The defendant worked full-time at Knightdale High School, initially as an In-School Suspension teacher and then as a Physical Education teacher. Although not certified as a teacher, he worked the same hours as a certified teacher, which included a regularly scheduled planning period. During his time teaching at the school, the defendant met a minor, D.F., a student at the school. On October 29, 2014, D.F. went to the defendant’s home and later alleged the two engaged in sexual activity.

The defendant was indicted for two counts of engaging in sexual activity with a student pursuant to G.S. 14-27.7. At the close of the State’s evidence, defense counsel made a motion to dismiss based on insufficient evidence, asserting that the State’s evidence was conflicting. The trial court denied the motion. At the end of all the evidence, defense counsel renewed the motion to dismiss, asserting that there was no physical evidence. The trial court again denied the motion, and the defendant was ultimately convicted of two counts of sexual activity with a student.

(1) On appeal, the defendant argued that (1) the evidence at trial did not establish that he was a “teacher” within the meaning of G.S. 14-27.7, and (2) alternatively, there was a fatal variance between the indictment and proof at trial since the indictment alleged that he was a “teacher,” but his status as a substitute teacher made him “school personnel” under G.S. 14-27.7(b). The Court of Appeals concluded that the defendant failed to preserved either argument for appellate review, reasoning that because the defendant’s motions to dismiss “focused on the veracity of D.F.’s testimony and the lack of physical evidence” that sexual conduct had occurred, the defendant preserved a sufficiency of the evidence argument for only that specific element. The Court of Appeals also concluded that the fatal variance argument was not preserved because it was not expressly presented to the trial court.

At the time that the Court of Appeals decided this case, the Supreme Court has not addressed the issue of when a motion to dismiss preserves all sufficiency of the evidence issues for appellate review. Subsequently, in State v. Golder, the Court held that “Rule 10(a)(3) provides that a defendant preserves all insufficiency of the evidence issues for appellate review simply by making a motion to dismiss the action at the proper time.” 374 N.C. 238 (2020). The Court held that because the defendant here made a general motion to dismiss at the appropriate time and renewed that motion to dismiss at the close of the evidence., his motion properly preserved all sufficiency of the evidence issues.

(2) On the merits of the case, the defendant argued that there was no substantial evidence that he was a “teacher” under the statute. G.S. 14-27.7(b) (2013) provides: “For purposes of this subsection, the terms “school”, “school personnel”, and “student” shall have the same meaning as in G.S. 14-202.4(d),” which in turn refers to G.S. 115C-332. The latter statute provides that “school personnel” includes substitute teachers, driving training teachers, bus drivers, clerical staff, and custodians. The Court determined that it was “evident that the General Assembly intended to cast a wide net prohibiting criminal sexual conduct with students by any adult working on school property” and that “a person’s categorization as a ‘teacher’ should be based on a common-sense evaluation of all of the facts of the case, not a hyper-technical interpretation based solely on the individual’s title.”

Despite his lack of certification, defendant was at the school on a long-term assignment, an employee of Wake County Public Schools, and held to the same standards as a certified teacher. Defendant taught at the school daily, had a planning period, and had full access to students as any certified teacher would. The only difference between the defendant and other teachers was his title based on his lack of a teaching certificate at that time. The Court held that the defendant was correctly deemed a teacher in this case and the trial court properly denied the defendant’s motion to dismiss.

The defendant was convicted of trafficking in opium or heroin. He argued on appeal that the trial court committed plain error by allowing the State to introduce into evidence the drugs found in his vehicle. The Court of Appeals concluded that the defendant waived appellate review of this claim because he did not move before the trial court to suppress evidence of the hydrocodone tablets and there was no suppression hearing. In such circumstances, the appellate court lacks the fully developed record necessary to conduct plain error review.

The Court of Appeals further held that the trial court improperly imposed attorney’s fees and an attorney-appointment fee against Defendant without providing him with notice and an opportunity to be heard. Thus, the court vacated the civil judgments imposing attorney’s fees and the attorney-appointment fee, and remanded for further proceedings.

(1) At his trial for habitual DWI, the defendant took the stand, denied driving, and admitted his prior DWI convictions in explaining why he did not drive on the night in question and why, based on his past interactions with law enforcement, he did not speak to the arresting officers. On cross-examination, the State asked the defendant about the offense, date, and place of each of those convictions. The defendant asked the trial judge to instruct the jury pursuant to North Carolina Pattern Jury Instruction 105.40, which instructs that the jury should not consider a defendant’s prior convictions as evidence of the defendant’s guilt in the current case. The trial judge refused to give the instruction. Relying on State v. Jackson, 161 N.C. App. 118 (2003), the Court of Appeals found no error. Per that opinion, a defendant is not entitled to a special instruction instructing the jury to consider a defendant’s testimony about prior convictions for purposes of the defendant’s credibility only, where the defendant initially offers the testimony on direct examination. The Court held that the State’s cross-examination of the defendant in this case was limited and did not constitute sufficient impeachment to require the instruction. The Court rejected the defendant’s argument that it should reconsider Jackson, finding that it was bound by the prior decision. (2) Before his first trial on the habitual DWI charge, the defendant moved for and the trial judge conducted an in camera review of the arresting officers’ personnel records. The trial judge denied release, finding no favorable and material evidence, and the Court of Appeals upheld the denial in an unpublished opinion. On appeal in this case, the defendant asked the Court of Appeals to review the records, which the trial judge had placed under seal at the first trial. The Court of Appeals held that the defendant failed to preserve the issue for appeal, having failed to make any motion asking the trial judge to review the records before his second trial. The Court stated that a mistrial has the legal effect of no trial. Therefore, the defendant could not rely on a motion made at his first trial to preserve issues for appeal at his later trial.

