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 this sex case involving a six-year-old victim, the trial court committed prejudicial error by excluding evidence that the defendant found the victim watching a pornographic video. The evidence was relevant to explain an alternate source of the victim’s sexual knowledge, from which she could...
(1) In this child sex case, evidence that the victim was discovered watching a pornographic video, offered by the defendant to show the victim’s sexual knowledge, is not evidence of sexual activity barred by the Rape Shield Statute. (2) Evidence offered by the defendant of the child victim’s...
In a case involving charges of obtaining property by false pretenses arising out of alleged insurance fraud, the trial court did not err by admitting testimony that the defendant did not appear for two scheduled examinations under oath as required by her insurance policy and failed to respond to...
The trial court correctly calculated the defendant’s PRL. The defendant argued that the trial court erred by basing its PRL calculation on an ineffective stipulation. The defendant’s only prior conviction was one in Michigan for carrying a concealed weapon, which he contended is substantially...
In this drug case, the trial court erred in denying the defendant’s motion to suppress evidence obtained as a result of a warrantless search of her residence. According to the court: “The trial court’s findings that the officers observed a broken window, that the front door was unlocked, and...
In this violation of a domestic violence protective order (DVPO) case, the trial court did not err by sentencing the defendant within the aggravated range based in part on the G.S. 15A-1340.16(d)(15) statutory aggravating factor (the “defendant took advantage of a position of trust or confidence...
In this drug case, the trial court erred in denying the defendant’s motion to suppress evidence obtained as a result of a warrantless search of her residence. According to the court: “The trial court’s findings that the officers observed a broken window, that the front door was unlocked, and...
The trial court erred by concluding that the defendant’s 300-month minimum, 420-month maximum sentence for statutory rape and statutory sex offense violated the Eighth Amendment. The court concluded: “A 300-month sentence is not grossly disproportionate to the two crimes to which Defendant pled...
(1) Count 1 of an indictment charging the defendant with possessing a Schedule I controlled substance, “Methylethcathinone,” with intent to manufacture, sell or deliver was fatally defective. Although 4-methylethcathinone falls within the Schedule I catch-all provision in G.S. 90-89(5)(j), “...
The trial court did not err by denying the defendant’s motion to dismiss a charge of maintaining a dwelling. The court first held that the evidence established that the defendant kept or maintained the dwelling where it showed that he resided there. Specifically, the defendant received mail...
On the State’s appeal from a trial court order granting the defendant’s motion to suppress, the court vacated and remanded for new findings of fact and if necessary, a new suppression hearing. After being shot by police, the defendant was taken to the hospital and given pain medication. He then...
In this case where the defendant was convicted of second-degree murder for killing her boyfriend, the trial court did not err by introducing 404(b) evidence pertaining to an incident between the defendant and another boyfriend, Walker, which occurred 14 months before the events in question. The...
In this injury to real property case, the court held that an air conditioning unit that was attached to the exterior of a mobile home was real property. The defendant dismantled and destroyed the unit, causing extensive water damage to the home. The trial court instructed the jury that “[a]n air...
Indictments charging the defendant with drug crimes were fatally defective where they did not name controlled substances listed in Schedule III. The possession with intent and sale and delivery indictments alleged the substances at issue to be “UNI-OXIDROL,” "UNIOXIDROL 50” and “SUSTANON” and...
The trial court erred by sentencing the defendant for both felony larceny and felony possession of stolen goods when both convictions were based on the same items.
In this injury to real property case, the trial court did not err by ordering the defendant to pay $7,408.91 in restitution. A repair invoice provided sufficient evidence to support the award of restitution and the restitution award properly accounted for all damage directly and proximately...
In this case involving three accomplices and charges of armed robbery, common law robbery and attempted armed robbery, the court rejected the defendant’s argument that he could not have been convicted of attempted armed robbery under the theory of acting in concert because the trial court did...
The court rejected the defendant’s argument that there was a fatal variance between a sale and delivery indictment which alleged that the defendant sold the controlled substance to “A. Simpson” and the evidence. Although Mr. Simpson testified at trial that his name was “Cedrick Simpson,” not “A...
(1) In this case, which came to the court on a certiorari petition to review the trial court’s 2013 probation revocation, the court concluded that it had jurisdiction to consider the defendant’s claim that the trial court lacked jurisdiction to extend her probation in 2009. (2) The trial court...
(1) The evidence was sufficient to support charges of attempted armed robbery against both defendants. The defendants and a third person, Moore, planned to rob Bobbie Yates of marijuana. However, once they learned there was a poker game going on in the apartment, they retrieved another weapon...
(1) In this hunting without a license case, the trial court did not err by denying defendant Oxendine’s request to instruct the jury on legal justification. The defendant argued that he was exempt under G.S. 113-276 from the requirement of a hunting license because he had been engaged in a...
In this child sexual assault case, no error occurred when the State’s expert medical witness testified that the victim’s delay in reporting anal penetration was a characteristic consistent with the general behavior of children who have been sexually abused in that manner. The court rejected the...
(1) No violation of due process occurred when the defendant was sentenced in the aggravated range where proper notice was given and the jury found an aggravated factor (that the defendant committed the offense while on pretrial release on another charge). (2) Because G.S. 15A-1340.16 (aggravated...
The court rejected the defendant’s argument that there was a fatal variance between a sale and delivery indictment which alleged that the defendant sold the controlled substance to “A. Simpson” and the evidence. Although Mr. Simpson testified at trial that his name was “Cedrick Simpson,” not “A...
The trial court erred by sentencing the defendant for both felony larceny and felony possession of stolen goods when both convictions were based on the same items.
In this robbery case, no plain error occurred with respect to the trial court’s not guilty mandate. The jury instructions for the offenses of armed and common law robbery conformed to the pattern jury instructions with one exception: the court did not expressly instruct the jury that it had a “...
In this driving while license revoked case, the court held that DMV records were non-testimonial. The documents at issue included a copy of the defendant’s driving record certified by the DMV Commissioner; two orders indefinitely suspending his drivers’ license; and a document attached to the...
(1) The evidence was sufficient to support a conviction for attempted first-degree burglary. In this case, which involved an attempted entry into a home in the wee hours of the morning, the defendant argued that the State presented insufficient evidence of his intent to commit a larceny in the...
In this cyberbullying case based on electronic messages, the trial court did not abuse its discretion by allowing the investigating detective to testify that while investigating the case, he took screen shots of anything that appeared to be evidence of cyberbullying. The defendant argued that...
In this cyberbullying case based on electronic messages, the court rejected the defendant’s argument that the trial court erred by admitting into evidence the defendant’s Facebook posts that, among other things, stated that “there’s no empirical evidence that your Jesus ever existed.” The...
(1) Where appointed counsel moved, on the sixth day of a bribery trial, for mandatory withdrawal pursuant to Rule 1.16(a) of the N.C. Rules of Professional Conduct, the trial court did not abuse its discretion by allowing withdrawal upon counsel’s citation of Comment 3 to Rule 1.16 as grounds...
Where appointed counsel was allowed to withdraw, on the sixth day of a bribery trial, pursuant to Comment 3 of Rule 1.16(a) of the N.C. Rules of Professional Conduct, the court rejected the defendant’s argument that private counsel retained after this incident was presumptively ineffective given...
The trial court violated the defendant’s constitutional right to presence at every stage of the trial by failing to disclose a note from the jury to the defendant. However, the error was harmless beyond a reasonable doubt.
The trial court did not err by denying the defendant’s motion to dismiss a charge of armed robbery. One of the victims testified that all three perpetrators had handguns. A BB pistol and a pellet gun were found near the scene of the robbery. The defendant argued that the State failed to produce...
In this child sexual abuse case, no error occurred when the medical doctor who examined the victim explained the victim’s normal examination, stating that 95% of children examined for sexual abuse have normal exams and that “it’s more of a surprise when we do find something.” The doctor further...
Where appointed counsel was allowed to withdraw, on the sixth day of a bribery trial, pursuant to Comment 3, Rule 1.16(a) of the N.C. Rules of Professional Conduct, the trial court was not required to appoint substitute counsel. Comment 3 states in relevant part:
Difficulty may...
In this sexual offense with a student case, the trial court committed reversible error by concluding that the defendant’s evidence was per se inadmissible under the Rape Shield Rule. The case involved charges that the defendant, a substitute teacher, had the victim perform oral sex on him after...
(1) In this murder and discharging a barreled weapon case in which the jury heard some evidence that the defendant was affiliated with a gang, the trial court did not deprive the defendant of his constitutional right to a fair and impartial jury by failing to question jurors about a note they...
In this first-degree murder case, the trial court did not abuse its discretion by denying the defendant’s motion for a bill of particulars. The defendant argued that because the State used a short-form indictment to charge murder, he lacked notice as to which underlying felony supported the...
The trial court did not err by denying the defendant’s request for a diminished capacity instruction with respect to a charge of discharging a firearm into occupied property that served as a felony for purposes of a felony-murder conviction. Because discharging a firearm into occupied property...
The trial court did not err by denying the defendant’s request for a diminished capacity instruction with respect to a charge of discharging a firearm into occupied property that served as a felony for purposes of a felony-murder conviction. Because discharging a firearm into occupied property...
In this first-degree murder case, the evidence was sufficient to go to the jury on the theory of premeditation and deliberation. Among other things, there was no provocation by the victim, who was unarmed; the defendant shot the victim at least four times; and after the shooting the defendant...
(1) The State presented sufficient evidence to support a conviction for failure to register as a sex offender. The court rejected the defendant’s argument that he was not required to register in connection with a 1994 indecent liberties conviction. The court took judicial notice of the fact that...
The trial court did not err by denying the defendant’s request for a diminished capacity instruction with respect to a charge of discharging a firearm into occupied property that served as a felony for purposes of a felony-murder conviction. Because discharging a firearm into occupied property...
The evidence was sufficient to support a conviction for discharging a firearm into occupied property (a vehicle), an offense used to support a felony-murder conviction. The defendant argued that the evidence was conflicting as to whether he fired the shots from inside or outside the vehicle....
In this first-degree murder case, the court rejected the defendant’s argument that there was an insufficient relationship between the felony supporting felony-murder (discharging a firearm into occupied property) and the death. The law requires only that the death occur “in the perpetration or...
In a multi-count robbery case, there was sufficient evidence of common law robbery against victim Adrienne. Although Adrienne herself did not testify, the evidence showed that she was a resident of the mobile home where the robbery occurred, that another victim heard her screaming during the...
In a case where the defendant was charged with assaulting a court security officer, no error occurred when the State was allowed to cross-examine the defendant about another criminal proceeding in which he was the prosecuting witness and that he referenced in his direct examination. On direct,...
Although the trial court erred when it based its imposition of sentence on the defendant’s exercise of his right to appeal, the issue was moot because the defendant had served his sentence and could not be resentenced. Although the 120-day sentence was within the statutorily permissible range,...
In this robbery case, the trial court did not err by denying the defendant’s mistrial motion made after an officer testified that the defendant told him that he was turning himself in on a failure to appear charge issued in connection with unrelated drug charges. The defendant failed to timely...
The trial court did not err by denying the defendant’s motion to dismiss a voluntary manslaughter charge. The court rejected the defendant’s argument that there was insufficient evidence that she killed the victim by an intentional and unlawful act, noting that although there was no direct...
In this robbery case involving multiple victims, the trial court did not abuse its discretion by denying the defendant’s motion to sequester the victim-witnesses where the defendant offered no basis for his motion.
In the course of rejecting the defendant’s ineffective assistance claim related to preserving a denial of a motion to suppress, the court held that no prejudice occurred because the trial court properly denied the motion. The officer received a report from an identified tipster that a window at...
The trial court erred in calculating the amount of jail fees due where it used the daily rate provided in the wrong version of G.S. 7A-313. The court rejected the State’s argument that because the defendant failed to object to the fees on this basis at sentencing, the issue was not properly...
The denial of a motion to suppress does not preserve the issue for appellate review in the absence of a timely objection made when the evidence is introduced at trial.
The State had no right to appeal the trial court’s order granting the defendant’s motion to dismiss for insufficient evidence, made after the close of all evidence where the trial court erred by taking the defendant’s motion under advisement and failing to rule until after the jury returned its...
In this robbery case, the court held that no plain error occurred when the trial court admitted into evidence for purposes of corroboration a videotape of an interview with the defendant’s accomplice, when the accomplice testified at trial. The defendant asserted that the accomplice’s statements...
The court remanded for resentencing where the trial court imposed consecutive sentences based on a misapprehension of G.S. 14-7. The jury found the defendant guilty of multiple counts of robbery and attaining habitual felon status. The trial court sentenced the defendant as a habitual felon to...
Following State v. Ross, 46 N.C. App. 338 (1980), the court held that unauthorized use of a motor vehicle “may be a lesser included offense of larceny where there is evidence to support the charge.” Here, while unauthorized use may have been a lesser included of the charged larceny, the...
The trial court violated the defendant’s right to be present during sentencing by entering a written judgment imposing a longer prison term than that which the trial court announced in his presence during the sentencing hearing. In the presence of the defendant, the trial court sentenced him to...
Following State v. Ross, 46 N.C. App. 338 (1980), the court held that unauthorized use of a motor vehicle “may be a lesser included offense of larceny where there is evidence to support the charge.” Here, while unauthorized use may have been a lesser included of the charged larceny, the...
