 years old), the court held that the trial judge misapplied the “birthday rule” (a person reaches a certain age on his or her birthday and remains that age until his or her next...
In a case in which there was a dissenting opinion, the court rejected the defendant’s argument that the trial court erred in imposing SBM when SBM was not addressed in the defendant’s plea agreement with the State.
The trial court erred in admitting 404(b) evidence obtained as a result of an earlier arrest when the earlier charges were dismissed for insufficient evidence and the probative value of the evidence depended on the defendant’s having committed those offenses. The court distinguished cases where...
A detailed tip by an individual, who originally called the police anonymously but then identified himself and met with the police in person, was sufficiently corroborated by the police to establish probable cause to arrest the defendant.
The trial court did not err in accepting seemingly inconsistent verdicts of guilty of misdemeanor assault with a deadly weapon and not guilty of possession of a firearm by a felon.
Holding, over a dissent, that plain error occurred in a child sex case when the trial court admitted the testimony of a child protective services investigator. The investigator testified that the Department of Social Services (DSS) had “substantiated” the defendant as the perpetrator and that...
There were no grounds providing reasonable and articulable suspicion for extending a vehicle stop once the original purpose of the stop (suspicion that the driver was operating the vehicle without a license) had been addressed. After the officer verified that the driver had a valid license, she...
A passenger in a vehicle that has been stopped by the police has standing to challenge the constitutionality of the vehicle stop.
Although a trial court has authority under G.S. 15A-1344(d) to modify conditions of probation, modifications only may be made after notice and a hearing, and if good cause is shown. Although one modification made in this case was permissible as a clerical change, a second modification was...
Use of a mannequin’s head and a newly-purchased couch to refute the defendant’s version of the events on the day she shot her husband was properly allowed as a demonstration. Because the evidence did not constitute an experiment, the State did not have to show that the circumstances were...
Distinguishing McKoy (discussed immediately above), the court held that juvenile petitions alleging that the juvenile committed first-degree sexual offense were defective because they failed to name a victim. The petitions referenced the victim as “a child,” without alleging the victims...
Because the restraint of the victim did not go beyond that inherent in the accompanying robbery, the kidnapping conviction could not stand. The victim was not moved to another location or injured and was held for only 30 minutes.
At a recommitment hearing for an involuntarily-committed respondent based on a verdict of not guilty by reason of insanity, the trial court may order conditional release as an alternative to unconditional release or recommitment.
Following State v. White, 84 N.C. App. 111 (1987), and holding that under the pre-December 1, 2006 version of G.S. 20-139.1(b3), the trial court did not err by admitting evidence of the lesser of the defendant’s sequential, consecutive Intoxilyzer results, even though the defendant...
Evidence of that the defendant drove with a revoked license after his arrest for several crimes, including driving while license revoked, which lead to the prosecution at issue, was admissible under Rule 404(b) to show that he knowingly drove with a revoked license.
A defendant may not be sentenced for both felony death by vehicle and impaired driving arising out of the same incident. However, a defendant may be sentenced for both involuntary manslaughter and impaired driving.
Although the trial judge did not enter a formal order extending the session, the judgment was not null and void. The trial judge repeatedly announced that it was recessing court and the defendant made no objection at the time. On these facts there was sufficient compliance with G.S. 15-167.
The trial judge did not err by allowing officers to give lay opinion testimony that the cocaine at issue was packaged as if for sale and that the total amount of money and the number of twenty-dollar bills found on the defendant were indicative of drug sales. The officers’ testimony was based on...
The trial judge did not err by instructing on flight where the defendant failed to appear for a court date in the case.
A defendant may not be sentenced for both felony death by vehicle and impaired driving arising out of the same incident. However, a defendant may be sentenced for both involuntary manslaughter and impaired driving.
A laboratory technician who testified that substances found by law enforcement officers contained cocaine was properly qualified as an expert even though she did not possess an advanced degree.