The defendant was charged with solicitation to commit first-degree murder after he asked someone he met through a mutual acquaintance (“Edwards”) to murder his wife for money. After repeated requests from the defendant over the next few days, Edwards contacted law enforcement and assisted their investigation by wearing recording equipment at a subsequent meeting with the defendant to discuss details of the murder. The defendant was indicted for solicitation to commit first-degree murder, and after being convicted at a jury trial he was sentenced for a Class C offense. On appeal, the defendant argued that he was sentenced incorrectly because the jury was only instructed on solicitation to commit “murder.” The jury was not asked to make any special findings regarding the level of malice it found regarding the crime solicited. Therefore, the defendant argued that he should have been convicted of soliciting only the lowest possible level of any form that offense (second-degree murder punished as Class B2 offense). Pursuant to G.S. 14-2.6(a), a solicitation to commit a B2 offense would be punished as a Class D felony, rather than as Class C felony for soliciting a Class A or B1 offense. The appellate court disagreed, noting that “Defendant creatively sidesteps the fact that he was not charged with murder, but with solicitation to commit murder. The jury was not required to find any of the elements of murder. As previously explained, one may be guilty of solicitation regardless of whether the solicited crime—murder, in this case—actually occurs. […] The crime was in the asking.” Rather than alleging a sentencing error, the defendant’s appeal was really an argument against the sufficiency of the jury instructions. However, since the defendant did not object and raise that issue at trial, nor did he allege plain error on appeal, the issue was not properly before the court. “In that Defendant’s entire appeal was predicated on an unpreserved issue and he failed to request plain error review, his conviction and subsequent sentence shall remain undisturbed.”

In this drug case, the defendant failed to preserve her argument that the trial court erred by failing to sua sponte conduct a hearing to confirm that the defendant’s in-custody statements to law enforcement were knowing and voluntary. The defendant did not move to suppress the statements before or at any time during trial. When the State first asked about the statements at trial, defense counsel stated “objection.” The trial court overruled the objection, and defense counsel said nothing more. When no exception to making a motion to suppress before trial applies, a defendant’s failure to make a pretrial motion to suppress waives any right to contest the admissibility of evidence at trial on constitutional grounds. Thus, the trial court properly overruled the defendant’s objection as procedurally barred.

Because the defendant failed to present his constitutional double jeopardy argument before the trial court, it was not properly preserved for appellate review. The defendant was found guilty of, among other things, five counts of possession of a gun on educational property. On appeal the defendant argued that the trial court erred by entering judgment on five counts of possession of a gun on educational property, asserting that double jeopardy bars entry of judgment on more than one count when there is simultaneous possession of guns. The court held that the issue was not preserved and declined the defendant’s request that it invoke Rule 2 of the Rules of Appellate Procedure to consider the issue.

On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 806 S.E.2d 682 (2017), the court modified and affirmed the decision below, holding that the defendant waived her Eighth Amendment sentencing argument by failing to raise it before the sentencing court and that although her non-constitutional sentencing issues were preserved for review despite her failure to object at trial, they are without merit. The defendant was convicted of 3 counts of drug trafficking; she was sentenced to a minimum of 70 months in prison on each count, with the sentences for two counts to be served concurrently and the third sentence to be served consecutively to the first two. The defendant appealed asserting, in relevant part, that the sentencing judge improperly overruled another judge’s safekeeping order; that the trial court abused his discretion in imposing consecutive sentences on an elderly first offender for a single drug transaction; and that the sentences are grossly disproportionate in violation of the Eighth Amendment. The Court of Appeals found no error, concluding that the defendant failed to preserve her arguments as required by Appellate Rule 10(a)(1). The Supreme Court allowed discretionary review.

          The Supreme Court noted that, as a general matter, Rule 10 requires parties to take action to preserve an issue for appeal. It further noted its decision in State v. Canady, 330 N.C. 398, 410 S.E.2d 875 (1991), inspired a series of decisions by the Court of Appeals holding that Rule 10(a)(1) does not apply to sentencing errors. The court determined that “[t]o derive such a categorical rule from Canady, however, one must ignore the opinion’s rationale.” It explained that in Canady, it determined that the purpose of the rule is to require a party to call an issue to the trial court’s attention before the party can assign error to the matter on appeal. Canady determined that the rule discourages gamesmanship; a party cannot simply allow something to happen at trial as a matter of trial strategy and then assign error to the matter if the strategy does not pan out. Rather than create a categorical rule, the court explained that in Canady it found that the danger of gamesmanship was not present and held that no contemporaneous objection was required to preserve the issue for appellate review in that case. Here, defense counsel asked that all three sentences be consolidated, noting the defendant’s advanced age, poor health, and clean criminal record. The judge however consolidated only 2 of the 3 sentences. Here, the sentencing court knew that the defendant sought the minimum possible sentence, and the defendant was not required to voice to contemporaneous objection to preserve this issue for appellate review. The court further found that the defendant’s sentencing issues were preserved by statute. Specifically, G.S. 15A-1446(d) provides that certain issues are appealable without preservation, including an argument that the sentence imposed was unauthorized at the time, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as a matter of law.

