State v. Fuller, COA24-471, ___ N.C. App. ___ (Mar. 19, 2025)

In this Rockingham County case, defendant appealed his convictions for obstruction of justice, attempting to access a government computer to defraud, and filing false liens, arguing error in (1) concluding defendant forfeited his right to counsel and right to be present in the courtroom for trial, and (2) finding that defendant’s Virginia conviction was substantially similar to the North Carolina offense of identity theft for sentencing. The Court of Appeals found no error in (1), but remanded for resentencing based on (2).

Defendant was indicted in February 2022, and at his first appearance indicated he wanted to waive his right to counsel but refused to sign the waiver form. At a later pretrial appearance, defendant asked for counsel to be appointed for “the defendant,” but gave confusing responses as to whether he was requesting counsel for himself. At the next appearance before the trial court, defendant was removed for being disruptive, and eventually the trial court concluded defendant had forfeited his right to counsel through inappropriate behavior. At trial, defendant was handcuffed to a wheelchair after threatening to remove his clothing. After another confusing exchange where defendant requested a lawyer for “the defendant,” and caused disruption in the courtroom, defendant was removed from the courtroom and was given written updates on the trial by the trial court. Defendant was subsequently convicted on all counts.

Taking up (1), the Court of Appeals looked to State v. Smith, 292 N.C. App. 656 (2024), for the applicable standard when a defendant’s conduct justifies forfeiture of counsel. Here, defendant’s conduct was “combative and interruptive—he insisted the trial court could not be impartial, interrupted and spoke out of turn, threatened to remove his clothing, and refused to directly answer the trial court’s questions.” Slip Op. at 16. As a result, the court held that it was not error to conclude defendant forfeited his right to counsel. The court then considered whether removing defendant from the courtroom was error, looking to United States v. Mack, 362 F.3d 597 (9th Cir. 2004) and People v. Cohn, 160 P.3d 336 (Colo. Ct. App. 2007). Complicating the considerations, many cases and G.S. 15A-1032 presume that a defendant removed from the courtroom will be represented by counsel, which was not the case here. The court concluded that the trial court’s actions here were reasonable, including providing updates to defendant and instructing the jury not to consider defendant’s removal from the courtroom. Finally, the court concluded that not appointing standby counsel was not prejudicial error and G.S. 15A-1032 did not require appointment of standby counsel when defendant was removed.

Arriving at (2), the court explained that Virginia’s statute on identity theft (Va. Code § 18.2-186.3) differed in material ways from the North Carolina version in G.S. 14-113.22. The court agreed with defendant’s argument that “the statutes are not substantially similar because Virginia’s statute can be violated using the identifying information of a ‘false or fictitious person’ whereas North Carolina’s statute requires the offender to have used the identifying information of a ‘real person.’” Slip Op. at 28. Thus the court remanded for resentencing.