An indictment charging failing to notify the sheriff of a change in address was not defective. The indictment alleged, in relevant part, that the defendant “fail[ed] to register as a sex offender by failing to notify the Forsyth County Sheriff’s Office of his change of address.” The defendant...
In a carrying a weapon on educational property case, the court rejected the defendant’s argument that there was a fatal variance between the indictment, which alleged that the defendant possessed weapons at “High Point University, located at 833 Montlieu Avenue” and the evidence, which showed...
The trial court did not commit plain error when it instructed the jury on attempted first-degree murder but failed to instruct on imperfect self-defense and on attempted voluntary manslaughter. In light of the fact that “the State introduced abundant testimony supporting a finding of defendant’s...
Where the defendant was convicted of first-degree murder on the theories of felony murder and premeditation and deliberation, the trial court violated G.S. 15A-1340.19C(a) by imposing a sentence of life imprisonment without the possibility of parole without assessing mitigating factors,...
Without addressing the deficient performance prong of the Strickland test, the court held that the defendant did not receive ineffective assistance of counsel where he was not prejudiced by counsel’s conduct. The defendant had complained of counsel’s failure to object to a law...
(1) In this opium trafficking case where the State’s witness was accepted by the trial court as an expert witness without objection from defendant and the defendant did not cross-examine the expert regarding the sufficiency of the sample size and did not make the sufficiency of the sample size a...
In an obtaining property by false pretenses case, the evidence was sufficient to support a conviction. The charges arose out of the defendant’s acts of approaching two individuals (Ms. Hoenig and Ms. Harward), falsely telling them their roofs needed repair, taking payment for the work and then...
Indictments charging obtaining property by false pretenses were not defective. The charges arose out of the defendant’s acts of approaching two individuals (Ms. Hoenig and Ms. Harward), falsely telling them their roofs needed repair, taking payment for the work and then performing shoddy work or...
In an obtaining property by false pretenses case, the trial did not err by failing to specify in the jury instructions the misrepresentation made by defendant or the property the defendant received. Noting that the trial court used the standard pattern jury instruction, N.C.P.I--Crim. 219.10,...
The trial court did not abuse its discretion under Rule 403 by admitting the defendant’s recorded interview with a police detective. Noting that the fact that evidence is prejudicial to the defendant does not make it unfairly so, the court concluded that the evidence’s probative value was not...
The trial court did not err by allowing the State to amend the victim’s name as stated in an indictment for assault with a deadly weapon from “Christina Gibbs” to “Christian Gibbs.”
With regard to a felony-murder charge, the evidence was sufficient to show the underlying felony of discharging a firearm into occupied property (here, a vehicle). The court rejected the defendant’s argument that the evidence failed to establish that he was outside of the vehicle when he shot...
In this first-degree murder case there was sufficient evidence of premeditation and deliberation. Among other things, the evidence showed a lack of provocation by the victim, that just prior to the shooting the defendant told others that he was going to shoot a man over a trivial matter, that...
In this murder case, the court rejected the defendant’s argument that the probative value of a recorded telephone call made by the defendant to his father was substantially outweighed by the danger of unfair prejudice. During the call, the defendant’s father asked: “Now who you done shot now?”...
The court reversed and remanded for further findings of fact regarding the defendant’s motion to suppress evidence obtained as a result of a search of the digital contents of a GPS device found on the defendant’s person which, as a result of the search, was determined to have been stolen. The...
Applying a definitional rather than a factual test, the court held that extortion is not a lesser included offense of armed robbery.
The trial court lacked subject matter jurisdiction to revoke the defendant’s probation when it did so after his probationary period had expired and he was not subject to a tolling period.
(1) Under State v. Tirado, 358 N.C. 551, 579 (2004) (trial court did not subject the defendants to double jeopardy by convicting them of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI) arising from the same conduct...
The trial court correctly determined the defendant’s prior record level (PRL) points. At sentencing, the State submitted a print-out of the defendant’s Administrative Office of the Courts (AOC) record. The defendant offered no evidence. On appeal, the defendant argued that the State failed to...
The court reversed and remanded for further findings of fact regarding the defendant’s motion to suppress evidence obtained as a result of a search of the digital contents of a GPS device found on the defendant’s person which, as a result of the search, was determined to have been stolen. The...
The trial court lacked subject matter jurisdiction to revoke the defendant’s probation when it did so after his probationary period had expired and he was not subject to a tolling period.
In this failure to register case based on willful failure to return a verification form as required by G.S. 14-208.9A, the trial court erred by denying the defendant’s motion to dismiss. To prove its case, the State must prove that the defendant actually received the letter containing the...
The court reversed and remanded for further findings of fact regarding the defendant’s motion to suppress evidence obtained as a result of a search of the digital contents of a GPS device found on the defendant’s person which, as a result of the search, was determined to have been stolen. The...
(1) The court dismissed the defendant’s argument that the trial court erred by failing to order an inventory of biological evidence under G.S. 15A-269(f). Under the statute, a request for post-conviction DNA testing triggers an obligation for the custodial agency to inventory relevant biological...
Applying a definitional rather than a factual test, the court held that extortion is not a lesser included offense of armed robbery.
The trial court did not err by instructing the jury that it could consider wounds inflicted after the victim was felled in determining whether the defendant acted with premeditation and deliberation. The trial court instructed the jury:
Neither premeditation nor deliberation...
In this obtaining property by false pretenses case, the trial court did not err by admitting Rule 404(b) evidence. The charges arose out of the defendant’s acts of approaching two individuals (Ms. Hoenig and Ms. Harward), falsely telling them their roofs needed repair, taking payment for the...
In this drug trafficking case where an SBI agent testified as an expert for the State and identified the substance in question as oxycodone, the court declined the defendant’s request to take judicial notice of Version 4 and 7 of SBI Laboratory testing protocols. Among other things, the...
In this murder case, the defendant’s statements about his intent to shoot someone in order to retrieve the keys to his grandmother’s car, made immediately prior to the shooting of the victim, were relevant. The statements showed the defendant’s state of mind near the time of the shooting and...
Where the judgment form mistakenly contained a reference to “Assault with a Deadly Weapon,” a charge on which the defendant was acquitted, but where the error did not affect the sentence imposed, the court remanded for correction of this clerical error. The court rejected the defendant’s...
A search of the defendant’s vehicle was properly done incident to the defendant’s arrest for an open container offense, where the officer had probable cause to arrest before the search even though the formal arrest did not occur until after the search was completed. The court noted that under...
In this first-degree murder case, the trial court did not err by instructing the jury on a theory of lying in wait. The court rejected the defendant’s argument that this theory required the State to prove a “deadly purpose” to kill, noting that the state Supreme Court has held that "lying in...
In this indecent liberties case, the trial court did not err by considering evidence regarding the age of the alleged victims, the temporal proximity of the events, and the defendant’s increasing sexual aggressiveness; making findings of fact based on this evidence; and imposing SBM. Although...
Because the trial court provided the rationale for its ruling on the defendant’s motion to suppress from the bench and there were no material conflicts in the evidence, the trial court was not required to enter a written order.
In this child sexual assault case the trial court did not abuse its discretion by allowing the victim’s mother to testify about changes she observed in her daughter that she believed were a direct result of the assault. The court rejected the defendant’s argument that this testimony was improper...
In this DWI case, the court rejected the defendant’s argument that the trial court erred by denying his motion to quash a citation on grounds that he did not sign that document and the charging officer did not certify delivery of the citation. Specifically, the defendant argued that the officer’...
Finding that the trial court erred by sentencing the defendant in the aggravated range in this Fair Sentencing Act (FSA) child sexual assault case, the court remanded for a new sentencing hearing in compliance with Blakely and in accordance with the court’s opinion regarding how ...
In this DWI case, the officer had reasonable suspicion to stop the defendant’s vehicle. The officer observed the defendant’s vehicle swerve right, cross the line marking the outside of his lane of travel and almost strike the curb. The court found that this evidence, along with “the pedestrian...
Although the trial court properly found that the checkpoint had a legitimate proper purpose of checking for driver’s license and vehicle registration violations, the trial court failed to adequately determine the checkpoint’s reasonableness. The court held that the trial court’s “bare conclusion...
Citing State v. Walston, 367 N.C. 721 (Dec. 19, 2014), the court held in this child sexual assault case that the trial court did not commit reversible error by using the word “victim” in the jury instructions.
The trial court did not violate G.S. 15A-1233 by providing a preemptive instruction that denied the jury an opportunity to make any evidentiary requests. The court concluded that no such preemptive instruction was given; the trial court instructed that although no transcript existed, it would...
In this homicide case where the defendant was charged with murdering his wife, the confrontation clause was not violated when the trial court allowed forensic psychologist Ginger Calloway to testify about a report she prepared in connection with a custody proceeding regarding the couple’s...
In this homicide case where the defendant was charged with murdering his wife, the trial court did not err by admitting into evidence lyrics of a song, “Man Killer,” allegedly authored by defendant and containing lyrics about a murder, including “I’ll take the keys to your car”, “I’m just the...
In this child sexual abuse case, the State’s treating medical experts did not vouch for the victim’s credibility. The court noted that defendant’s argument appears to be based primarily on the fact that the experts testified about the problems reported by the victim without qualifying each...
In this homicide case where the defendant was charged with murdering his wife, the trial court properly allowed forensic psychologist Ginger Calloway to testify about a report she prepared in connection with a custody proceeding regarding the couple’s children. The report contained, among other...
Because defendant engaged in repeated conduct designed to delay and obfuscate the proceedings, including refusing to answer whether he wanted the assistance of counsel, he forfeited his right to counsel. Citing State v. Leyshon, 211 N.C. App. 511 (2011), the court began by holding that...
In this homicide case where the defendant was charged with murdering his wife, that the trial court did not err by allowing the State’s expert witness pathologists to testify that the victim’s cause of death was “homicide[.]” It concluded:
The pathologists in this case were tendered as...
Because defendant engaged in repeated conduct designed to delay and obfuscate the proceedings, including refusing to answer whether he wanted the assistance of counsel, he forfeited his right to counsel. Citing State v. Leyshon, 211 N.C. App. 511 (2011), the court began by holding that...
Although the trial court erred by failing to fully comply with the statutory requirements regarding a charge conference at the sentencing phase of this felony child abuse case, no material prejudice resulted. The court noted that G.S. 15A-1231(b) requires the trial court to hold a charge...
The trial court did not err by denying defendant’s request for an instruction on duress or necessity as a defense to possession of a firearm by a felon. On appeal, defendant urged the court to adopt the reasoning of United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000), an opinion...
In this felony child abuse case, the trial court did not commit plain error by admitting testimony from an investigating detective that the existence of the victim’s hairs in a hole in the wall of the home where the incident occurred was inconsistent with defendant’s account of the incident,...
In this homicide case in which defendant was found guilty of second-degree murder, the trial court did not err by denying defendant’s request to instruct the jury on voluntary manslaughter based on imperfect self-defense. The trial court instructed the jury on first-degree murder, second-degree...
The trial court erred by enhancing under G.S. 50B-4.1(d) defendant’s conviction for assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI) and attempted second-degree kidnapping. G.S. 50B-4.1(d) provides that a person who commits another felony knowing that the...
(1) The trial court did not err by denying defendant’s motion for post-conviction DNA testing under G.S. 15A-269. Defendant’s motion contained only the following conclusory statement regarding materiality: “The ability to conduct the requested DNA testing is material to defendant[’]s defense...
(1) The trial court did not err by denying defendant’s motion for post-conviction DNA testing under G.S. 15A-269. Defendant’s motion contained only the following conclusory statement regarding materiality: “The ability to conduct the requested DNA testing is material to defendant[’]s defense...
Although the issue does not appear to have been raised by the defendant on appeal in this second-degree murder case, the court noted: “[O]ur review of the record shows defendant was arrested on 1 September 2009 and was tried in August and September of 2013, almost four years later. . . . The...
Where counsel stated at the revocation hearing that defendant acknowledged that he had received a probation violation report and admitted the allegations in the report and defendant appeared and participated in the hearing voluntarily, the defendant waived the notice requirement of G.S. 15A-1345...
In this felony child abuse case the trial court erred by failing to provide an adequate instruction on the especially heinous, atrocious, or cruel (EHAC) aggravating factor. Rather than adapting the EHAC pattern instruction used in capital cases or providing any “narrowing definitions” that are...
Because the trial court revoked defendant’s probation before the period of probation expired, the court rejected defendant’s argument that under G.S. 15A-1344(f) the trial court lacked jurisdiction to revoke.
The trial court committed plain error by instructing the jury on sexual offense with a child by an adult offender under G.S. 14-27.4A when the indictment charged the defendant with first-degree sexual offense in violation of G.S. 14-27.4(a)(1), a lesser-included of the G.S. 14-27.4A crime. The...
In this homicide case, the trial court did not err by admitting evidence of four firearms found in the car when the defendant was arrested following a traffic stop. The State offered the evidence to show the circumstances surrounding defendant’s flight. Defendant argued that the evidence was...
In this rape case involving an 82-year-old victim, the court rejected defendant’s argument that the trial court erred by failing to instruct the jury that it could not use the same evidence to find both the element of mental injury for first-degree rape and the aggravating factor that the victim...