          Having found that the Court of Appeals erred by declining to address the defendant’s sentencing arguments, the court went on to find them to be meritless. With respect to the safekeeping order, neither that order nor the judge’s oral remarks when it was imposed indicate that the judge intended to retain jurisdiction over the matter or to delay sentencing; in fact his oral remarks and written order indicate awareness that the defendant might be sentenced by some other judge. The court also rejected the defendant’s argument that the trial court abused its discretion in imposing her sentence and her suggestion that the trial court must have been influenced by the defendant’s decision to take her case to trial. The court found that this conclusory accusation lacked any support in the record.

         Having found that the defendant’s non-constitutional sentencing issues were preserved without contemporaneous objection consistent with Canaday and G.S. 15A-1446(d), the court found that the defendant’s constitutional argument was not so preserved. Rule 14(b)(2) of the Rules of Appellate Procedure requires that a constitutional issue must be timely raised in the trial court in order to be preserved for appellate review. Because the defendant failed to argue to the sentencing court that the sentence imposed violated the Eighth Amendment, she may not raise that argument on appeal.

Because the defendant failed to raise at trial the constitutional argument that prosecutorial misconduct deprived him of a fair trial, it was not preserved for appellate review.

In this drug case the defendant was not entitled to appellate review of whether the trial court erroneously admitted hearsay evidence. The defendant failed to demonstrate that any “judicial action” by the trial court amounted to error where he not only failed to object to admission of the statement, but also expressly consented to its admission. Even if error occurred, G.S. 15A-1443(c) (a defendant is not prejudiced by an error resulting from his own conduct) precludes a finding of prejudice. Here, by asking about the statement during cross-examination of the State’s witness, defense counsel opened the door to the State’s subsequent questions concerning the statement and its introduction.

The defendant’s failure to object at trial to the admission of evidence encompassed by a separate motion to suppress, along with his failure to argue plain error constituted a failure to preserve review of that motion on appeal.

The defendant failed to preserve for appellate review his claim that the trial court erred by requiring him to enroll in satellite-based monitoring (SBM). The defendant asserted that the State failed to meet its burden of proving that imposing SBM is reasonable under the fourth amendment. Because the defendant raised no fourth amendment objection at the SBM hearing and the issue was not implicitly addressed or ruled upon by the trial court, it was not preserved for appellate review. In its discretion, the court declined to grant review under Rule 2, reasoning that the law was well-established at the time of the hearing and the State was not on notice of the need to address Grady issues due to the defendant’s failure to raise the constitutional issue.

On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 789 S.E.2d 679 (2016), the court reversed because of errors in the jury instructions on self-defense. At trial, the parties agreed to the delivery of N.C.P.I.–Crim. 206.10, the pattern instruction on first-degree murder and self-defense. That instruction provides, in relevant part: “Furthermore, the defendant has no duty to retreat in a place where the defendant has a lawful right to be.” Additionally, N.C.P.I.–Crim. 308.10, which is incorporated by reference in footnote 7 of N.C.P.I.–Crim. 206.10 and entitled “Self-Defense, Retreat,” states that “[i]f the defendant was not the aggressor and the defendant was . . . [at a place the defendant had a lawful right to be], the defendant could stand the defendant’s ground and repel force with force.” Although the trial court agreed to instruct the jury on self-defense according to N.C.P.I.–Crim. 206.10, it ultimately omitted the “no duty to retreat” language of N.C.P.I.–Crim. 206.10 from its actual instructions without prior notice to the parties and did not give any part of the “stand-your-ground” instruction. Defense counsel did not object to the instruction as given. The jury convicted defendant of second-degree murder and the defendant appealed. The Court of Appeals affirmed the conviction, reasoning that the law limits a defendant’s right to stand his ground to any place he or she has the lawful right to be, which did not include the public street where the incident occurred. The Supreme Court allowed defendant’s petition for discretionary review and reversed.

(1) The court held that when a trial court agrees to give a requested pattern instruction, an erroneous deviation from that instruction is preserved for appellate review without further request or objection. Here, because the trial court agreed to instruct the jury in accordance with N.C.P.I.–Crim. 206.10, its omission of the required stand-your-ground provision substantively deviated from the agreed-upon pattern jury instruction, thus preserving this issue for appellate review.