A witness testified at trial that the defendant made the following statement about the victim during the robbery: “I hope this spic is dead.” The court rejected the defendant’s argument that the evidence should have been excluded because of a discovery violation. The State provided information...
Where the State’s evidence in this murder case showed both motive and opportunity, it was sufficient to survive a motion to dismiss on the issue of whether the defendant was the perpetrator.
In a prosecution under G.S. 14-288.8 (manufacture, assembly, possession, storage, transportation, sale, purchase, delivery, or acquisition of weapon of mass death and destruction), the State is not required to prove that the defendant knew of the physical characteristics of the weapon that made...
A defendant may not be convicted of second-degree murder and accessory after the fact to first-degree murder. The offenses are mutually exclusive.
A defendant may not be sentenced for both involuntary manslaughter and felony death by vehicle arising out of the same death. A defendant may not be sentenced for both felony death by vehicle and impaired driving arising out of the same incident. However, a defendant may be sentenced for both...
The clerk was not required to question the jurors separately about each of the two offenses; the polling was proper when the clerk posed one question about both offenses, to each juror individually.
Pretrial photographic line-ups were not suggestive, on the facts.
Kidnapping requires a live victim.
The defendant did not have implied consent to enter an office within a video store. Even if the defendant had implied consent to enter the office, his act of theft therein rendered that implied consent void ab initio.
The defendant’s stipulation that certain out-of-state convictions were substantially similar to specified North Carolina offenses was ineffective. However, the defendant could stipulate that the out-of-state convictions occurred and that they were either felonies or misdemeanors under the other...
The defendant gave implied consent to the recording of three-way telephone calls in which he participated while in an out-of-state detention center. Although the defendant did not receive a recorded message when the three-way calls were made informing him that the calls were being monitored and...
The trial court did not err in ordering that an indigent defendant reimburse the State for the costs of providing a transcript of the defendant’s prior trial as a condition of post-release supervision.
No seizure occurred when officers approached the defendant and asked to speak with him regarding a shooting. The defendant submitted to questioning without physical force or show of authority by the police; the officers did not raise their weapons or activate their blue lights.
The trial court did not err in denying the defendant’s motion to dismiss a charge of failure to notify of a change of address within 10 days where the evidence showed, at a minimum, that the defendant ceased to reside at his last listed reported address on or before August 10th, but...
The trial judge erred by overruling defense counsel’s objection to a question posed by the prosecutor to a State’s witness alluding to the fact that a superior court judge had found that there was probable cause to search the defendant. The court reiterated the rule that a trial judge’s legal...
The trial judge erred in concluding that the defendant required the highest possible level of supervision and monitoring when the Department of Correction risk assessment found that the defendant posed only a moderate risk and trial judge made no findings of fact that would support its...
The trial court erred in denying the defendant’s motion to dismiss kidnapping charges where the removal and restraint of the victims was inherent in a charged robbery. Distinguishing cases where the victims were bound and physically harmed, the court noted that in this case, the victims only...
The trial court did not abuse its discretion by denying the defendant’s motion to renew his suppression motion in light of an officer’s trial testimony. There was no additional relevant information discovered during trial that required reconsideration of the motion to suppress.
When a mistrial was declared, the judge retrying the case was not bound by rulings made by the judge who presided over the prior trial. Here, the rulings pertained to the admissibility of 404(b) evidence and complete recordation of the trial.
There was sufficient evidence that a 70-year-old victim suffered from a protracted condition causing extreme pain supporting a charge of assault inflicting serious bodily injury when the facts showed: the victim had dried blood on her lips and in her nostrils and...
Officers had implied consent to search a residence occupied by the defendant and his mother. After the defendant’s mother told the officers that the defendant had a gun in the residence, the defendant confirmed that to be true and told the officers where it was located. The defendant and his...
The state’s expert pediatrician was improperly allowed to testify that his findings were consistent with a history of anal penetration received from the child victim where no physical evidence supported the diagnosis. The expert was properly allowed to testify that victim’s history of vaginal...