(1) In this child sexual abuse case, testimony from a psychologist, Ms. Bellis, who treated the victim did not constitute expert testimony that impermissibly vouched for the victim’s credibility. Bellis testified, in part, that the victim “came in because she had been molested by her older...
The defendant was competent to stand trial and to represent himself. As to competency to stand trial, the defendant had several competency evaluations and hearings; the court rejected the defendant’s argument that a report of the one doctor who opined that he was incompetent was determinative of...
The trial court did not err by denying the pro se defendant’s motion for mistrial asserting that the jury was prejudiced against him. The record revealed that members of the jury did seem to be frustrated with the pro se defendant who was disruptive in court and asked rambling and irrelevant...
In this felony indecent exposure case where the defendant exposed himself to a 14-year old boy, his mother and grandmother, the trial court did not err by admitting 404(b) evidence from two adult women who testified that the defendant exposed himself in public on other occasions. The court...
A defendant who pleaded guilty to felony possession of marijuana had no right to appeal the trial court’s order forfeiting $400 in cash seized from his car under G.S. 90-112(a)(2).
The defendant was competent to stand trial and to represent himself. As to competency to stand trial, the defendant had several competency evaluations and hearings; the court rejected the defendant’s argument that a report of the one doctor who opined that he was incompetent was determinative of...
The Fourth Amendment’s exclusionary rule does not apply in civil drivers’ license revocation proceedings. The evidence used in the proceeding was obtained as a result of an unconstitutional stop; after the same evidence previously had been used to support criminal charges, it was suppressed and...
In this drug trafficking case in which the defendant was prosecuted for possessing and transporting drugs in his car, the trial court erred by admitting evidence of drug contraband found in a home. The defendant picked up two boxes from suspected drug trafficker Travion Stokes, put them in his...
In this drug trafficking case, the trial court did not commit plain error by finding that officers had reasonable suspicion to stop the defendant’s vehicle. The court began by rejecting the State’s argument that the defendant’s evasive action while being followed by the police provided...
The trial court did not err by denying the defendant’s motion to suppress DNA evidence obtained from his discarded cigarette butt. When the defendant refused to supply a DNA sample in connection with a rape and murder investigation, officers sought to obtain his DNA by other means. After the...
The trial court did not err by denying the defendant’s motion to suppress DNA evidence obtained from his discarded cigarette butt. When the defendant refused to supply a DNA sample in connection with a rape and murder investigation, officers sought to obtain his DNA by other means. After the...
In this sexual assault case, no plain error occurred when a pediatric nurse practitioner testified to the opinion that her medical findings were consistent with the victim’s allegation of sexual abuse. The nurse performed a physical examination of the victim. She testified that in girls who are...
The trial court erred by ordering, under threat of contempt, that defense counsel’s legal assistant appear as a witness for the State. The State served the assistant with a subpoena directing her to appear to testify on the weeks of Friday, November 8, 2013, Monday, December 2, 2013, and Monday...
In this malicious maiming case, the trial court did not err by instructing the jury on a theory that was not alleged in the indictment. The indictment alleged that the defendant “put out” the victim’s eye. The jury instructions told the jury it could convict if it found that the defendant “...
In this malicious maiming case, the court rejected the defendant’s argument that the trial court erred by disjunctively instructing the jury that it could convict him if it found that he had “disabled or put out” the victim’s eye. Relying on cases from other jurisdictions, the court held that...
The defendant was properly convicted of two counts of indecent liberties with victim Melissa in Caldwell County. The State presented evidence that the defendant had sex with his girlfriend in the presence of Melissa, performed oral sex on Melissa, and then forced his girlfriend to perform oral...
In this sexual assault case, the State was not excused by G.S. 130A-143 (prohibiting the public disclosure of the identity of persons with certain communicable diseases) from pleading in the indictment the existence of the non-statutory aggravating factor that the defendant committed the sexual...
The evidence was sufficient to establish obtaining property by false pretenses. After the defendant filed false documents purporting to give him a property interest in a home, he was found to be occupying the premises and arrested. The court rejected the defendant’s argument that the evidence...
In this assault and second-degree murder case, the trial court did not err by refusing to instruct the jury on self-defense and by omitting an instruction on voluntary manslaughter. The court noted that the defendant himself testified that when he fired the gun he did not intend to shoot anyone...
In this habitual impaired driving case, the trial court did not err in admitting the defendant’s blood test results into evidence. The court rejected the defendant’s argument that the officer’s failure to re-advise him of his implied consent rights before the blood draw violated both G.S. 20-16....
In this assault and second-degree murder case, the trial court did not err by refusing to instruct the jury on self-defense and by omitting an instruction on voluntary manslaughter. The court noted that the defendant himself testified that when he fired the gun he did not intend to shoot anyone...
In this child sexual abuse case, the trial court properly admitted 404(b) evidence from several witnesses. As to two of the witnesses, the defendant argued that the incidents they described were too remote and insufficiently similar. The court concluded that although the sexual abuse of these...
The trial court did not err by convicting the defendant of both robbery with a dangerous weapon and assault with a deadly weapon where each conviction arose from discrete conduct.
With respect to a sexual offense charge allegedly committed on Melissa in Burke County, the court held that the State failed to present substantial evidence that a sexual act occurred. The only evidence presented by the State regarding a sexual act that occurred was Melissa’s testimony that the...
The trial court erred by ordering, under threat of contempt, that defense counsel’s legal assistant appear as a witness for the State. The State served the assistant with a subpoena directing her to appear to testify on the weeks of Friday, November 8, 2013, Monday, December 2, 2013, and Monday...
The trial court erred by sentencing the defendant for both assault inflicting serious bodily injury under G.S. 14-32.4(a) and assault with a deadly weapon inflicting serious injury under G.S. 14-32(b), when both charges arose from the same assault. The court reasoned that G.S. 14-32(b) prohibits...
In this assault and second-degree murder case, the trial court did not err by denying the defendant’s request to instruct the jury on involuntary manslaughter. Involuntary manslaughter is a killing without malice. However, where death results from the intentional use of a firearm or other deadly...
(1) The trial court lacked jurisdiction to revoke the defendant’s probation and activate her suspended sentences where the defendant committed her offenses prior to 1 December 2009 but had her revocation hearing after 1 December 2009 and thus was not covered by either statutory provision—G.S....
The trial court did not err by convicting the defendant of both robbery with a dangerous weapon and assault with a deadly weapon where each conviction arose from discreet conduct.
In this sexual assault case, the State was not excused by G.S. 130A-143 (prohibiting the public disclosure of the identity of persons with certain communicable diseases) from pleading in the indictment the existence of the non-statutory aggravating factor that the defendant committed the sexual...
(1) The trial court did not err by relying on the federal SORNA statute to deny the defendant’s petition to terminate his sex offender registration. The language of G.S. 14-208.12A shows a clear intent by the legislature to incorporate the requirements of SORNA into NC’s statutory provisions...
Because there was an insufficient factual basis to support an Alford plea that included an admission to aggravating factors, the court vacated the plea and remanded for proceedings on the original charge. The defendant was charged with the first-degree murder of his wife. He entered an...
Because there was an insufficient factual basis to support an Alford plea that included an admission to aggravating factors, the court vacated the plea and remanded for proceedings on the original charge. The defendant was charged with the first-degree murder of his wife. He entered an...
The court rejected the defendant’s argument that the trial court did not appreciate that a resentencing hearing must be de novo.
The trial court did not err by ordering the defendant to serve a habitual felon sentence consecutive to sentences already being served. The defendant argued that the trial court “misapprehend[ed]” the law “when it determined that it did not have the discretion to decide” to run the defendant’s...
In a failing to register case the trial court did not err by allowing the State to amend the indictment and expand the dates of offense from 7 November 2012 to June to November 2012. It reasoned that the amendment did not substantially alter the charge “because the specific date that defendant...
The trial court did not err by denying the defendant’s motion to dismiss on grounds of excessive pre-indictment delay. A challenge to a pre-indictment delay is predicated on an alleged violation of the due process clause. To prevail, a defendant must show both actual and substantial prejudice...
In a failing to register case there was sufficient evidence that the defendant changed his address from Burke to Wilkes County. Among other things, a witness testified that the defendant was at his ex-wife Joann’s home in Wilkes County all week, including the evenings. The court concluded: “the...
When determining whether an officer had reasonable suspicion to stop the defendant’s vehicle, the trial court properly considered statements made by other officers to the stopping officer that the defendant’s vehicle had weaved out of its lane of travel several times. Reasonable suspicion may...
(1) In a failing to register case the indictment was not defective. The indictment alleged that the defendant failed to provide 10 days of written notice of his change of address to “the last registering sheriff by failing to report his change of address to the Wilkes County Sheriff’s Office.”...
In a failure to register (change of address) case, the court rejected the defendant’s argument that the trial court violated his right to a unanimous verdict because it was not possible to determine the theory upon which the jury convicted. The trial court instructed the jury, in part, that the...
In a sexual assault case involving DNA evidence, the trial court did not err by excluding as irrelevant defense evidence that police department evidence room refrigerators were moldy and that evidence was kept in a disorganized and non-sterile environment where none of the material tested in the...
In a sex offender residential restriction case, the court held that because GPS tracking reports were non-testimonial business records, their admission did not violate the defendant’s confrontation rights. The GPS records were generated in connection with electronic monitoring of the defendant,...
In a case in which the defendant was convicted of kidnapping, rape and sexual assault, because the restraint supporting the kidnapping charge was inherent in the rape and sexual assault, the kidnapping conviction cannot stand. The court explained:
Defendant grabbed Kelly from...
The court rejected the defendant’s argument that the trial court failed to make the proper inquiry required by G.S. 15A-1242 before allowing him to proceed pro se, concluding that the defendant’s actions “absolved the trial court from this requirement” and resulted in a forfeiture of the right...
An indictment charging felony peeping was not defective. Rejecting the defendant’s argument that the indictment was defective because it failed to allege that the defendant’s conduct was done without the victim’s consent, the court concluded that “any charge brought under N.C.G.S. § 14-202...
The trial court properly denied the defendant’s motion to dismiss the charge of resisting, delaying, or obstructing a public officer where the evidence showed that the defendant refused to provide the officer with his identification so that the officer could issue a citation for a seatbelt...
In this DWI case, the court rejected the defendant’s argument that the State deprived him of equal protection by initiating the proceeding using a presentment instead of a citation. A rational basis (judicial economy) supported use of a presentment.
In this DWI case, the trial court did not impermissibly express an opinion when instructing the jury regarding the admissibility of breath test results.
In an interfering with a witness case, the trial court properly instructed the jury that the first element of the offense was that “a person was summoned as a witness in a court of this state. You are instructed that it is immaterial that the victim was regularly summoned or legally bound to...
Because the defendant would not allow the trial to proceed while representing himself, the trial court did not err by denying the defendant the right to continue representing himself and forcing him to accept the representation of a lawyer who had been serving as standby counsel.
In a peeping case, the trial court did not abuse its discretion by allowing the prosecutor to ask leading questions of the victim; the questions were not leading because they did not suggest an answer.
The trial court did not improperly base its sentencing decision on the defendant’s decision to reject an offered plea agreement and go to trial. However, the court repeated its admonition that “judges must take care to avoid using language that could give rise to an appearance that improper...
Based on assessments from mental health professionals and the defendant’s own behavior, the trial court did not abuse its discretion by ruling that the defendant was competent to represent himself at trial.
The court rejected the defendant’s argument that the right to have a witness present for blood alcohol testing performed under G.S. 20-16.2 applies to blood draws taken pursuant to a search warrant. The court also rejected the defendant’s argument that failure to allow a witness to be present...
(1) In this DWI case, the court rejected the defendant’s invitation to decide whether G.S. 20-179(d)(1) (aggravating factor to be considered in sentencing of gross impairment or alcohol concentration of 0.15 or more) creates an unconstitutional mandatory presumption. Defendant challenged that...
The trial court properly denied the defendant’s motion to suppress the results of the chemical analysis of his breath. The defendant argued that the officer failed to comply with the statutory requirement of a 15 minute “observation period” prior to the administration of the test. The...
In an assault on an officer case, the court rejected the defendant’s argument that evidence of his two assaults on law enforcement officers should be excluded as fruits of the poisonous tree because his initial arrest for resisting an officer was unlawful. The doctrine does not exclude evidence...
The trial court did not err by denying the defendant’s motion for a mistrial where the motion was based on the defendant’s own misconduct in the courtroom.
The State conceded and the court held that the trial court erred by requiring the defendant to submit to lifetime SBM. The trial court imposed SBM based on its determination that the defendant’s conviction for first-degree rape constituted an “aggravated offense” as defined by G.S. 14-208.6(1a...
In this DWI case, the court rejected the defendant’s argument that comments made during the prosecutor’s final argument and detailed in the court’s opinion were so grossly improper that the trial court should have intervened ex mero motu. Among the challenged comments were those relating to the...
The court rejected the defendant’s argument that the right to have a witness present for blood alcohol testing performed under G.S. 20-16.2 applies to blood draws taken pursuant to a search warrant. The court also rejected the defendant’s argument that failure to allow a witness to be present...
The trial court erred by entering judgment and sentencing the defendant on both three counts of habitual violation of a DVPO and one count of interfering with a witness based on the same conduct (sending three letters to the victim asking her not to show up for his court date). The DVPO statute...