(2) By omitting the relevant stand-your-ground provision, the trial court’s jury instructions were an inaccurate and misleading statement of the law. The court concluded, in part, that “[c]ontrary to the opinion below, the phrase “any place he or she has the lawful right to be” is not limited to one’s home, motor vehicle, or workplace, but includes any place the citizenry has a general right to be under the circumstances.” Here, the defendant offered ample evidence that he acted in self-defense while standing in a public street, where he had a right to be when he shot the victim. Because the defendant showed a reasonable possibility that, had the trial court given the required stand-your-ground instruction, a different result would have been reached at trial, the court reversed the Court of Appeals, finding that the defendant was entitled to a new trial.

On an appeal from an order requiring the defendant to enroll in lifetime SBM, the court held--as conceded by the State--that the trial court erred by imposing lifetime SBM without conducting the required Grady hearing to determine whether monitoring would amount to a reasonable search under the Fourth Amendment. The court vacated the SBM order without prejudice to the State’s ability to file a subsequent SBM application.

In this possession of a firearm by a felon case, the court reversed in part the decision of the Court of Appeals, ___ N.C. App. ___, 801 S.E.2d 169 (2017), for the reasons stated in the dissent. A divided panel of the court of appeals had held that the trial court erred by admitting 404(b) evidence. The current charges were filed after officers found an AK-47 rifle in the back seat of a vehicle and a Highpoint .380 pistol underneath the vehicle, next to the rear tire on the passenger side. At trial, the State offered, and the trial court admitted, evidence of a prior incident in which officers found a Glock 22 pistol in a different vehicle occupied by the defendant. The evidence was admitted to show the defendant’s knowledge and opportunity to commit the crime charged. The defendant offered evidence tending to show that he had no knowledge of the rifle or pistol recovered from the vehicle. The court of appeals held that the trial court erred by admitting the evidence as circumstantial proof of the defendant’s knowledge. It reasoned, in part, that “[a]bsent an immediate character inference, the fact that defendant, one year prior, was found to be in possession of a different firearm, in a different car, at a different location, during a different type of investigation, does not tend to establish that he was aware of the rifle and pistol in this case.” The court of appeals found that the relevance of this evidence was based on an improper character inference. It further held that the trial court abused its discretion by admitting the evidence as circumstantial proof of the defendant’s opportunity to commit the crime charged. The court of appeals noted, in part, that the State offered no explanation at trial or on appeal of the connection between the prior incident, opportunity, and possession. The court of appeals went on to hold that the trial court’s error in admitting the evidence for no proper purpose was prejudicial and warranted a new trial. The dissenting judge believed that because the defendant did not properly preserve his objection, the issue should be reviewed under the plain error standard, and that no plain error occurred. 

A defendant who fails to move to dismiss in the trial court on grounds of fatal variance waives the issue for purposes of appeal.

Because the defendant did not present any constitutional argument before the trial court, he waived appellate review of whether his Fourth Amendment rights were violated when the trial court allowed the State to retrieve location information from his cell phone without a search warrant. The court concluded: “Defendant’s only argument before the trial court was that law enforcement did not have sufficient evidence to support issuance of the pen register order. The trial court ruled on this issue only, and this is the only argument we may consider on appeal.”

(1) By failing to object at trial to the trial court’s handling of a juror’s inquiry about whether jurors may question witnesses, the defendant failed to preserve the issue for appellate review.

(2) The court declined to invoke its discretionary authority under Appellate Rule 2 to suspend the issue-preservation requirements of Appellate Rule 10 and review the issue on the merits, concluding that the defendant had failed to demonstrate that the case was a rare one meriting suspension of the rules.

The defendant failed to preserve for appellate review his contention that the trial court erred by denying defense counsel’s motion to dismiss a charge of second-degree murder. Although the defendant made a motion to dismiss the charge of first-degree murder, he neither moved to dismiss the second-degree murder charge nor argued insufficiency of the evidence to establish that offense. 

The court declined to consider the defendant’s argument that his motion to suppress a warrantless blood draw should have been granted because his Fourth Amendment rights were violated where the only ground the defendant asserted with respect to that motion at trial was a violation of G.S. 20-16.2. 

In this multi-count assault and attempted murder case, because the defendant failed to challenge the sufficiency of the evidence as to the intent elements of the challenged convictions in the trial court, the issue was not preserved for appellate review. The court concluded: “Because defense counsel argued before the trial court the sufficiency of the evidence only as to specific elements of the charges and did not refer to a general challenge regarding the sufficiency of the evidence to support each element of each charge, we hold Defendant failed to preserve the issues of the sufficiency of the evidence as to the other elements of the charged offenses on appeal.”

The defendant failed to preserve for appellate review a challenge to the admission of evidence at trial concerning the defendant’s previous incarceration. Although the defendant objected to the admission of the evidence during a hearing outside of the jury’s presence, he did not subsequently object when the evidence was actually introduced at trial. Thus the defendant failed to preserve for appellate review the trial court’s decision to admit this evidence.

In this child sexual assault case, the defendant failed to preserve the argument that the trial court committed prejudicial error by allowing the State’s expert witness to testify that she diagnosed the child with PTSD, thus improperly vouching for the witness. At trial, the defendant did not object to the expert’s testimony on the basis that it impermissibly vouched for the child’s credibility or the veracity of the sexual abuse allegations; rather, his objection was grounded on the fact that a licensed clinical social worker is not sufficiently qualified to give an opinion or diagnosis regarding PTSD.