There was sufficient evidence to survive a motion to dismiss where it showed that the defendant gave the child a letter containing sexually graphic language for the purpose of soliciting sexual intercourse and oral sex for money. Additionally, the jury could reasonably infer that the defendant’s...
There was sufficient evidence to establish the aggravating factor that the defendant had previously been adjudicated delinquent for an offense that would be a B2 felony if it had been committed by an adult. The evidence of that prior adjudication was a Transcript of Admission from the juvenile...
Although a kidnapping indictment need not allege the felony intended, if it does, the State is bound by that allegation. Here, the indictment alleged confinement and restraint for the purpose of committing murder, but the evidence showed that the confinement or restraint was for the purpose of a...
The defendant’s use of violence was concomitant with and inseparable from the theft of the property from a store where the store manager confronted the defendant in the parking lot and attempted to retrieve the stolen property, at which point the defendant struck the...
The trial court erred when it allowed the State to question its witness on direct examination about whether she had told the truth.
The trial court did not err in admitting the State’s expert witness’s testimony that the results of his examination of the victim were consistent with a child who had been sexually abused; the expert did not testify that abuse had in fact occurred and did not comment on the victim’s credibility...
The trial court did not err by failing to instruct on accident. The defense is unavailable when the defendant was engaged in misconduct at the time of the killing. Here, the defendant was engaged in misconduct—he broke into a home with the intent to commit robbery and the killing occurred during...
In a trial for assault on a law enforcement officer and resisting and obstructing, the trial court properly admitted evidence relating to the defendant’s earlier domestic disturbance arrest. The same officer involved in the present offenses handled the earlier arrest, and at the time had told...
Although the probation report might have been ambiguous regarding the condition allegedly violated, because the report set forth the specific facts at issue (later established at the revocation hearing), the report gave the defendant sufficient notice of the alleged violation, as required by G.S...
An indictment charging felony child abuse by sexual act under G.S. 14-318.4(a2) is not required to allege the particular sexual act committed. Language in the indictment specifying the sexual act as anal intercourse was surplusage.
The trial court did not abuse its discretion in admitting a witness’s refreshed recollection. The witness’s testimony was not merely a recitation of the refreshing memorandum. The witness testified to some of the relevant events before being shown a transcript of his police interview. After...
Committing a violation of G.S. 20-138.1 (impaired driving) constitutes culpable negligence as a matter of law sufficient to establish the requisite intent for assault with a deadly weapon inflicting serious injury.
Following Bare (discussed above).
An officer had reasonable suspicion to frisk the defendant after stopping him for a traffic violation. Even though the officer could see something in the defendant’s clenched right hand, the defendant stated that he had nothing in his hand; the defendant appeared to be attempting to physically...
There was sufficient evidence of confinement where the defendant entered a trailer, brandished a loaded shotgun, and ordered everyone to lie down. It was immaterial that the victim did not comply with the defendant’s order to lie down.
Because SBM is civil in nature, its imposition does not violate a defendant’s right to be free from double jeopardy.
When taking a plea, a judge is not required to inform a defendant of possible imposition of sex offender SBM. Such a statement is not required by G.S. 15A-1022. Nor is SBM a direct consequence of a plea.
In child sexual abuse case, it was error to allow the state’s expert, a child psychologist, to testify that he believed that the victim had been exposed to sexual abuse. The expert’s statement pertained to the victim’s credibility; it apparently was unsupported by clinical evidence.
In a child sexual abuse case, 404(b) evidence that the defendant abused two witnesses 21 and 31 years ago was improperly admitted. In light the fact that the prior incidents were decades old, more was required in terms of similarity than that the victims were young girls in the defendant’s care...
No fatal variance occurred when a juvenile petition alleged that the juvenile assaulted the victim with his hands and the evidence established that he touched her with an object.