The State conceded and the court held that by sentencing the defendant for both first-degree kidnapping and the underlying sexual assault that was an element of the kidnapping charge a violation of double jeopardy occurred.
(1) Even if counsel provided deficient performance by informing the trial court, with the defendant’s consent, that the defendant wanted to go to trial and “take the chance that maybe lightning strikes, or I get lucky, or something,” no prejudice was shown. (2) The court declined the defendant’s...
The trial court erred by sentencing the defendant for both habitual misdemeanor assault and assault on a female where both convictions arose out of the same assault. The statute provides that “unless the conduct is covered under some other provision of law providing greater punishment,” an...
In a rape case, the trial court erred by excluding defense evidence that the victim and her neighbor had a consensual sexual encounter the day before the rape occurred. This prior sexual encounter was relevant because it may have provided an alternative explanation for the existence of semen in...
The court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss the charge of assault causing physical injury on a law enforcement officer, which occurred at the local jail. After arresting the defendant, Captain Sumner transported the defendant to jail,...
The trial court’s oral, in-court denial of the defendant’s motions, memorialized on form AOC-CR-305 (Judgment/order or other disposition) constituted entry of an order notwithstanding the fact that the trial judge stated that “ADA Mark Stevens will prepare the order” and no such order was...
Noting that the sufficiency of a petition alleging a juvenile to be delinquent is evaluated by the same standards that apply to indictments, the court held that petitions alleging two acts of sexual offense and two acts of crime against nature were sufficient. In addition to tracking the...
There was no fatal variance in a resisting an officer case where the indictment alleged that the defendant refused to drop what was in his hands (plural) and the evidence showed that he refused to drop what was in his hand (singular). The variance was not material.
Relying on State v. Meadows, 201 N.C. App. 707 (2010) (trial court abused its discretion by allowing an officer to testify that substances were cocaine based on NarTest field test), the court held that the trial abused its discretion by admitting an officer’s testimony that narcotics...
The trial court did not err by denying the defendant’s motion to suppress. The State established inevitable discovery with respect to a search of the defendant’s vehicle that had previously been illegally seized where the evidence showed that an officer obtained the search warrant for the...
(1) In this impaired driving case, there was insufficient evidence that a cut through on a vacant lot was a public vehicular area within the meaning of G.S. 20-4.01(32). The State argued that the cut through was a public vehicular area because it was an area “used by the public for vehicular...
There was insufficient evidence to support a conviction of resisting an officer in a case that arose out of the defendant’s refusal to allow the officer to search him pursuant to a search warrant. Because the arresting officer did not read or produce a copy of the warrant to the defendant prior...
Even if the defendant had properly preserved the issue, the officer did not use excessive force by taking the defendant to the ground during a valid traffic stop.
In this drug and drug conspiracy case, the trial court did not abuse its discretion by denying the defendant’s request for additional time to locate an alleged co-conspirator and his motion to reopen the evidence so that witness could testify when he was located after the jury reached a verdict...
The trial court did not err by allowing the defendant to waive his right to counsel and proceed pro se. Notwithstanding the defendant’s refusal to acknowledge that he was subject to court’s jurisdiction, the trial court was able to conduct a colloquy that complied with G.S. 15A-1242. The court...
The court rejected the juvenile’s argument that to prove first-degree statutory sexual offense and crime against nature the prosecution had to show that the defendant acted with a sexual purpose.
The trial court did not abuse its discretion by denying the defendant’s motion to sever where the offenses had a transactional connection (he was charged with breaking into three beachfront residences within 2.5 miles of each other and within a three-day span).
In a child sexual abuse case, the trial court did not violate the defendant’s right to a public trial by closing the courtroom for part of the victim’s testimony. The trial court made the requisite inquiries under Waller and made appropriate findings of fact supporting closure.
The court held that trial court was not required to hold an evidentiary hearing on the defendant’s motion, noting:
[A] trial court is not required to conduct an evidentiary hearing where it can determine from the trial record and the information in the motion that the defendant has failed...
No plain error occurred when the trial court in its preliminary instructions before jury selection referred to reasonable doubt as “fair doubt” but correctly defined that term in its final instructions to the jury.
Where no hearsay statements were admitted at trial, the confrontation clause was not implicated.
Even if the defendant had properly preserved the issue, a frisk conducted during a valid traffic stop was proper where the officer knew that the defendant had prior drug convictions; the defendant appeared nervous; the defendant deliberately concealed his right hand and refused to open it...
In this drug and drug conspiracy case, the trial court did not abuse its discretion by denying the defendant’s request for additional time to locate an alleged co-conspirator and his motion to reopen the evidence so that witness could testify when he was located after the jury reached a verdict...
In a possession of cocaine case, the evidence was sufficient to prove that the defendant constructively possessed cocaine. The drugs were found on the ground near the rear driver’s side of the defendant’s car after an officer had struggled with the defendant. Among other things, video from the...
(1) In a delinquency case where the petitions alleged sexual offense and crime against nature in that the victim performed fellatio on the juvenile, the court rejected the juvenile’s argument that the petitions failed to allege a crime because the victim “was the actor.” Sexual offense and crime...
(1) In a delinquency case where the petitions alleged sexual offense and crime against nature in that the victim performed fellatio on the juvenile, the court rejected the juvenile’s argument that the petitions failed to allege a crime because the victim “was the actor.” Sexual offense and crime...
Finding State v. Euceda-Valle, 182 N.C. App. 268, 276 (2007), controlling, the court held that there was insufficient evidence that the defendant and another person named Hall conspired to sell and deliver cocaine. The evidence showed only that the drugs were found in a car driven by...
Shoeprint evidence and evidence that the defendant possessed the victim’s Bose CD changer and radio five months after they were stolen was sufficient to sustain the defendant’s convictions for burglary and larceny.
In this child sexual abuse case, the trial court did not err by referring to the victim as the “alleged victim” in its opening remarks to the jury and referring to her as “the victim” in its final jury instructions. The court distinguished State v. Walston, 229 N.C. App. 141 (2013),...
The post-conviction DNA testing statute does not require the trial court to make findings of fact when denying a motion. “A trial court’s order is sufficient so long as it states that the court reviewed the defendant’s motion, cites the statutory requirements for granting the motion, and...
(1) The trial court properly denied the defendant’s motion for post-conviction DNA testing. The defendant was convicted of murdering his wife; her body was discovered in a utility shop behind their home. He sought DNA testing of five cigarettes and a beer can that were found in the utility shop...
Noting that the sufficiency of a petition alleging a juvenile to be delinquent is evaluated by the same standards that apply to indictments, the court held that petitions alleging two acts of sexual offense and two acts of crime against nature were sufficient. In addition to tracking the...
In this child sexual abuse case, the trial court erred by denying the defendant’s motion to dismiss first-degree sex offense charges where there was no substantive evidence of a sexual act; the evidence indicated only vaginal penetration, which cannot support a conviction of sexual offense.
In a burglary and felony larceny case, an officer properly offered lay opinion testimony regarding a shoeprint found near the scene. The court found that the shoeprint evidence satisfied the Palmer “triple inference” test:
[E]vidence of shoeprints has no legitimate or...
There was sufficient evidence that the defendants conducted a sweepstakes through the use of an entertaining display, including the entry process or the revealing of a prize in violation of G.S. 14-306.4. The court rejected the defendants’ argument that because the prize was revealed to the...
In a child sexual assault case, the trial court erred by finding that the defendant’s statements were made involuntarily. Although the court found that an officer made improper promises to the defendant, it held, based on the totality of the circumstances, that the statement was voluntarily....
A search of the defendant’s garage pursuant to a search warrant was improper. Following up on a tip that the defendant was growing marijuana on his property, officers went to his residence. They knocked on the front door but received no response. They then went to the back of the house because...
(1) Where the defendant and his accomplices attempted to rob two victims inside a residence, the trial court properly denied the defendant’s motion to dismiss one of the charges. The defendant argued that because only one residence was involved, only one charge was proper. Distinguishing cases...
In a sexual offense case involving fellatio, proof of penetration is not required.
In a child sexual assault case, the trial court did not err by denying the defendant’s motion to continue, made on grounds that defense counsel learned of a potential defense witness on the eve of trial. Specifically, defense counsel learned that a psychologist prepared reports on the defendant...
Relying on State v. Drdak, 330 N.C. 587, 592-93 (1992), and State v. Davis, 142 N.C. App. 81 (2001), the court held that where an officer obtained a blood sample from the defendant pursuant to a search warrant after the defendant refused to submit to a breath test of his blood...
In a case where the defendant was convicted of second-degree rape, breaking or entering, and two counts of attempted second-degree sexual offense, the trial court did not err by denying the defendant’s motion to dismiss one count of attempted second-degree sexual offense. The defendant asserted...
The court rejected the defendant’s argument that she was in custody within the meaning of Miranda during an interview at the police station about her missing child. The trial court properly used an objective test to determine whether the interview was custodial. Furthermore competent...
The trial court did not err by finding that the defendant’s statements were given freely and voluntarily. The court rejected the defendant’s argument that they were coerced by fear and hope. The court held that an officer’s promise that the defendant would “walk out” of the interview regardless...
In this murder case, the trial court did not abuse its discretion by overruling the defendant’s objections to the State’s closing argument. Although the prosecutor’s remarked that the case was one of “the most gruesome and violent murders this community has ever seen,” the comment related...
Where the trial court miscalculated the defendant’s prior record level but where a correction in points would not change the defendant’s sentence, the court treated the error as clerical and remanded for correction. A dissenting judge would have concluded that the error was judicial not clerical...
The court rejected the defendant’s argument that his confrontation clause rights were violated when the trial court released an out-of-state witness from subpoena. The State subpoenaed the witness from New York to testify at the trial. The witness testified at trial and the defendant had an...
In a murder case, the trial court did not err by admitting testimony concerning nine-millimeter ammunition and a gun found at the defendant’s house. Evidence concerning the ammunition was relevant because it tended to link the defendant to the scene of the crime, where eleven shell casings of...
In a case where the defendant was convicted of first-degree murder and sentenced to life in prison, the trial court did not abuse its discretion by denying the defendant’s mistrial motions based on juror misconduct and refusing the defendant’s request to make further inquiry into whether other...
No error occurred when the State’s experts in a sexual assault case testified that the victim’s physical injuries were consistent with the sexual assault she described.
In a murder case, the trial court did not err by admitting testimony concerning nine-millimeter ammunition and a gun found at the defendant’s house. Evidence concerning the ammunition was relevant because it tended to link the defendant to the scene of the crime, where eleven shell casings of...
No plain error occurred in a sexual assault case where the trial court referred to “the victim” in its jury instructions.
In this drug case, the trial court erred by denying the defendant’s request for an instruction on entrapment. The court agreed with the defendant that the plan to sell the pills originated in the mind of the defendant’s friend Eudy, who was acting as an agent for law enforcement, and the...
The court remanded for correction of a clerical error. Specifically, the trial court found at the sentencing hearing that the defendant was a PRL IV offender and ordered him to pay $6,841.50 in attorney’s fees. However, the judgment incorrectly listed him at PRL II and stated that the defendant...
The trial court did not abuse its discretion by allowing the State to admit, for purposes of corroboration, a prior consistent statement made by a State’s witness. The court rejected the defendant’s argument that the prior statement differed significantly from the witness’s trial testimony.
(1) Where the defendant was charged with two counts of felony assault on two separate victims, no error occurred where in its jury instruction the trial court referred to “the victim.” The defendant argued that the trial court erred by failing to instruct the jury to consider each offense...
The trial court did not abuse its discretion by joining charges for trial. The defendant was indicted for: two counts of possession of a firearm by a felon; first-degree murder of Frink; two counts of assault with a deadly weapon with intent to kill inflicting serious injury; two counts of...
Although the trial court erred in accepting the defendant’s admission to an aggravating factor without complying with G.S. 15A-1022, as required by G.S. 15A-1022.1, the error was harmless beyond a reasonable doubt based on the uncontroverted and overwhelming evidence of the relevant factor.
No plain error occurred with respect to the trial court’s final mandate to the jury on a first-degree murder charge. The trial court instructed the jury that it could find the defendant guilty of first-degree murder as to victim Frink under the following theories: premeditation and deliberation...
The evidence was sufficient to prove a trafficking amount of methamphetamine. The court rejected the defendant’s argument that the entire weight of a mixture containing methamphetamine at an intermediate stage in the manufacturing process cannot be used to support trafficking charges because the...
A short form indictment charging the defendant with attempted first degree murder was defective. The indictment failed to allege that the defendant acted with “malice aforethought” as required by G.S. 15-144 (short form murder indictment). The court remanded for entry of judgment on the lesser...
The court remanded for correction of a clerical error where the defendant was convicted of assault with a deadly weapon but the trial court entered judgment for AWDWIK.
The defendant had no statutory right to appeal from a guilty plea to DWI where none of the exceptions to G.S. 15A-1444(e) applied.
The trial court did not err by denying the defendant’s motion to suppress evidence obtained as a result of a vehicle checkpoint. The checkpoint was conducted for a legitimate primary purpose of checking all passing drivers for DWI violations and was reasonable.