In a drug case in which the court of appeals had held that a strip search of the defendant did not violate the fourth amendment, State v. Collins, ___ N.C. App. ___, 782 S.E.2d 350 (2016), the Supreme Court affirmed solely on the ground that because the defendant failed to raise in the trial court the timing of the officer’s observation of powder on the floor, he failed to preserve that issue on appeal. The defendant had argued in the court of appeals that because the officer did not see the powder until after the search, the trial court was barred from considering the officer’s observation in ruling on the defendant’s suppression motion. The court of appeals determined that because the defendant failed to raise the timing of the officer’s observation at the hearing on his motion to suppress, the issue was not properly before the appellate court.

Where the State’s witness testified regarding statements made to the victim by the victim’s brother and the defendant failed to move to strike the testimony, the defendant failed to preserve the issue for appellate review.

The court determined that it need not address the substance of the defendants’ challenge to the trial court’s order denying their suppression motions where the argument asserted was not advanced at the suppression hearing in the trial court.

In this Wake County case, defendant appealed his convictions for two counts of first-degree murder and four counts of discharging a weapon into an occupied vehicle, arguing error in (1) allowing certain text messages into evidence, and (2) denying his challenge to the jury pool. The Court of Appeals found no error. 

In May of 2022, trial began on defendant’s charges; during jury selection, defendant challenged the makeup of the jury pool, arguing members of defendant’s race (Black) were underrepresented. Defendant offered statistical evidence to support his argument, but the trial court denied defendant’s challenge. During the trial, the State offered text messages between an accomplice of defendant and a third party, attempting to show motivation for the robbery that eventually led to the murders. Defendant objected to the messages, and the trial court only allowed admission of the accomplice’s text messages, not those from the third party. Defendant was subsequently convicted and appealed.  

Before reaching the merits of defendant’s arguments in (1), the Court of Appeals considered the basis for its review. At trial, defendant objected to the text messages “because they were hearsay, were not illustrative, and lacked a proper foundation.” Slip Op. at 6. However, on appeal, defendant did not raise these three issues, but instead argued the text messages were irrelevant, unfairly prejudicial, and violated the Confrontation Clause and defendant’s right to a fair trial. Because defendant attempted to change his arguments on appeal, he was limited to the plain-error standard; however, the court noted that defendant “failed to ‘specifically and distinctly . . . argue plain error.’” Id., quoting State v. Frye, 341 N.C. 470, 496 (1995). As a result, defendant was limited to the grounds under which he originally objected to the evidence at trial. But as noted above, defendant did not argue the three issues from trial on appeal. This meant that defendant had no valid arguments on appeal, and the court dismissed issue (1). 

Moving to (2), the court explained that under applicable precedent on the fair-cross-section requirement, statistical evidence about the composition of the jury pool alone is not enough to prove systematic exclusion of that group. Here defendant acknowledged that he did not admit sufficient evidence of all three factors under Duren v. Missouri, 439 U.S. 357 (1979), but attempted to reference other cases and the pervasive problem of disparity in jury pools across North Carolina. The court was not swayed by this argument, concluding defendant “only offers statistical evidence as proof of systematic exclusion, and without more, he fails to establish a fair-cross-section claim under Duren.” Slip Op. at 8-9. 

In this Wake County case, a drug investigator was working at a local FedEx facility and noticed a package from California with the seams taped shut and with an apparently fake phone number for the recipient. The officer removed the package from the conveyor belt and searched law enforcement databases for information on the sender and the recipient. He discovered that the telephone number for the sender listed on the package was incorrect, that the telephone number for the recipient was fictitious, and that the package had been mailed from a location other than the listed shipping address. The package was placed alongside several other similar packages and was examined by a drug dog already present in the facility. Following an alert by the canine, officer obtained a search warrant for the package. Inside, officers discovered packages of around 15 pounds of suspected marijuana, along with a GPS tracker. Officers visited the address of the recipient, where they noticed the defendant in the driveway. They also noted the presence of a storage unit facility nearby and later learned the defendant rented a unit there. A man (apparently the sender) called the FedEx facility to inquire about the status of the package. An officer called him back, first verifying the intended address and recipient of the package and then identifying himself as law enforcement. The man on the phone cursed and ended the call. The next day, officers visited the storage facility near the defendant’s home with a canine unit, which alerted to a certain unit. While officers were obtaining a search warrant for the unit, the defendant arrived on scene holding a bag. Officers saw what they believed to be marijuana extract or “wax” inside the bag and placed the defendant under arrest. Once the search warrant for the storage unit was approved, officers discovered more apparent marijuana and marijuana extract inside. Search warrants for the defendant’s house were then obtained, leading to the discovery of marijuana paraphernalia and a substance used to produce marijuana extract. 

The defendant was charged with conspiracy to traffic marijuana, possession with intent to sell/deliver marijuana and possession with intent to sell/deliver THC (among other related offenses). The defendant moved to suppress, arguing that the seizure of the package at the FedEx facility was unconstitutional. The trial court denied the motion, and the defendant was convicted of trafficking and other offenses at trial. On appeal, the defendant challenged the denial of his suppression motion, the denial of his motion to dismiss for insufficient evidence, the admission of lay opinions identifying the substances in the case as marijuana, marijuana wax, and THC, and the admission of the phone call between the officer and the man who called the FedEx facility inquiring about the package. The Court of Appeals affirmed.