No Harbison error occurred in this murder case where the defendant consented, on the record, to counsel’s strategy of admitting guilt.
When taking a plea, a judge is not required to inform a defendant of possible imposition of sex offender satellite-based monitoring (SBM). Such a statement is not required by G.S. 15A-1022. Nor is SBM a direct consequence of a plea.
Anonymous informant’s tips combined with officers’ corroboration provided reasonable suspicion for a stop. The anonymous tips provided specific information of possessing and selling marijuana, including the specific location of such activity (a shed at the defendant's residence). The tips were...
An instruction on transferred intent was proper in connection with a charge of attempted first-degree murder of victim B where the evidence showed that B was injured during the defendant’s attack on victim A, undertaken with a specific intent to kill A.
County Board of Education policy mandating random, suspicionless drug and alcohol testing of all Board employees violated the N.C. Constitutional protection against unreasonable searches and seizures. The policy could not be justified as a “special needs search.” The court determined that the...
G.S. 20-179(a1)(1) (requiring the state, in an appeal to superior court, to give notice of grossly aggravating factors) only applies to offenses committed on or after the effective date of the enacting legislation, December 1, 2006.
Holding, in a case decided under the old version of G.S. 15A-1344(f), that the trial court lacked jurisdiction to hold a probation revocation hearing where the state failed to make reasonable efforts to notify the defendant and to hold the hearing before the period of probation expired.
The defendant and an accomplice, both female, assaulted a male with fists and tree limbs. The two females individually, but not collectively, weighed less than the male victim, and both were shorter than him. They both were convicted of assault with a deadly weapon inflicting serious injury. The...
The evidence was sufficient of a sexual offense where the child victim testified that the defendant reached beneath her shorts and touched between “the skin type area” in “[t]he area that you pee out of” and that he would rub against a pressure point causing her pain and to feel faint. A medical...
The defendant could be convicted of accessory after the fact to assault with a deadly weapon with intent to kill inflicting serious injury even if the principal pled guilty to a lesser offense of that assault.
The state’s notice of appeal to superior court of the district court’s preliminary notice of its intention to grant the defendant’s motion to suppress in a DWI case was properly perfected. The court cited Fowler (discussed above), and noted that the procedures in G.S. 15A-1432(b) are a...
An audio recording can be admitted under the Rule 803(5) exception for recorded recollection. However, the statement at issue was not admissible under this exception because the witness did not recall making the statement and when asked whether she fabricated it, the witness testified that...
Trial judge was not required to view a DVD before ruling on a Rule 403 objection to portions of an interview of the defendant contained on it. Trial judge did not abuse his discretion by refusing to redact portions of the DVD. However, the court “encourage[d] trial courts to review the content...
Ordering a new trial because of a defective verdict form. On the verdict form, the jury answered “Yes” to each of these questions: “Did the defendant possess cocaine, a controlled substance, with the intent to sell or deliver it? Did the defendant sell cocaine, a controlled substance, to Officer...
The following conditions went beyond requirements to obey the law and transformed a PJC into a final judgment: abide by a curfew, complete high school, enroll in an institution of higher learning or join the armed forces, cooperate with random drug testing, complete 100 hours of community...
Restitution of $510 was not supported by the evidence. The prosecutor had presented a restitution worksheet stating that the victim sought $510 in restitution. The worksheet was not supported by documentation, the victim did not testify, and the defendant did not stipulate to the amount. The...
Once a witness denies having made a prior inconsistent statement, a party may not introduce the prior statement in an attempt to discredit the witness because the prior statement concerns only a collateral matter, i.e., whether the statement was ever made. Here, the defendant cross-examined a...
A defendant, charged with DWI, made a pretrial motion in district court under G.S. 20-38.6(a) alleging that there was no probable cause for his arrest. The district court entered a preliminary finding granting the motion under G.S. 20-38.6(f) and ordering dismissal of the charge. When the state...