Even if the magistrate erred by ordering an “option bond” that gave the defendant a choice between paying a $1,000 secured bond or a $1,000 “unsecured bond and being released to a sober, responsible adult” without making written findings of fact to support the secured bond, the defendant failed...
The evidence was sufficient to show that a larceny of a laptop was from the victim’s person. At the time the laptop was taken, the victim took a momentary break from doing her homework on the laptop and she was about three feet away from it. Thus, the court found that the laptop was within her...
There was sufficient evidence of manufacturing methamphetamine. An officer observed the defendant and another person at the scene for approximately 40 minutes. Among the items recovered were a handbag containing a syringe and methamphetamine, a duffle bag containing a clear two liter bottle...
The trial court erred by instructing pursuant to G.S. 14-51.4 (justification for defensive force not available) where the statute, enacted in 2011, did not apply to the 2006 incident in question.
Where the warrant charging contributing to the abuse or neglect of a juvenile alleged, in part, that the defendant knowingly caused, encouraged, and aided the child “to commit an act, consume alcoholic beverage,” the State was not prohibited from showing that the defendant also contributed to...
In a case where the defendant was convicted of sexual battery and contributing to the abuse or neglect of a juvenile, the trial court did not err by failing to intervene ex mero motu during the prosecutor’s final argument to the jury. The defendant challenged the prosecutor’s statement that he...
The trial court properly denied the defendant’s Knoll motion, in which the defendant argued that he was denied his right to communicate with counsel and friends. The defendant had several opportunities to call counsel and friends to observe him and help him obtain an independent...
The evidence was sufficient to show a drug trafficking conspiracy where there was evidence of an implied agreement between the defendant and his accomplice. The defendant was present at the scene and aware that his accomplice was involved producing methamphetamine and there was sufficient...
In an attempted murder case, counsel did not commit a Harbison error when he stated during closing argument: “You have heard my client basically admit that while pointing the gun at someone, he basically committed a crime: Assault by pointing a gun.” Because assault by pointing a gun is...
The evidence was sufficient to show a drug trafficking conspiracy where there was evidence of an implied agreement between the defendant and his accomplice. The defendant was present at the scene and aware that his accomplice was involved producing methamphetamine and there was sufficient...
The trial court properly granted the defendant’s motion to suppress where no probable cause supported the defendant’s arrest for impaired driving and unsafe movement. The defendant was arrested after he left a bar, got in his SUV and backed into a motorcycle that was illegally parked behind him...
(1) Following, State v. Stevens, 228 N.C. App. 352 (2013), the court held that the offense of contributing to a juvenile’s being delinquent, undisciplined, abused or neglected (G.S. 14-316.1) does not require the defendant to be the juvenile’s parent, guardian, custodian, or caretaker;...
Although the trial court erred by admitting evidence of the numerical result of an Alco-sensor test during a pretrial hearing on the defendant’s motion to suppress, a new trial was not warranted. The numerical results were admitted only in the pre-trial hearing, not at trial and even without the...
The evidence was sufficient to establish that the defendant constructively possessed the methamphetamine and drug paraphernalia. Agreeing with the defendant that the evidence tended to show that methamphetamine found in a handbag belonged to the defendant’s accomplice, the court found there was...
Probable cause supported the defendant’s arrest for DWI. When the officer stopped the defendant at a checkpoint, the defendant had bloodshot eyes and a moderate odor of alcohol. The defendant admitted to “drinking a couple of beers earlier” and that he “stopped drinking about an hour” before...
In this felony breaking and entering and larceny case where the victim discovered the defendant in his home, the trial court did not err by instructing the jury regarding flight where the victim testified that when he approached his front door and saw the defendant in his living room, the...
In this felony breaking and entering and larceny case, the trial court did not commit plain error by denying the defendant’s motion to suppress the victim’s show-up identification of the defendant as the person he found in his home on the date in question. Among other things, the court noted...
In this felony breaking and entering and larceny case the trial court did not violate G.S. 15A-1234 when responding to a question by the deliberating jury. The defendant argued that the trial failed to afford counsel an opportunity to be heard before responding the jury’s question about the...
In this rape and murder case in which the old “Howerton” version of Rule 702 applied, the court rejected the defendant’s argument that opinion testimony by the State’s medical examiner experts as to cause of death was unreliable and should not have been admitted. The court concluded:...
The trial court did not err by admitting in-court identification of the defendant by two officers. The defendant argued that the trial court erred in denying his motion to suppress the officers’ in-court identifications because the procedure they used to identify him violated the Eyewitness...
A search of the defendant’s living area, which was connected to his wife’s store, was valid where his wife consented to the ALE officers’ request to search the living area.
NC A&T campus police had territorial jurisdiction to execute a search warrant at the defendant’s off-campus private residence where A&T had entered into a Mutual Aid agreement with local police. The Agreement gave campus police authority to act off-campus with respect to offenses...
The trial court did not err by admitting in-court identification of the defendant by two officers. The defendant argued that the trial court erred in denying his motion to suppress the officers’ in-court identifications because the procedure they used to identify him violated the Eyewitness...
In this felony death by vehicle case, even without evidence of the defendant’s blood-alcohol, the evidence was sufficient to establish that the defendant was impaired. When an officer interviewed the defendant at the hospital, she admitted drinking “at least a 12-pack.” The defendant admitted at...
Although an officer “inappropriately” took documents related to the defendant’s civil action against A&T and covered by the attorney-client privilege during his search of her residence, the trial court properly suppressed this material and the officer’s actions did not otherwise invalidate...
Although a search of the defendant’s vehicle was not proper under Gant, it was authorized under the automobile exception where officers had probable cause that the vehicle contained marijuana. After officers saw a vehicle execute a three-point turn in the middle of an intersection,...
A search of the defendant’s recording studio was proper. After the officers developed probable cause to search the recording studio but the defendant declined to give consent to search, the officers “froze” the scene and properly obtained a search warrant to search the studio.
In this rape and murder case, the trial court did not abuse its discretion by denying the defendant’s motion to change venue. All of the jurors either indicated that they had no prior knowledge of the incident or if they had read about it, they could put aside their knowledge about the case. The...
In this rape and murder case, no Fourth Amendment violation occurred when an officer seized a cigarette butt containing the defendant’s DNA. The defendant, a suspect in a murder case, refused four requests by the police to provide a DNA sample. Acting with the primary purpose of obtaining a...
The trial court committed reversible error by failing to instruct the jury to disregard evidence about the defendant’s habitual felon indictment when that evidence was elicited during the trial on the underlying charges. Although the trial court sustained defense counsel’s objection and...
In a case involving unlawful access to computers and identity theft, a search warrant authorizing a search of the defendant and her home and vehicle was supported by probable cause. The court rejected the defendant’s argument that hearsay evidence was improperly considered in the probable cause...
In a case in which the defendant was charged with trafficking in cocaine by manufacturing, the trial court did not commit plain error by failing to instruct the jury on manufacturing cocaine. The evidence showed that the defendant possessed cocaine and a mixture of cocaine and rice that exceeded...
An indictment charging trafficking by manufacturing was not defective. The court rejected the defendant’s argument that the indictment was fatally defective because it did not adequately describe the manner in which the defendant allegedly manufactured cocaine. It reasoned: “Although Defendant...
(1) The trial court did not commit plain error by failing to instruct the jury that to convict the defendant for trafficking by compounding it had to find he did so with an intent to distribute. Because the evidence showed that the defendant also manufactured by packaging and repackaging, the...
(1) The trial court did not commit plain error by failing to instruct the jury that to convict the defendant for trafficking by compounding it had to find he did so with an intent to distribute. Because the evidence showed that the defendant also manufactured by packaging and repackaging, the...
Falsely stating an address on any verification form required by the sex offender registration program supports a conviction for failing to register as a sex offender. The court rejected the defendant’s argument that the only verification forms that count are the initial verification form and...
In a first-degree murder case, the court rejected the defendant’s argument that the trial court made an improper judicial comment on his dangerousness in violation G.S. 15A-1222 and -1232. The defendant had argued that the trial court’s decision to order additional security after his mid-trial...
In a child sexual assault case, the trial court did not err by refusing the defendant’s request to instruct the jury that it could consider evidence concerning his character for honesty and trustworthiness as substantive evidence of his guilt or innocence. At trial, five witnesses testified that...
(1) In a child sexual assault case, the trial court did not err by refusing the defendant’s request to instruct the jury that it could consider evidence concerning his character for honesty and trustworthiness as substantive evidence of his guilt or innocence. At trial, five witnesses testified...
In a child sexual assault case, the trial court did not err by failing to instruct the jury on the defense of accident as requested by the defendant. The defendant, who assisted high school sports teams, was charged with sexual offense and indecent liberties with students in connection with...
(1) In a delivery of cocaine case where the defendant presented sufficient evidence of the essential elements of entrapment, the trial court erred by refusing to instruct the jury on that defense. The defendant’s evidence showed that an undercover officer tricked the defendant into believing...
In a first-degree murder case where the defendant attempted to escape mid-trial, causing a lockdown of the courthouse and the trial court to order a security escort for the jury, the trial court’s procedure for inquiring about the juror’s exposure to media coverage was adequate. When court...
In a first-degree murder case, the trial court did not abuse its discretion or violate defendant’s constitutional rights by ordering the defendant to be physically restrained during trial after the defendant attempted to escape mid-trial, causing a lockdown of the courthouse.
In a first-degree murder trial, the trial court did not err by admitting a jail letter that the defendant wrote to an accomplice in “Crip” gang code. In the letter, the defendant asked the accomplice to kill a third accomplice because he was talking to police. Rejecting the defendant’s argument...
In a first-degree murder trial, the trial court did not abuse its discretion by declining to exclude, under Rule 403, evidence of the defendant’s mid-trial escape attempt. The court reasoned: “[T]he jury may have inferred from the fact that defendant attempted to escape that defendant was guilty...
In a delivery of cocaine case the trial court abused its discretion by denying the defendant’s request for an entrapment instruction as a sanction under G.S. 15A-910(a) for failure to provide "specific information as to the nature and extent of the defense" as required by G.S. 15A-905(c)(1)(b)....
The trial court erred by denying the defendant’s motion to dismiss a charge that the defendant was a registered sex offender unlawfully on premises used by minors in violation of G.S. 14-208.18(a). The statute prohibits registered sex offenders from being “[w]ithin 300 feet of any location...
The jury did not return mutually exclusive verdicts when it found the defendant guilty of felony child abuse in violation of G.S. 14-318.4(a3) (the intentional injury version of this offense) and felony child abuse resulting in violation of G.S. 14-318.4(a4) (the willful act or grossly negligent...
An indictment charging the defendant with violating G.S. 14-208.18(a) (prohibiting registered sex offenders from being “[w]ithin 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the...
The superior court lacked jurisdiction to try the defendant for resisting arrest where the defendant was tried on a misdemeanor statement of charges filed in superior court. The State filed the statement of charges on its own, without an objection to the magistrate’s order having been made by...
In this murder case, the trial court did not err by denying the defendant’s motion to dismiss for insufficient evidence as to the aggravating factor that the offense was especially heinous, atrocious, or cruel. Relying on prior N.C. Supreme Court case law, the court rejected the defendant’s...
In this child sex abuse case, the trial court did not err by allowing the State’s expert in pediatric medicine and the evaluation and treatment of sexual abuse to testify about common characteristics she observed in sexually abused children and a possible basis for those characteristics. The...
No error occurred when the trial court denied defense counsel’s request for an overnight recess after having to defend himself against the State’s motion for contempt based on an allegation that counsel violated the court’s order regarding the rape shield rule in connection with his examination...
Remanding for a new sentencing hearing, the court held that the trial court erred when it failed to hold a charge conference before instructing the jury during the sentencing phase of the trial, as required by G.S. 15A-1231(b). The court concluded that holding a charge conference is mandatory,...
In this DWI case, the court held that under Missouri v. McNeely (the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant), exigent circumstances justified the warrantless blood...
The trial court did not abuse its discretion by granting the State’s motion to quash the subpoena of a prosecutor involved in an earlier hearing on the defendant’s guilty plea. The court rejected the defendant’s argument that the prosecutor’s recitation of the factual basis for the plea was a...
The trial court did not err by ordering the defendant to enroll in lifetime SBM. The court rejected the defendant’s argument that the SBM statute violates substantive due process by impermissibly infringing upon his right to be free from government monitoring of his location. The court also...
The trial court did not err by refusing to admit during the sentencing hearing the defendant’s evidence consisting of a notebook prepared in connection with earlier sentencing proceedings and containing recitations of an accomplice’s confessions, a forensic blood spatter expert report, and...
No error occurred when the trial court denied defense counsel’s request for an overnight recess after having to defend himself against the State’s motion for contempt based on an allegation that counsel violated the court’s order regarding the rape shield rule in connection with his examination...
After a consensual encounter with the defendant, reasonable suspicion supported the officer’s later detention of the driver. During the voluntary encounter the officer noticed the odor of alcohol coming from the defendant and observed an unopened container of beer in his truck. These...
No seizure occurred when an officer initially approached the defendant in response to a tip about an impaired driver. The officer used no physical force, approached the defendant’s vehicle on foot and engaged in conversation with him. The officer did not activate his blue lights and there was no...