(1) The court rejected the argument that the defendant’s Fourth Amendment rights were violated by the seizure of the package and canine sniff at the FedEx facility. “[W]e do not accept Defendant’s initial contention that the mere removal of the target package from the conveyor belt for a drug dog sniff was a ‘seizure’ implicating his Fourth Amendment rights. Neither was the drug dog sniff a ‘search. . .’” Teague Slip op. at 13. While both the sender and recipient of a mailed package have a reasonable expectation of privacy in the contents of a package, the temporary detention and investigation of the package in a manner that does not significantly delay its delivery does not amount to a Fourth Amendment seizure. Officers here had reasonable suspicion to justify a brief investigation and dog sniff of the package. From there, officers properly obtained search warrants of the package, which led to additional search warrants supported by probable cause. Thus, the acts of removing the package for investigation and subjecting it to a canine sniff did not implicate the defendant’s Fourth Amendment rights and the motion to suppress was properly denied. 

(2) Assuming arguendo that the seizure and canine sniff of the package did implicate the defendant’s Fourth Amendment rights, he failed to preserve those arguments for appellate review. While the defendant filed a pretrial motion to suppress and fully litigated those issues (including objecting to the canine alert evidence at trial), he failed to object to testimony at trial about the removal of the package from the conveyor belt for additional investigation. Appellate review of that issue was therefore waived. The dog sniff on its own did not amount to a search, given it took place at the FedEx facility while the item was “still in the mail stream” and was completed within ten minutes. “…Defendant’s renewed objection at trial to the introduction of . . . the dog sniff was insufficient to resurrect any prior unpreserved Fourth Amendment argument for appellate review.” Id. at 25. The trial court also did not plainly err by denying the suppression. Because the defendant’s Fourth Amendment rights were not implicated, no error occurred, much less any plain error in the trial court’s denial of the suppression motion. 

Regarding the defendant’s other challenges, the court noted the continued ambiguity surrounding the impact of hemp legalization on marijuana prosecutions, citing State v. Parker, 277 N.C. App. 531 (2021). The court opined that the now-defunct Industrial Hemp Act did not impact the State’s burden of proof in criminal proceedings “to the degree the Defendant contends,” while also acknowledging that “our appellate courts have yet to fully address the effect of industrial hemp’s legalization on . . . the various stages of a criminal investigation and prosecution for acts involving marijuana.” Teague Slip op. at 28 (citation omitted). 

(3) The defendant argued that the indictment charging him with possession with intent to sell/deliver THC was fatally defective for failure to state a crime because the indictment failed to specify that the THC possessed by the defendant contained a delta-9 THC concentration of more than 0.3%. The court rejected this argument, finding that the concentration of delta-9 THC is not an element of the crime and that the then-applicable Industrial Hemp Act did not remove THC from the list of prohibited controlled substances under Chapter 90 of the North Carolina General Statues. Moreover, the defendant has the burden under G.S. 90-113.1 to prove lawful possession of a controlled substance, which is an exception to the prohibitions on controlled substances and (again) not an element of the offense. (The prohibition on possession of THC in G.S. 90-94 has since been amended to exclude all THC products containing no more than 0.3% delta-9 THC, which expressly removes delta-9 THC within the legal limit and all other hemp-derived THCs not exceeding the delta-9 THC limit from the list of prohibited controlled substances).

(4) The trial correctly denied the defendant’s motion to dismiss the charge of possession with intent to sell/deliver THC for insufficient evidence. The defendant pointed to the lack of any chemical analysis for the brown marijuana “wax” and argued that the State failed to present proof that the substance was an illegal controlled substance given the existence of legal hemp. The court found that the brown material did not qualify as industrial hemp under the then-existing definition but met the definition of THC in place at the time. “The brown material was neither a part nor a variety of the plant Cannabis sativa.” Teague Slip op. at 34 (emphasis in original). Moreover, even if the material did qualify as a part of the plant, “Defendant makes no argument that he was a ‘grower licensed by the Commission’, or that the brown material was cultivated by such a licensed grower, as the statutory definition of ‘industrial hemp’ requires.” Id. at 35. In the light most favorable to the State, there was therefore sufficient evidence that the brown material was THC, and the motion was properly denied. (Industrial hemp is no longer defined under state law and has been replaced by new state definitions for marijuana, hemp and hemp products, as discussed here. Under the new definitions, hemp is defined to include all extracts and derivatives of hemp, and hemp products are defined as anything made from hemp. There is no longer any requirement that hemp be grown by a licensed grower.)