Fatal variance in larceny indictment alleging that the stolen gun belonged to an individual named Minear and the evidence showing that it belonged to and was stolen from a home owned by an individual named Leggett. Minear had no special property interest in the gun even though the gun was kept...
The evidence was sufficient to support a charge of kidnapping where the restraint used against the victim was not inherent in the assaults committed. The defendant kept the victim from leaving her house by repeatedly striking her with a bat. When she was able to escape, he chased her, grabbed...
Reasonable suspicion existed for a stop. An assault victim reported to a responding officer that the perpetrator was a tall white male who left in a small dark car driven by a blonde, white female. The officer saw a small, light-colored vehicle travelling away from the scene; driver was a blonde...
The trial court did not err by denying the defendant’s request to submit the lesser offense of assault on a female when the defendant was charged with rape using the statutory short form indictment. The defense to rape was consent. The defendant argued on appeal that the jury could have found...
Rape and sexual offense indictments were not fatally defective when they identified the victim solely by her initials, “RTB.” The defendant was not confused regarding the victim’s identity; because the victim testified at trial and identified herself in open court, the defendant was protected...
Neither an anonymous tip nor an officer’s observation of the vehicle weaning once in its lane provided reasonable suspicion to stop the vehicle in this DWI case. At approximately 7:50 p.m., an officer responded to a dispatch concerning “a possible careless and reckless, D.W.I., headed towards...
Neither an anonymous tip nor an officer’s observation of the vehicle weaving once in its lane provided reasonable suspicion to stop the vehicle in this DWI case. At approximately 7:50 p.m., an officer responded to a dispatch concerning “a possible careless and reckless, D.W.I., headed towards...
In a case in which the defendant was convicted of kidnapping and rape, the kidnapping conviction could stand where the confinement and restraint of the victim went beyond the restraint inherent in the commission of the rape. The defendant threatened the victim with a gun while she was in his car...
Assault is not a lesser-included offense of sexual battery.
Assault is not a lesser-included offense of sexual battery.
There was sufficient evidence of constructive possession to sustain conviction for possession of a firearm by a felon.
There was sufficient evidence of constructive possession of cocaine for purposes of charges of trafficking by possession, possession with intent, and possession of paraphernalia.
Exigent circumstances supported officers’ warrantless entry into a mobile home to arrest the defendant pursuant to an outstanding warrant. The officers knew that the defendant previously absconded from a probation violation hearing and thus was a flight risk, that defendant had previously...
There was insufficient evidence to establish that the defendant “maintained” the dwelling. Evidence showed only that the defendant had discussed, with the home’s actual tenant, taking over rent payments but never reached an agreement to do so; a car, similar to defendant’s was normally parked at...
Assault is not a lesser-included offense of sexual battery.
A wildlife enforcement officer had authority under G.S. 113-136(d) to stop the plaintiff’s vehicle for impaired driving and to arrest her for that offense. Driving while impaired satisfies the statutory language, “a threat to public peace and order which would tend to subvert the authority of...
The trial court did not abuse its discretion in ordering the removal of four spectators in a gang-related murder trial. Jurors had expressed concern for their safety, as jurors had in the first trial of this case. The trial court found that the spectators were talking in the courtroom in...
A male juvenile’s entry into a school’s female locker room with a door marked “Girl’s Locker Room” was sufficient evidence to support the juvenile’s adjudication of second-degree trespass. The sign was reasonably likely to give the juvenile notice that he was not authorized to go into the locker...
In a murder case, evidence of an assault committed by the defendant two days before the murder was admissible to show identity when ballistics evidence showed that the same weapon was used in both the murder and the assault. The court rejected the defendant’s argument that the probative value of...
Double jeopardy prohibited convictions of both accessory after fact to first-degree murder and accessory after the fact to first-degree kidnapping when the jury could have found that accessory after fact of first-degree murder was based solely on kidnapping under the felony murder rule. The jury...