(No. COA13-925). Citing, State v. West, 180 N.C. App. 664 (2006) (the same case cited in Perkins above), the court held that the trial court erred by increasing the defendant’s sentence based on convictions for charges that originally had been joined for trial with the charges...
With respect to an indecent liberties charge, the State presented sufficient evidence that the defendant committed the relevant act for the purpose of arousing or gratifying sexual desire. The court noted the defendant’s purpose “may be inferred from the evidence of the defendant’s actions.”...
(No. COA13-661). The court denied the defendant’s motion to strike the State’s brief, which was filed in an untimely manner without any justification or excuse and after several extensions of the time within which it was authorized to do so had been obtained. However, the court “strongly...
Where the defendant’s sentence was within the presumptive range, the trial court did not abuse its discretion by imposing an intermediate sanction of a term of special probation of 135 days in the Division of Adult Correction. The court rejected the defendant’s argument that the sentence was a...
On appeal after a remand for the trial court to conduct a hearing and make appropriate findings of fact and conclusions of law regarding a closure of the courtroom during testimony by a child sexual abuse victim, the court held that the closure of the courtroom was proper and that the defendant’...
(No. COA13-661). The trial court did not err by refusing to instruct the jury about the results of recent research into factors bearing upon the accuracy of eyewitness identification evidence. The eyewitness identification instruction requested by the defendant was eight pages long and strongly...
A defendant may be convicted of child abuse by sexual act under G.S. 14-318.4(a2) when the underlying sexual act is vaginal intercourse.
(No. COA13-925). For the reasons discussed in the case summarized immediately above, the court held that the trial court did not err by refusing to give a jury instruction requested by the defendant.
The trial court erred by denying the defendant’s motion to suppress where the defendant was subjected to a seizure in violation of the Fourth Amendment. Specifically, the officer continued to detain the defendant after completing the original purpose of the stop without having reasonable,...
(No. COA13-925). Although the prosecutor’s statements during closing argument in a robbery case were improper, a new trial was not required. The prosecutor argued that if the defendant “had gotten hold” of a rifle loaded with 14 rounds, “one each for you jurors,” “this might have been an...
Where the trial court’s Allen charge was in substantial compliance with G.S. 15A-1235, no coercion of the verdict occurred. The defendant argued that because the Allen charge failed to instruct the jury in accordance with section G.S. 15A-1235(b)(3) that “a juror should not...
The trial court properly denied the defendant’s pro se motion for post-conviction DNA testing where the defendant failed to adequately establish that newer and more accurate tests would identify the perpetrator or contradict prior test results. It reasoned:
...
Where a drug paraphernalia indictment charged the defendant with possession of plastic baggies used to package and repackage pills but the State introduced no evidence of plastic baggies at trial, the trial court erred by denying the defendant’s motion to dismiss. At trial, the State’s evidence...
On appeal from the trial court’s order granting the defendant’s suppression motion, the court rejected the defendant’s argument that the State failed to meet the certification requirements of G.S. 15A-979(c) by addressing its certificate to “the court” rather than the trial court judge. The...
The court held that the trial court had jurisdiction to enter an order denying the defendant’s request for post-conviction DNA testing, rejecting the defendant’s argument that the order was entered out of session and without his consent. Harmonizing State v. Boone, 310 N.C. 284 (1984...
Where the State failed to produce substantial, independent corroborative evidence to support the facts underlying the defendant’s extrajudicial statement in violation of the corpus delicti rule, the trial court erred by denying the defendant’s motion to dismiss charges of participating in the...
The evidence was sufficient to establish that a juvenile engaged in disorderly conduct by disrupting students (G.S. 14-288.4(a)(6)), where the juvenile’s conduct caused a substantial interference with, disruption of, and confusion of the operation of the school. The juvenile’s conduct “merited...
In an impaired driving case involving a fatality, the trial court properly granted the defendant’s motion to suppress blood test results. The defendant was transported an intoxilyzer room where an officer read and gave the defendant a copy of his implied consent rights. The defendant signed the...
(1) When an indictment charging breaking or entering into a motor vehicle alleged that the defendant broke and entered the vehicle, the trial court did not err by instructing the jury that it could find the defendant guilty if he broke or entered the vehicle. The statute...
The trial court properly allowed the jury to consider whether a signature on a pawn shop buy ticket matched the defendant’s signature of his affidavit of indigency. The court compared the signatures and found that there was enough similarity between them for the documents to have been submitted...
The trial court did not err in calculating the defendant’s prior record level when it counted a New Jersey third-degree theft conviction as a Class I felony. The court rejected the defendant’s argument that because New Jersey does not use the term “felony” to classify its offenses, the trial...
Rejecting the defendant’s argument that that “[t]he detectives’ lies, deceptions, and implantation of fear and hope established a coercive atmosphere”, the court relied on the trial court’s findings of fact and found that the defendant’s statement was voluntary.
In this burglary case, the evidence was sufficient to establish that the defendants intended to commit a felony or larceny in the home. Among other things, an eyewitness testified that the defendants were “casing” the neighborhood at night. Additionally, absent evidence of other intent or...
In a multi-count indecent liberties with a student case, the court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss because there was insufficient evidence that the victim was a “student.” The trial court instructed the jury that a “student,” for...
The trial court erred by requiring the defendant to enroll in lifetime SBM. Two of the trial court’s additional findings supporting its order that the defendant—who tested at moderate-low risk on the Static 99—enroll in lifetime SBM were not supported by the evidence. Also, the additional...
Although the trial court made findings of fact in its order denying the defendant’s suppression motion, it erred by failing to make conclusions of law. The court remanded for appropriate conclusions of law.
(1) In an involuntary manslaughter case where a death occurred during a high speed chase by a bail bondsman in his efforts to arrest a principal, the trial court did not err by instructing the jury that bail bondsmen cannot violate motor vehicle laws in order to make an arrest. While the statute...
The defendant’s statements, made while a police officer who responded to a domestic violence scene questioned the defendant’s girlfriend, were spontaneous and in not response to interrogation. The State conceded that the defendant was in custody at the time. The court rejected the defendant’s...
Although first-degree trespass is a lesser-included offense of felonious breaking or entering, the trial court did not err by failing to instruct the jury on the trespass offense when the evidence did not permit a reasonable inference that would dispute the State’s contention that the defendants...
The defendant could not be convicted and sentenced for both assault inflicting serious bodily injury and assault on a female when the convictions were based on the same conduct. The court concluded that language in the assault on a female statute (“[u]nless the conduct is covered under some...
(1) The evidence was sufficient to establish that the defendant inflicted serious bodily injury on the victim. The beating left the victim with broken bones in her face, a broken hand, a cracked knee, and an eye so beat up and swollen that she could not see properly out of it at the time of...
Although the trial court erred by referencing the Bible or divine judgment in sentencing, given the sentence imposed, the defendant failed to show prejudice or that his sentence was based on the trial court’s religious invocation. Before pronouncing its sentence on the defendant, who was found...
In this murder case, the trial court did not err by failing to make further inquiry when a prospective juror revealed during voir dire that prospective jurors were discussing the case in the jury room. Questioning of the juror revealed that “a few” prospective jurors spoke about whether they...
In the face of the State’s concession that there was no evidence supporting a restitution award, the court vacated the trial court’s restitution order and remanded for a rehearing on the issue.
The State adequately authenticated photographs of text messages sent between accomplices to an attempted robbery. A detective testified that he took pictures of text messages on an accomplice’s cell phone while searching the phone incident to arrest. The detective identified the photographs in...
(1) The trial court did not abuse its discretion by allowing the prosecution to use leading questions when examining a child sexual assault victim. The prosecutor was attempting to ask a 14-year-old victim questions about her father’s sexual conduct toward her. She was very reluctant to testify...
In a multi-count indecent liberties with a student case, the trial court did not err by failing to instruct the jury using the specific acts alleged in the amended bill of particulars. The trial court properly instructed the jury that it could find the defendant guilty if it concluded that he...
In an attempted armed robbery case where the defendant was alleged to have acted with others, the trial court did not abuse its discretion by denying the defendant’s motion to continue, made shortly before trial and after a 24-hour continuance already had been granted to the defense. The...
In this murder case, the trial court did not err by denying the defendant’s request to instruct the jury on self-defense and imperfect self-defense. The defendant never testified that he thought it was necessary or reasonably necessary to kill his wife, the victim, to protect himself from death...
The court rejected the defendant’s argument that the trial court lacked subject matter jurisdiction to hold the SBM hearing in Craven County. The requirement that the SBM hearing be held in the county in which the defendant resides relates to venue and the defendant’s failure to raise the issue...
In the face of the State’s concession that there was no evidence supporting a restitution award, the court vacated the trial court’s restitution order and remanded for a rehearing on the issue. The court noted: “In the interest of judicial economy, we urge prosecutors and trial judges to ensure...
In this burglary case, the evidence was insufficient to establish that the defendants entered the premises where it showed that the defendants used landscaping bricks and a fire pit bowl to break a back window of the home but no evidence showed that any part of their bodies entered the home (no...
Although the trial court erred by failing to follow the statutory procedure for jury selection in G.S. 15A-1214 (specifically, that the prosecutor must pass 12 jurors to the defense), the defendant failed to show prejudice. The court rejected the defendant’s argument that the error was...
(1) In an involuntary manslaughter case where a death occurred during a high speed chase by a bail bondsman in his efforts to arrest a principal, the trial court did not err by instructing the jury that bail bondsmen cannot violate motor vehicle laws in order to make an arrest. While the statute...
An affidavit of indigency sworn to by the defendant before a court clerk was a self-authenticating document under Evidence Rule 902 and thus need not be authenticated under Rule 901.
The trial court did not commit plain error by failing to define larceny in instructions it provided to the jury on burglary. Because evidence was presented permitting the inference that the defendants intended to steal property and there was no evidence suggesting that they intended to merely...
The trial court did not err by joining for trial offenses committed on two different child victims. The State alleged that on 3 September 2010, the defendant committed indecent exposure by showing his privates to a child victim, M.S., and committed indecent liberties with M.S. It also alleged...
In this murder case, the trial court did not commit plain error by failing to submit involuntary manslaughter to the jury. The trial court submitted first-degree murder, second-degree murder, voluntary manslaughter, and not guilty to the jury. The jury found the defendant guilty of second-degree...
(1) The court rejected the defendant’s argument that G.S. 14-208.11 (2011) (failure to notify of a change in address) is void for vagueness as applied to him. He argued that because he is homeless, a person of ordinary intelligence person could not know what “address” means in his case. The...
Although the State had a right to appeal the trial court’s order dismissing charges because of a discovery violation, it had no right to appeal the trial court’s order precluding testimony from two witnesses as a sanction for a discovery violation.
The trial court erred by dismissing charges after finding that the State violated the discovery statutes by failing to obtain and preserve a pawn shop surveillance video of the alleged transaction at issue. On 7 August 2012, defense counsel notified that State that there was reason to believe...
The defendant was denied his constitutional right to counsel when the trial court held a resentencing hearing on the defendant’s pro se MAR while the defendant was unrepresented. The court vacated the judgment and remanded for a new sentencing hearing.
Although the State had a right to appeal the trial court’s order dismissing charges because of a discovery violation, it had no right to appeal the trial court’s order precluding testimony from two witnesses as a sanction for a discovery violation.
In this felony-murder case, although the court was “uncertain of the relevance” of certain photos that the State introduced and questioned the defendant about regarding gang activity, the court found no plain error with respect to their introduction.
The trial court erred by allowing the defendant to proceed pro se at a probation revocation hearing without taking a waiver of counsel as required by G.S. 15A-1242. The defendant’s appointed counsel withdrew at the beginning of the revocation hearing due to a conflict of interest and the trial...
In this felony-murder case, although the court was “uncertain of the relevance” of certain photos that the State introduced and questioned the defendant about regarding gang activity, the court found no plain error with respect to their introduction.
he court declined to extend Miller to this felony-murder case, where the defendant turned 18 one month before the crime in question.
In this murder case where the trial court submitted jury instructions on both second-degree murder and voluntary manslaughter, the court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss the second-degree murder charge. The defendant argued that there...
In a possession of a firearm by a felon case, the State failed to produce sufficient evidence that the defendant had constructive possession of the rifle. The rifle, which was registered to the defendant’s girlfriend was found in a car registered to the defendant but driven by the girlfriend....
The trial court did not abuse its discretion by requiring the defendant to wear restraints at trial. The defendant, who was charged with murder and other crimes, objected to having to wear a knee brace at trial. The brace was not visible to the jury and made no noise. At a hearing on the issue,...
The trial court erred by allowing the defendant to proceed pro se at a probation revocation hearing without taking a waiver of counsel as required by G.S. 15A-1242. The defendant’s appointed counsel withdrew at the beginning of the revocation hearing due to a conflict of interest and the trial...
In this case, arising from the defendant’s conviction for first-degree murder of UNC student Eve Carson, the court upheld the constitutionality of the State’s “Miller fix” statute and determined that the trial court’s findings supported a sentence to life in prison without the...
In this felony-murder case the trial court did not err by denying the defendant’s request to instruct on second-degree murder. The underlying felony was armed robbery and the defendant’s own testimony established all the elements of that offense.
The evidence was sufficient to establish that the defendant embezzled funds from a school. The defendant contended that the State failed to offer substantial evidence that she used the school system’s property for a wrongful purpose. The defendant’s responsibilities included purchasing food and...