(5) The defendant argued that the legalization of hemp in the state undercut the justifications in the decisions allowing the lay identification of marijuana without the need for a chemical analysis. See, e.g., State v. Mitchell, 224 N.C. App. 171, 179 (2013). He complained on appeal that the admission of lay opinion testimony identifying “marijuana wax,” “THC,” and marijuana as such without a valid chemical analysis violated N.C. Evid R. 702 and was reversible error. The Court of Appeals disagreed. Assuming without deciding that the trial court erred in admitting this testimony, the defendant could not show prejudice. The flower marijuana in the package was properly lab-tested and found to contain illegal levels of delta-9 THC. While the brown wax material was tested only for the presence of delta-9 THC and not for specific levels of THC, the material again did not qualify as industrial hemp under the then-existing definition. While other flower material found in the storage shed was likewise only tested for the presence of THC (and not for quantified THC levels), there was overwhelming evidence of the defendant’s guilt. Given the marijuana that was properly tested, along with the discovery of other drugs and drug paraphernalia at the defendant’s house, storage unit, and in the bag that the defendant was carrying when he encountered officers at the storage unit (among other evidence), there was no reasonable likelihood of a different result at trial had this identification testimony been excluded. 

(6) There was also sufficient evidence supporting the defendant’s conviction for conspiring to traffic marijuana by transportation, and the trial court did not err in admitting a recording of the phone call between the apparent sender of the package and the law enforcement officer. The shipping label accurately named the defendant and his address, and the sender acknowledged that information on the call with the officer. The sender was also upset upon learning that the package had been intercepted by law enforcement. Additionally, the drugs in the package were worth more than $150,00.00 and included a GPS tracking device. This was sufficient to show the defendant and co-conspirator’s “mutual concern for and interest in” the package, thus providing sufficient evidence of the conspiracy. Id. at 44. The phone call between the sender of the package and law enforcement was properly admitted under the hearsay exception for statements of co-conspirators under N.C. Evid. R. 801(d)(E). The court rejected the defendant’s argument that the statement at issue here did not qualify under that exception because it was not a statement made between the conspirators. The court observed:

[W]hen the State has introduced prima facie evidence of a conspiracy, the acts and declarations of each party to it in furtherance of its objectives are admissible against the other members regardless of their presence or absence at the time the acts and declarations were done or uttered. Teague Slip op. at 46 (citation omitted) (emphasis in original). 

There was therefore sufficient evidence of the conspiracy conviction and no error in admission of the phone call between law enforcement and the co-conspirator. 

This Harnett County case involved a husband and wife who indemnified a bond on behalf of an employee. The employee was roommates with the couple’s son. When the employee disappeared, the family members forcibly apprehended him, causing a traffic accident and apparently discharging a gun. The three defendants were charged with various offenses, including acting as unlicensed bail bondsmen or runners. (1) Two of the defendants failed to preserve their argument that the evidence was insufficient to support conviction for acting as an unlicensed bail bondsman or runner. Trial counsel for the defendants moved to dismiss some of the offenses but failed to make any motion as to all charges generally, or as to the charge of acting as an unlicensed bondsman specifically. While a motion to dismiss a charge preserves all sufficiency issues pursuant to State v. Golder, 374 N.C. 238 (2020) (discussed here), where there is no motion to dismiss as to a specific charge, appellate review of the sufficiency of evidence for that offense is waived under Rule 10(a)(3) of the North Carolina Rules of Appellate Procedure. For the same reason, one of the defendant’s arguments regarding an alleged fatal variance between the indictment and the jury instructions was waived on appeal.

[A]ny fatal variance argument is, essentially, an argument regarding the sufficiency of the State’s evidence. . .[A]s [the defendant’s] argument fundamentally presents an issue ‘related to the sufficiency of the evidence’ that he did not ‘mov[e] to dismiss at the proper time’, he has waived appellate review of this issue. Slip op. at 17.

The court declined to suspend the Rules of Appellate Procedure under Rule 2 to consider the merits of the arguments.

(2) The trial court admitted into evidence a recording of a 911 call where the caller stated that a defendant hit the victim’s truck with his vehicle “on purpose.” On appeal, the defendant argued this evidence amounted to improper lay opinion testimony. Trial counsel objected to this evidence at the time on hearsay and confrontation grounds but did not argue improper lay opinion. This argument was therefore waived on appeal. This defendant also failed to “specifically and distinctly” raise this argument for plain error review on appeal, and the court declined to review it. The court observed that purported violations of Rule 701 are reviewed for abuse of discretion and that plain error has not previously been applied to discretionary decisions of the trial court.

(3) Several other issues turned on whether the defendants could be considered sureties or accommodation bondsmen. Two of the defendants claimed error in the trial court’s refusal to instruct on a defense of lawful action by a surety; one defendant claimed a fatal defect in the indictment for failure to charge a crime; and one defendant claimed that a motion to dismiss for insufficiency as to a kidnapping conviction should have been granted based on the lawful authority of a surety to confine or restrain the subject of the bond. Article 71 of Chapter 58 of the General Statutes of North Carolina regulates the bail bond industry. The husband and wife argued that they met the definition of a surety in G.S. 58-71-1(10) as ones liable on the bail bond in the event of bail forfeiture. As a result, they argued that the common law right of sureties to arrest a principal on the bond who fail to appear justified their actions. The court rejected this argument, finding that the definition of surety in Chapter 15A of the General Statutes controls when the two definitions conflict, pursuant to G.S. 58-71-195 (so stating). Under that definition, the professional bondsman who posted the bond was the surety, but the defendants were not. While the husband-and-wife-defendants were liable to the professional bondsman if the bond were to be forfeited as indemnitors, they would not be liable to the State. “Simply put, agreeing to indemnify a bond does not a surety make.” Gettleman Slip op. at 26. The court also rejected the alternative argument by one of the defendants that she qualified as an accommodation bondman for the same reason—the defendant did not qualify as a surety on the bond. “We conclude that Defendants did not act lawfully, either as sureties or as accommodation bondsmen. Accordingly, we overrule Defendants’ issues brought on this basis.” Id. at 27. The unanimous court therefore affirmed all of the convictions.