The trial court erred in ordering restitution to the murder victims’ families when there was no direct and proximate causal link between the defendant’s actions and harm caused to those families. The defendant was convicted as an accessory after the fact to murder and none of the defendant’s...
The trial court erred in not exercising its discretion when denying the jury’s request for transcripts of testimony of the victim and the defendant.
No fatal variance between an indictment charging injury to real property and the evidence at trial. The indictment incorrectly described the lessee of the real property as its owner. The indictment was sufficient because it identified the lawful possessor of the property.
No reasonable suspicion existed for the stop. Around 4:00 p.m., an officer followed the defendant’s vehicle for about 1 1/2 miles. After the officer saw the defendant’s vehicle swerve to the white line on the right side of the traffic lane three times, the officer stopped the vehicle for...
Rule 702(a1) obviates the state’s need to prove that the horizontal gaze nystagmus testing method is sufficiently reliable.
Remanding for a determination of whether the officer had probable cause to seize a crack cocaine cookie during a frisk, where the trial court improperly applied a standard of reasonable suspicion to the plain feel doctrine.
An officer had reasonable suspicion to stop and frisk the defendant. The officer saw the defendant, who substantially matched a “be on the lookout” report following a robbery, a few blocks from the crime scene, only minutes after the crime occurred and travelling in the same direction as the...
The trial court erred by denying the defendant the opportunity to use his one remaining peremptory challenge after voir dire was reopened. After the jury was impaneled, the judge learned that a seated juror had attempted to contact an employee in the district attorney’s office before impanelment...
An officer had reasonable suspicion to stop and frisk the defendant. The officer saw the defendant, who substantially matched a “be on the lookout” report following a robbery, a few blocks from the crime scene, only minutes after the crime occurred and travelling in the same direction as the...
An officer had reasonable suspicion to stop and frisk the defendant. The officer saw the defendant, who substantially matched a “be on the lookout” report following a robbery, a few blocks from the crime scene, only minutes after the crime occurred and travelling in the same direction as the...
Reasonable suspicion supported prolonging the detention of the defendant after the officer returned his license and the car rental contract and issued him a verbal warning for speeding. The defendant misidentified his passenger and was nervous. Additionally other officers had informed the...
By telling the officer that he had to ask the passenger for permission to search the vehicle, the defendant-driver waived any standing that he might have had to challenge the passenger’s consent to the search.
Following Maready and holding that there was reasonable suspicion to stop the defendant’s vehicle. At 2:55 am, a man called the police and reported that his car was being followed by a man with a gun. The caller reported that he was in the vicinity of a specific intersection. The caller...
There was no ex post facto violation in determining the defendant’s prior record level when prior record level points were calculated using the classification of the prior offense at the time of sentencing (Class G felony) rather than the lower classification in place when the defendant was...
The trial judge did not err under Rule 412 in excluding evidence of the victim’s prior sexual activity with a boy named C.T. and with her boyfriend. As to the activity with C.T., the defendant failed to offer evidence that it occurred during the in camera hearing (when the victim denied having...
The trial court erred in allowing the state to question the defendant about his failure to make a statement to law enforcement and to reference the defendant’s silence in closing argument.
A violation of the Vienna Convention on Consular Relations (requiring notification to arrested foreign national of right to have consul of national’s country notified of arrest) does not require suppression of a confession.
In a child sex case, the defendant proffered evidence of a third person’s sexual abuse of the victim as an alternative explanation for the victim’s physical trauma. The trial judge properly excluded this evidence under Rule 412(b)(2) because it did not show that the third person’s abuse involved...
Officer’s testimony relating an incident of digital penetration described to him by the victim was properly admitted to corroborate victim’s testimony, even though the victim did not mention the incident in her testimony. The victim testified that the first time she remembered the defendant...
The police did not impermissibly interrogate the defendant after he requested a lawyer by offering to allow him to speak with his grandmother by speaker phone. Once the defendant stated that he wished to have a lawyer, all interrogation ceased. However, before leaving for the magistrate’s office...