The defendant forfeited his right to counsel where he waived the right to appointed counsel, retained and then fired counsel twice, was briefly represented by an assistant public defender, repeatedly refused to state his wishes with respect to representation, instead arguing that he was not...
In a case where the defendant was charged with embezzling from a school, trial court did not err by admitting evidence that the defendant misappropriated funds from a church to show absence of mistake, opportunity, motive, intent, and/or common plan or scheme. The record supported the trial...
Considering the defendant’s ineffective assistance of counsel claim on appeal the court rejected his contention that counsel was ineffective by eliciting hearsay evidence that conflicted with his claim of self-defense, concluding that the evidence did not contradict this defense. It also...
(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of accessory after the fact to murder where the defendant gave eight different written statements to authorities providing a wide array of scenarios surrounding the victim’s death. In his statements the...
The court affirmed a conviction for second-degree sexual offense in a case where the defendant surprised a Target shopper by putting his hand up her skirt and penetrating her vagina. The court rejected the defendant’s argument that because his action surprised the victim, he did not act by force...
The trial court did not err by denying the defendant’s motion to dismiss a charge of possession with intent to sell or deliver. The defendant argued that the amount of marijuana found in his car—84.8 grams—was insufficient to show the required intent. The court rejected this argument noting that...
In a case involving trafficking and possession with intent charges, the evidence was insufficient to establish that the defendant Villalvavo knowingly possessed the controlled substance. The drugs were found in secret compartments of a truck. The defendant was driving the vehicle, which was...
The trial court did not commit plain error by failing to instruct the jury on self-defense with respect to a charge of discharging a firearm into an occupied vehicle. The trial court instructed the jury regarding self-defense in its instructions for attempted first-degree murder and assault. For...
The trial court erred by ordering costs for fingerprint examination as lab fees. G.S. 7A-304(a)(8) does not allow recovery of lab costs for fingerprint analysis.
In a drug trafficking case, the trial court did not err by denying the defendant’s motion to suppress drugs seized from a truck during a vehicle stop. The defendant argued that once the officer handed the driver the warning citation, the purpose of the stop was over and anything that occurred...
The evidence was insufficient to support trafficking by conspiracy convictions against both defendants. The drugs were found in secret compartments of a truck. Defendant Villalvavo was driving the vehicle, which was owned by a passenger, Velazquez-Perez, who hired Villalvavo to drive the truck....
(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of felonious obstruction of justice where the defendant gave eight written contradictory statements to law enforcement officers concerning a murder. In his first statements, the defendant denied being at the...
The court rejected the defendant’s argument that he received ineffective assistance of counsel when his lawyer failed to object to joinder of the defendant's charges of armed robbery and possession of a firearm by a felon. The defendant argued that the felon in possession statute was a “civil...
Following State v. Jeffers, 48 N.C. App. 663, 665-66 (1980), the court held that G.S. 15A-928 (allegation and proof of previous convictions in superior court) does not apply to the crime of felon in possession of a firearm.
The trial court did not violate the defendant’s confrontation rights by barring him from cross-examining two of the State's witnesses, Moore and Jarrell, about criminal charges pending against them in counties in different prosecutorial districts than the district in which defendant was tried....
In this murder case, the trial court did not err by excluding the defendant’s proffered evidence about the victim’s gang membership. The defendant asserted that the evidence was relevant to self-defense. However, none of the proffered evidence pertained to anything that the defendant actually...
The evidence was sufficient to support convictions for murder, burglary, and armed robbery on theories of acting in concert and aiding and abetting. The court noted that neither acting in concert nor aiding and abetting require a defendant to expressly vocalize her assent to the criminal conduct...
The evidence was sufficient to support convictions for murder, burglary, and armed robbery on theories of acting in concert and aiding and abetting. The court noted that neither acting in concert nor aiding and abetting require a defendant to expressly vocalize her assent to the criminal conduct...
The trial court did not err by instructing the jury that “[e]xcept as it relates to the defendant’s truthfulness, you may not consider the defendant’s refusal to answer police questions as evidence of guilt in this case” but that “this Fifth Amendment protection applies only to police...
The court ruled that the trial court erred by granting the defendant’s motion to suppress. A wildlife officer approached the defendant, dressed in full camouflage and carrying a hunting rifle, and asked to see his hunting license. After the defendant showed his license, the officer asked how he...
In this impaired driving case, the trial court did not err by denying the defendant’s requested special jury instruction and instructing instead using Pattern Jury Instruction 270.20A. The special instruction would have informed the jury that the results of the chemical analysis did not create a...
Because attempted first-degree felony murder does not exist under the laws of North Carolina, the court vacated the defendant’s conviction with respect to this charge.
There was sufficient evidence of reckless driving where the defendant was intoxicated; all four tires of her vehicle went off the road; distinctive “yaw” marks on the road indicated that she lost control of the vehicle; the defendant’s vehicle overturned twice; and the vehicle traveled 131 feet...
(1) Under Rule 609, a party is not required to establish a prior conviction before cross-examining a witness about the offense. (2) Although cross-examination under Rule 609 is generally limited to the name of the crime, the time and place of the conviction, and the punishment imposed,...
In this murder case, the trial court did not err by excluding the defendant’s proffered evidence about the victim’s gang membership. The defendant asserted that the evidence was relevant to self-defense. However, none of the proffered evidence pertained to anything that the defendant actually...
(1) In this DWI case the trial court committed a Blakely error by finding an aggravating factor. The trial court found the aggravating factor, determined that it was counterbalanced by a mitigating factor and sentenced the defendant at Level Four. If the aggravating factor had not been...
The trial court erred by failing to arrest judgment on one of the underlying felonies supporting the defendant’s felony-murder convictions. The court rejected the defendant’s argument that judgment must be arrested on all of the felony convictions. The defendant asserted that because the trial...
The trial court did not err by requiring the defendant to enroll in lifetime SBM after finding at the bring-back hearing that he committed an aggravated offense, second-degree rape on a physically helpless victim (G.S. 14-27.3(a)(2)). The court followed State v. Oxendine, 206 N.C. App....
In this murder case where the defendant was charged with killing his wife, statements by the couple’s child to daycare workers made six days after her mother was killed were admissible as excited utterances. The child’s daycare teacher testified that the child asked her for “the mommy doll.”...
In this murder case where the defendant was charged with killing his wife, statements by the couple’s child to daycare workers were relevant to the identity of the assailant. The child’s daycare teacher testified that the child asked her for “the mommy doll.” When the teacher gave the child a...
The defendant’s own statements were admissible under the hearsay rule. The statements were recorded by a police officer while transporting the defendant from Georgia to North Carolina. The court noted that “[a] defendant’s statement that is not purported to be a written confession is admissible...
The trial court erred by dismissing a charge of felon in possession of a firearm on the basis that the statute was unconstitutional as applied to the defendant under a Britt analysis. Here, the defendant had two felony convictions for selling a controlled substance and one for felony...
Following State v. Jeffers, 48 N.C. App. 663, 665-66 (1980), the court held that G.S. 15A-928 (allegation and proof of previous convictions in superior court) does not apply to the crime of felon in possession of a firearm.
The court remanded for findings of fact as to the third element of the plain view analysis. Investigating the defendant’s involvement in the theft of copper coils, an officer walked onto the defendant’s mobile home porch and knocked on the door. From the porch, the officer saw the coils in an...
In this DWI case in which a State Highway Patrol officer arrested the defendant, a non-Indian, on Indian land, the court rejected the defendant’s argument that the State lacked jurisdiction over the crime. The court noted that pursuant to the Tribal Code of the Eastern Band of the Cherokee...
Where the defendant opened the door to the credibility of a defense witness, the prosecutor’s possibly improper comments regarding the witness’s credibility were not so grossly improper as to require intervention by the trial court ex mero motu. Among other things, the prosecutor stated: “that...
In a DWI case, the court rejected the defendant’s argument that the checkpoint at issue was unconstitutional. The court first found that the checkpoint had a legitimate primary programmatic purpose, checking for potential driving violations. Next, it found that the checkpoint was reasonable.
Double jeopardy barred convicting the defendant of speeding and reckless driving when he also was convicted of felony speeding to elude arrest, which was raised from a misdemeanor to a felony based on the aggravating factors of speeding and driving recklessly. The court determined that the...
In this DWI case, the trial court did not err by denying the defendant’s Knoll motion. The defendant argued that the magistrate violated his rights to a timely pretrial release by setting a $500 bond and holding him in jail for approximately three hours and 50 minutes. The court found...
The court remanded to the trial court this case challenging North Carolina’s drug protocol for lethal injections. The plaintiffs appealed a trial court order granting summary judgment to the defendants on the plaintiffs’ challenge to North Carolina’s previously used three-drug protocol for the...
In an armed robbery case, the trial court did not err by admitting three photographs of the defendant and his tattoos, taken at the jail after his arrest. The court rejected the defendant’s argument that the photographs should have been excluded under Rule 403 because they showed him in a jail...
In an armed robbery case, the trial court did not err by admitting three photographs of the defendant and his tattoos, taken at the jail after his arrest. The photographs were relevant to identity where crime scene surveillance camera footage clearly showed the location and general dimensions of...
Sufficient evidence supported the defendant’s armed robbery conviction where two eyewitnesses identified the defendant and an accomplice. The court was unpersuaded by the defendant’s citation of articles and cases from other states discussing the weaknesses of eyewitness identification, noting...
An officer had reasonable suspicion to stop and frisk the defendant when the defendant was in a high crime area and made movements which the officer found suspicious. The defendant was in a public housing area patrolled by a Special Response Unit of U.S. Marshals and the DEA concentrating on...
An officer had reasonable suspicion to stop and frisk the defendant when the defendant was in a high crime area and made movements which the officer found suspicious. The defendant was in a public housing area patrolled by a Special Response Unit of U.S. Marshals and the DEA concentrating on...
In an armed robbery case, the trial court did not err by admitting three photographs of the defendant and his tattoos, taken at the jail after his arrest. The photographs were properly authenticated where the officer who took them testified about the procedure used and that they fairly and...
The trial court erred by sentencing the defendant for both selling marijuana and delivering marijuana when the acts occurred as part of a single transaction.
The trial court erred by entering a period of probation longer than 18 months without making the findings that the extension was necessary.
The court held that it had no authority to consider the defendant’s challenge to the trial court’s imposition of a special condition of probation.
In a rape case, any error made by the trial court regarding the maximum possible sentence did not entitle the defendant to relief. The trial court’s statement was made in connection with noting for the record—on defense counsel’s request—that the defendant had rejected a plea offer by the State...
Because the trial court failed to make adequate findings to permit review of its determination on the defendant’s motion to suppress that the defendant was not placed under arrest when he was detained by an officer for nearly two hours, the court remanded for findings on this issue. The court...
The court rejected the defendant’s argument that the State had no avenue to obtain review of a trial court order granting his G.S. 15A-1415 MAR (MAR made more than 10 days after entry of judgment) on grounds that his sentence violated the Eighth Amendment. The court found that it had authority...
The court rejected the defendant’s 404(b) challenge to evidence elicited by the State that a witness corresponded by mail with the defendant when he was in prison. The fact of “recent incarceration, in and of itself” does not constitute evidence of other crimes, wrongs, or acts within the...
he trial court erred by concluding that a 50-year sentence with the possibility of parole on a defendant who was a juvenile at the time the crimes were committed subjected him to cruel and unusual punishment in violation of the Eighth Amendment. The defendant was convicted of second degree...
he trial court erred by concluding that a 50-year sentence with the possibility of parole on a defendant who was a juvenile at the time the crimes were committed subjected him to cruel and unusual punishment in violation of the Eighth Amendment. The defendant was convicted of second degree...
(1) The court rejected the defendant’s argument that the State had no avenue to obtain review of a trial court order granting his G.S. 15A-1415 MAR (MAR made more than 10 days after entry of judgment) on grounds that his sentence violated the Eighth Amendment. The court found that it had...
By commenting in closing statements that the defendant failed to produce witnesses or evidence to contradict the State’s evidence, the prosecutor did not impermissibly comment on the defendant’s right to remain silent.
(1) Although the State presented no evidence at the bring-back hearing establishing that the defendant received proper notice by certified mail of the hearing or that he received notice of the basis upon which the State believed him eligible for SBM, by failing to object to the trial court’s...
(1) The court rejected the defendant’s argument that the State had no avenue to obtain review of a trial court order granting his G.S. 15A-1415 MAR (MAR made more than 10 days after entry of judgment) on grounds that his sentence violated the Eighth Amendment. The court found that it had...
The trial court did not abuse its discretion by allowing the State to impeach its own witness where the impeachment was not mere subterfuge to introduce otherwise inadmissible evidence. The court held that it need not decide whether the record showed that the State was genuinely surprised by the...
No speedy trial violation occurred when there was a 27-month delay between the indictments and trial. Among other things, the defendant offered no evidence that the State’s neglect or willfulness caused a delay and failed to show actual, substantial prejudice caused by the delay.
The trial court erred by concluding that the defendant’s 1973 sentence of life in prison with the possibility of parole on a conviction of second-degree burglary, committed when he was 17 years old, violated the Eighth Amendment. The defendant brought a MAR challenging his sentence as...