The defendant was stopped by a state trooper who saw her driving erratically. The defendant smelled of alcohol, had slurred and mumbled speech, and stumbled and staggered when she got out of her car. She registered a positive result on a portable breath test and was arrested for driving while impaired. She subsequently refused to submit to a breath test. The defendant pled guilty in district court to driving while impaired and appealed. In superior court, the defendant moved to suppress evidence and requested a bench trial. The superior court denied the motion to suppress and found the defendant guilty. At sentencing, the court found the grossly aggravating factor of a prior impaired driving conviction within seven years of the date of the offense and imposed a Level Two sentence. The defendant appealed, arguing that the trial court erred in denying her motion to suppress, the evidence was insufficient to support her conviction, and that the trial court erred in in sentencing her based on a grossly aggravating factor for which the State filed to provide the statutorily required notice.

(1) The court of appeals determined that the defendant did not properly preserve the denial of her motion to suppress for review on appeal as she did not renew her objection when the evidence was offered for consideration at her bench trial. And because the defendant did not argue plain error on appeal, the court did not review the denial of the motion for plain error. 

(2) The court of appeals determined that the trial court did not err by denying defendant’s motion to dismiss for insufficient evidence. The trooper testified as to his opinion that the defendant was impaired by alcohol. He based that opinion on seeing the defendant stumbling and staggering when she got out of her car, smelling a moderate odor of alcohol on her breath, hearing her mumbled and slurred speech, and observing her erratic driving. Evidence of the defendant’s refusal to submit to a breath test at the police station also was admissible evidence of impairment. The appellate court held that, viewed in the light most favorable to the State, this evidence was sufficient to show that the defendant was under the influence of an impairing substance.

(3) The State failed to file notice of its intent to rely at sentencing upon the aggravating factor of a prior impaired driving conviction. Such notice is required by G.S. 20-179(a1)(1) for misdemeanor impaired driving charges appealed to superior court. The court explained that the right to notice of the State’s intent to rely on a prior conviction is a statutory right, not a constitutional one, and thus may be waived. The defendant admitted to the prior conviction on cross-examination, and her counsel stipulated at sentencing that she “‘did have the prior DWI.’” Slip op. at 12. Moreover, defense counsel did not object to the court’s consideration of the prior conviction as an aggravating factor. The court of appeals determined that the defendant’s admission and her counsel’s stipulation along with her failure to object to lack of notice at the sentencing hearing amounted to a waiver of her statutory right to notice.

In this robbery case where the defendant was punished as a habitual felon, (1) the defendant failed to preserve a fatal variance argument; (2) there was insufficient evidence of attempted armed robbery; (3) assuming without deciding that the trial court expressed its opinion in violation of G.S. 15A-1222, the defendant was not prejudiced; and (4) the trial court erred by accepting the defendant’s stipulation to having attained habitual felon status.  

Noting that a defendant must specifically state at trial that a fatal variance is the basis for a motion to dismiss in order to preserve that argument for appellate review, the court found that the defendant waived his variance argument by basing his motion to dismiss solely on insufficiency of the evidence. 

With regard to insufficiency of the evidence of attempted armed robbery, the defendant argued that there was insufficient evidence of the use of a dangerous weapon.  The defendant had threatened an associate with a pistol and rifle that appeared to be firearms but turned out to be an air pistol and a pellet rifle.  Reviewing the rules from State v. Allen, 317 N.C. 119 (1986) and related cases about sufficiency of the evidence in situations involving instruments that appear to be but may not in fact be dangerous weapons, the court said that because the evidence was conclusive that the pistol and rifle were not firearms, the State was required to introduce evidence of the weapons’ “capability to inflict death or great bodily injury” to merit submission of the attempted armed robbery charge to the jury.  As no such evidence was introduced, the trial court erred in denying the defendant’s motion to dismiss for insufficient evidence.

During the testimony of a defense witness, the trial court interjected to admonish the witness not to refer to the pistol and rifle as “airsoft” weapons because, in the trial court’s view, that terminology was not an accurate description of the items.  Assuming without deciding that this admonishment was an improper expression of opinion and accepting for argument that it may have negatively impacted the jury’s view of the witness’s testimony, there was not a reasonable probability that the jury would have reached a different verdict absent the admonishment.

Finally, the State conceded and the court agreed that the trial court erred by accepting the defendant’s stipulation to having attained habitual felon status without conducting the required guilty plea colloquy.