The trial court did not err in denying the defendant’s motion to withdraw his plea before sentencing; no fair and just reason supported the motion.
The trial judge did not err under Rule 403 in excluding evidence of the victim’s alleged false accusation that another person had raped her. The circumstances surrounding that accusation were different from those at issue in the trial and the evidence could have caused confusion.
Conversation between the defendant and his lawyer was not privileged because the defendant told his lawyer the information with the intention that it be conveyed to the prosecutor. At a hearing on the defendant’s motion to withdraw his guilty plea, the defendant’s former attorney, who had...
The defendant was convicted of attempted felony larceny and then pled guilty to being a habitual felon. The defendant previously had been convicted of felony larceny. That the judge properly found one point under G.S. 15A-1340.14(b)(6) (all elements of current offense are included in offense for...
The defendant’s consent to search his residence was voluntary, even though it was induced by an officer’s false statements. After receiving information that the defendant was selling marijuana and cocaine from his apartment, an officer went to the apartment to conduct a knock and talk. The...
No fatal variance between the period of time alleged in the indictment and the evidence introduced at trial. The defendant was indicted on six counts of statutory rape: two counts each for the months of June, August, and September 2004. Assuming that the victim’s testimony was insufficient to...
No due process violation resulted from the delay between commission of the offenses (2000) and issuance of the indictments (2007). Although the department of social services possessed the incriminating photos and instituted an action to terminate parental rights in 2001, the department did not...
The trial judge did not err by refusing to instruct on entrapment. The defendant was convicted of soliciting a child by computer with intent to commit an unlawful sex act. The “child” was a law enforcement officer pretending to be a 14 year old in an adults-only Yahoo chat room. The court...
There was sufficient evidence of an intent to kill and the weapon used was deadly as a matter of law. The defendant was convicted of assault with a deadly weapon with intent to kill inflicting serious injury and other offenses. There was sufficient evidence of an intent to kill where the...
The doctrine of recent possession applied to a video camera and a DVD player found in the defendant’s exclusive possession 21 days after the break-in.
The trial judge erred in allowing a detective to offer lay opinion testimony regarding whether what was depicted in crime scene surveillance videos was consistent with the victim’s testimony. For example, the detective was impermissibly allowed to testify that the videotapes showed a car door...
The defendant and his accomplice discussed intentionally forcing drivers off the road in order to rob them and one of them then deliberately threw a very large rock or concrete chunk through the driver’s side windshield of the victim’s automobile as it was approaching at approximately 55 or 60...
The trial judge erred under Rule 404(a)(2) in allowing the state to offer evidence of the victim’s good character. The court concluded that the defense had not offered evidence of the victim’s bad character, even though defense counsel had forecast evidence of the victim’s bad character in an...
The trial court did not abuse its discretion in granting the state’s motion to join ten counts of third-degree sexual exploitation of a minor and ten counts of second-degree sexual exploitation of a minor with an appeal for trial de novo of misdemeanor peeping.
The trial judge erred in denying the defendant final jury argument. The defendant did not introduce evidence under Rule 10 of the General Rules of Practice when cross-examining an officer. Defense counsel referred to the contents of the officer’s report when cross-examining the officer. However...
A stipulation signed by the prosecutor and defense counsel in Section III of AOC-CR-600 (prior record level worksheet) supported the judge’s finding regarding prior record level. The court distinguished a prior case on grounds that the current version of the form includes a stipulation to prior...
There was sufficient evidence to establish that the defendant used a firearm in an armed robbery case. The evidence showed that the defendant and an accomplice entered a store and that one of them pointed what appeared to be a silver handgun at the clerk. When later arresting the accomplice at a...
An armed robbery victim’s identification of the defendant in the courtroom did not violate due process. When contacted prior to trial for a photo lineup, the victim had refused to view the pictures. The victim saw the defendant for the first time since the robbery at issue when the victim saw...