The court held that the trial court erred by concluding that the defendant’s sentence of life in prison with the possibility of parole violated of the Eighth Amendment. In 1973, the 17-year-old defendant was charged with first-degree burglary and other offenses. After he turned 18, he defendant...
No double jeopardy violation occurs when the State retries a defendant on a charging instrument alleging the correct offense date after a first charge was dismissed due to a fatal variance.
No double jeopardy violation occurs when the State retries a defendant on a charging instrument alleging the correct offense date after a first charge was dismissed due to a fatal variance.
The trial court erred by concluding that the defendant’s 1973 sentence of life in prison with the possibility of parole on a conviction of second-degree burglary, committed when he was 17 years old, violated the Eighth Amendment. The defendant brought a MAR challenging his sentence as...
The trial court did not err by granting the defendant’s motion to suppress evidence obtained as a result of a vehicle checkpoint. Specifically, the trial court did not err by concluding that a lack of a written policy in full force and effect at the time of the defendant’s stop at the checkpoint...
A probation violation report provided the defendant with adequate notice that the State intended to revoke his probation on the basis of a new criminal offense. The report alleged that the defendant violated the condition that he commit no criminal offense in that he had several new pending...
A Sampson County superior court judge had jurisdiction to revoke the defendant’s probation where the evidence showed that the defendant resided in that county.
No prejudicial error occurred when the trial court denied the defendant’s motion to suppress statements made by him while being transported in a camera-equipped police vehicle. After being read his Miranda rights, the defendant invoked his right to counsel. He made the statements at...
In a felony assault and robbery case, no plain error occurred when the trial court ruled that the defendant could not question the victim about an unrelated first-degree murder charge pending against him in another county at the time of trial. Normally it is error for a trial court to bar a...
(1) The district court exceeded its statutory authority by ordering a general search of the defendant’s person, vehicle, and residence for unspecified “weapons” as a provision of the ex parte DVPO under G.S. 50B-3(a)(13). Thus, the resulting search of the defendant’s home was unconstitutional....
In a felony assault and robbery case, no plain error occurred when the trial court ruled that the defendant could not question the victim about an unrelated first-degree murder charge pending against him in another county at the time of trial. Normally it is error for a trial court to bar a...
The superior court lacked jurisdiction to try the defendant for possession of lottery tickets in violation of G.S. 14-290. An officer issued the defendant a citation for violating G.S. 14-291 (acting as an agent for or on behalf of a lottery). The district court allowed the charging document to...
In a case involving attempted murder and other charges related to a discharge of a firearm, the court held that the trial court did not err by denying the defendant’s pre-trial motion for DNA testing, pursuant to G.S. 15A-267(c), of shell casings recovered from the crime scene. The defendant’s...
In a case in which the defendant was convicted of possession of heroin and trafficking in opium or heroin by transportation, the trial court did not err by denying the defendant’s request for an instruction about knowing possession or transportation. The court concluded that the requested...
In a sexual exploitation of a minor case, the trial court did not violate the defendant’s constitutional right to a public trial by closing the courtroom during the presentation of the sexual images at issue.
In a sexual exploitation of a minor case, the trial court did not commit plain error by admitting evidence that the defendant set up a webcam in a teenager’s room; videotaped her dancing in her pajamas; and inappropriately touched her while they rode four-wheelers. Although the court had an...
In murder case involving a claim of self-defense, the trial court did not err by excluding the defense expert testimony, characterized by the defendant as pertaining to the victim’s proclivity toward violence. The court noted that where self-defense is at issue, evidence of a victim’s violent or...
In a case in which the defendant was convicted of possession of heroin and trafficking in opium or heroin by transportation, the trial court did not err by denying the defendant’s request for an instruction about knowing possession or transportation. The court concluded that the requested...
(1) Deciding an issue of first impression the court held that the act of downloading an image from the Internet constitutes a duplication for purposes of second-degree sexual exploitation of a minor under G.S. 14-190.17. (2) The court rejected the defendant’s argument that in third-degree sexual...
In a case where the State conceded that the officer had neither probable cause nor reasonable suspicion to seize the defendant, the court decided an issue of first impression and held that the officer’s seizure of the defendant was justified by the “community caretaking” doctrine. The officer...
(1) In a trafficking by possession case, there was sufficient evidence of constructive possession. The court rejected the defendant’s argument that the State’s evidence showed only “mere proximity” to the drugs. Among other things, the defendant hid from the agents when they entered the...
(per curiam). In a first-degree murder case, the court held, over a dissent, that the trial court did not err by declining to instruct the jury on involuntary manslaughter. The evidence showed that the defendant fought with the victim in the yard. Sometime later the defendant returned to the...
The trial court erred by denying the defendant’s motion to dismiss a charge of first-degree kidnapping where the indictment alleged that the confinement, restraint, and removal was for the purpose of committing a felony larceny but the State failed to present evidence of that crime. Although the...
In this child sex case, the court rejected the defendant’s argument that the affidavit was based on false and misleading information, concluding that to the extent the officer-affiant made mistakes in the affidavit, they did not result from false and misleading information and that the affidavit...
In this child sex case, the court held that although the magistrate violated G.S. 15A-245 by considering the officer’s sworn testimony when determining whether probable cause supported the warrant but failing to record that testimony as required by the statute, this was not a basis for granting...
The court rejected the defendant’s argument that the trial court erred by sentencing the defendant as a PRL III offender without complying with G.S. 15A-1022.1 (procedure for admissions in connection with sentencing). At issue was a point assigned under G.S. 15A-1340.14 (b)(7) (offense committed...
The evidence was sufficient to support five counts of indecent liberties with a minor where the child testified that the defendant touched the child’s buttocks with his penis “four or five times.” The court rejected the defendant’s argument that this testimony did not support convictions on five...
Where the defendant had no ownership or possessory interest in the warehouse that was searched, he had no standing to challenge the search on Fourth Amendment grounds.
In this child sex case, the trial court did not err by denying the defendant’s motion to suppress evidence obtained pursuant to a search warrant authorizing a search of his house. The victim told the police about various incidents occurring in several locations (the defendant’s home, a motel,...
In a child sex case, the court held that the evidence was sufficient to support a charge of attempted first-degree statutory sexual offense. On the issue of intent to commit the crime, the court stated: “The act of placing one’s penis on a child’s buttocks provides substantive evidence of intent...
In a child sex case, the trial court did not err by admitting adult pornography found in the defendant’s home to establish motive or intent where the defendant showed the victim both child and adult pornography. Furthermore the trial court did not abuse its discretion by admitting this evidence...
Where the defendant voluntarily ingested a large quantity of sedative, hypnotic or anxiolytic medications and alcohol during the jury deliberation stage of his non-capital trial, he voluntarily waived his constitutional right to be present.
The trial court did not abuse its discretion by failing to find two statutory mitigating factors with respect to a 17-year-old defendant: G.S. 15A-1340.16(e)(4) (defendant’s “age, or immaturity, at the time of the commission of the offense significantly reduced defendant’s culpability for the...
The trial court did not abuse its discretion by denying the defendant’s challenges for cause of two prospective jurors. The defendant asserted that the first juror stated that he would form opinions during trial. Because the juror stated upon further questioning that he would follow the judge’s...
The trial court erred by sentencing the defendant as a PRL III offender when State failed to provide the notice required by G.S. 15A-1340.16(a6) and the defendant did not waive the required notice.
In a child sex case, the trial court did not err by allowing a child witness, A.L., to testify to sexual intercourse with the defendant. The court found the incidents sufficiently similar, noting among other things, that A.L. was assaulted in the same car as K.C. Although A.L. testified that the...
Where the defendant voluntarily ingested a large quantity of sedative, hypnotic or anxiolytic medications and alcohol during jury deliberations of his non-capital trial, the trial court did not err by failing to conduct a sua sponte competency hearing. The court relied on the fact that the...
Distinguishing State v. Hockett, 309 N.C. 794, 800 (1983) (trial court erred by refusing to answer deliberating jury’s question), the court held that the trial court properly answered the jury’s question about the State’s proof regarding the weapon in a robbery charge.
The defendant had no standing to challenge a search of a vehicle when he was a passenger, did not own the vehicle, and asserted no possessory interest in it or its contents.
The trial court did not err by failing to grant the defendant credit for 18 months spent in federal custody prior to trial. After the defendant was charged in state court, the State dismissed the charges to allow for a federal prosecution based on the same conduct. After the defendant’s federal...
In this child sex case, the trial court did not commit plain error by using the word “victim” in the jury instructions. The court distinguished State v. Walston, 229 N.C. App. 141 (2013) (trial court’s use of the term “victim” in jury instructions was prejudicial error), rev’d...
In this child sex case, the trial court did not err by failing to intervene ex mero motu when the prosecutor referred to the complainants as “victims.”
In an assault inflicting serious injury case, the evidence was sufficient to show that the defendant acted in concert with other assailants and thus that he was guilty of the offense even if the injuries he personally inflicted did not constitute “serious injury.”
In a first-degree murder case, there was sufficient evidence of premeditation and deliberation. The court noted that the victim did not provoke the defendant and that the evidence was inconsistent with the defendant’s claim of self-defense.
On remand for resentencing, the trial court did not violate the law of the case doctrine. The resentencing was de novo and the trial court properly considered the State’s evidence of an additional prior felony conviction when calculating prior record level.
By failing to object, the defendant waived his right to appeal the issue of whether the trial court erred by informing prospective jurors, pursuant to G.S. 15A-1213, that the defendant had given notice of self-defense. During jury selection, the trial court stated: “Defendant, ladies and...
In granting the defendant’s motion to suppress in a DWI case, the trial court erred by concluding that a licensed security officer was a state actor when he stopped the defendant’s vehicle. Determining whether a private citizen is a state actor requires consideration of the totality of the...
The trial court erred by imposing jail fees of $2,370 pursuant to G.S. 7A-313. The trial court orally imposed an active sentence of 60 days, with credit for 1 day spent in pre-judgment custody. The written judgment included a $2,370.00 jail fee. Although the trial court had authority under G.S....
The trial court did not err on remand when it conducted a retrospective hearing to determine whether closure of the courtroom during the victim’s testimony was proper under Waller v. Georgia and decided that question in the affirmative. The court rejected the defendant’s argument that...
The trial court did not abuse its discretion by denying an indigent defendant’s request for substitute counsel. The court rejected the defendant’s argument that the trial court erred by failing to inquire into a potential conflict of interest between the defendant and counsel, noting that the...
The trial court erred by convicting the defendant of both first-degree kidnapping and the sexual assault that raised the kidnapping to first-degree. The trial court instructed the jury that to convict defendant of first-degree kidnapping, it had to find that the victim was not released in a safe...
In this multiple murder case where the defendant killed the victims with a shotgun, evidence of firearms and ammunition found in the defendant’s residence, ammunition found in his truck, instructions for claymore mines found on his kitchen table, and unfruitful searches of two residences for...
Distinguishing State v. McHone, 174 N.C. App. 289, 294 (2005), the court held that no plain error occurred when the trial court failed to instruct that the jury must return a “not guilty” verdict if it was unable to conclude that the defendant committed first-degree murder on the basis...
Where the evidence showed that part of a child abduction occurred in North Carolina jurisdiction was established and no jury instruction on jurisdiction was required. The defendant took the child from North Carolina to Florida. The court noted that jurisdiction over interstate criminal cases is...
The evidence supported a jury instruction for first-degree murder by lying in wait. The evidence showed that the defendant parked outside the victim’s house and waited for her. All of the following events occurred 15-20 minutes after the victim exited her home: the defendant confronted the...
In a case where the trial court initially sentenced the defendant correctly but then erroneously thought it had used the wrong sentencing grid and re-sentenced the defendant to a lighter sentence using the wrong grid, the court remanded for imposition of the initial correct but more severe...
In this multiple murder case the trial court properly admitted crime scene and autopsy photographs of the victims’ bodies. Forty-two crime scene photos were admitted to illustrate the testimony of the crime scene investigator who processed the scene. The trial court also admitted crime scene...
In a first-degree burglary case, the evidence was insufficient to establish that the defendant broke and entered an apartment with the intent to commit a felonious restraint inside. Felonious restraint requires that the defendant transport the person by motor vehicle or other conveyance. The...
In this multiple murder case the trial court properly admitted crime scene and autopsy photographs of the victims’ bodies. Forty-two crime scene photos were admitted to illustrate the testimony of the crime scene investigator who processed the scene. The trial court also admitted crime scene...
The evidence was sufficient to show an assault with intent to kill an officer when, after having fatally shot eight people, the defendant ignored the officer’s instructions to drop his shotgun and continued to reload it. The defendant then turned toward the officer, lowered the shotgun, and...
The trial court erred by denying the defendant’s motion to dismiss a second-degree murder charge where there was insufficient evidence of malice and the evidence showed that the death resulted from a mishap with a gun. The court remanded for entry of judgment for involuntary manslaughter.
Where the evidence showed that part of a child abduction occurred in North Carolina jurisdiction was established and no jury instruction on jurisdiction was required. The defendant took the child from North Carolina to Florida. The court noted that jurisdiction over interstate criminal cases is...
The trial court erred by denying the defendant’s motion to dismiss a second-degree murder charge where there was insufficient evidence of malice and the evidence showed that the death resulted from a mishap with a gun. The court remanded for entry of judgment for involuntary manslaughter.