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.
Instructions
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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 this DWI case, the trial court properly denied the defendant’s motion to suppress evidence obtained from blood samples taken at a hospital without a search warrant where probable cause and exigent circumstances supported the warrantless blood draw. Noting the U.S. Supreme Court’s recent...
Evidence of missing items after a breaking or entering can be sufficient to prove the defendant’s intent to commit a larceny therein, raising the offense to a felony. When such evidence is presented, the trial court need not instruct on the lesser offense of misdemeanor breaking or entering.
Over a dissent, the court extended G.S. 14-226(a) (intimidating witnesses) to apply to a person who was merely a prospective witness. The local DSS filed a juvenile petition against the defendant and obtained custody of his daughter. As part of that case, the defendant was referred to the victim...
The court declined to consider the defendant’s argument that the trial court had no jurisdiction to revoke his probation because the sentencing court failed to make findings supporting a probation term of more than 30 months. It reasoned that a defendant cannot re-litigate the legality of a...
The court rejected the defendant’s argument that his due process rights were violated when the trial court failed to sua sponte conduct a second competency hearing. The court held that the record demonstrated the defendant’s competency, that there was no evidence that his competency was...
Although the trial court erred by accepting the defendant’s stipulation that a Tennessee conviction for “theft over $1,000” was substantially similar to a NC Class H felony, the error did not affect the computation of the defendant’s PRL and thus was not prejudicial.
(1) The trial court erred by revoking the defendant’s probation where the State failed to present evidence that the violation report was filed before the termination of the defendant’s probation. As a result, the trial court lacked jurisdiction to revoke. (2) The court declined to consider the...
Although the trial court erred by assigning the defendant one point for a misdemeanor breaking and entering conviction when it also assigned two points for a felony possession of a stolen vehicle conviction that occurred on the same date, the error did not increase the defendant’s PRL and thus...
The trial court did not err by dismissing the defendant’s Batson objection. The prosecutor’s explanation for its peremptory challenge to the black juror was that she was unemployed and that the prosecutor recognized the juror’s name, possibly from a prior domestic violence case. The...
In a child sexual abuse case, the trial court did not err by admitting testimony by the State’s medical experts. The court rejected the defendant’s argument that an expert pediatrician improperly testified that the victim had been sexually abused, concluding that the expert gave no such...
(1) The trial court did not err by failing to inquire, sua sponte, about the defendant’s competency after he was involuntarily committed to a psychiatric unit during trial. After the defendant failed to appear in court mid-trial and defense counsel was unable to explain his absence, the...
The trial court erred by concluding that the police had probable cause to conduct a warrantless search of the defendant, a passenger in a stopped vehicle. After detecting an odor of marijuana on the driver’s side of the vehicle, the officers conducted a warrantless search of the vehicle and...
The trial court did not err by requiring the defendant to report as a sex offender after he was convicted of sexual battery, a reportable conviction. The court rejected the defendant’s argument that because he had appealed his conviction, it was not yet final and thus did not trigger the...
A criminal contempt order was fatally deficient where it failed to indicate that the standard of proof was proof beyond a reasonable doubt.
The defendant was not denied effective assistance of counsel in a case where defense counsel had a meeting with the State’s witnesses in which they offered to drop the charges against the defendant in exchange for compensation. Defense counsel cross-examined the witnesses extensively about their...
Because the State failed to file a certificate as required by G.S. 15A-1432(e), the appellate court lacked jurisdiction over the appeal. In district court the defendant moved to dismiss his DWI charge on speedy trial grounds. When the district court issued an order indicating its preliminary...
The trial court lacked jurisdiction to extend the defendant’s probation after his original probation period expired. Although the probation officer prepared violation reports before the period ended, they were not filed with the clerk before the probation period ended as required by G.S. 15A-...
Following State v. Holden, 346 N.C. 404 (1997), the court held that the trial court erred by refusing to allow the defendant to use a remaining peremptory challenge when a juror revealed mid-trial that she knew one of the State’s witnesses from high school. After re-opening voir dire on...
No double jeopardy violation occurred when the defendant was convicted of trafficking in methamphetamine, manufacturing methamphetamine, and possession of methamphetamine based on the same illegal substance.
Officers did not have reasonable suspicion to stop the defendant based on an anonymous tip from a taxicab driver. The taxicab driver anonymously contacted 911 by cell phone and reported that a red Mustang convertible with a black soft top, license plate XXT-9756, was driving erratically, running...
The trial court erred by denying the defendant’s motion to dismiss a charge of maintaining a vehicle for use, storage, or sale of a controlled substance. The statute provides two ways to show a violation: first, that the defendant knowingly allowed others to resort to his vehicle to use drugs;...
No double jeopardy violation occurred when the defendant was convicted of trafficking in methamphetamine, manufacturing methamphetamine, and possession of methamphetamine based on the same illegal substance.
Following State v. Holden, 346 N.C. 404 (1997), the court held that the trial court erred by refusing to allow the defendant to use a remaining peremptory challenge when a juror revealed mid-trial that she knew one of the State’s witnesses from high school. After re-opening voir dire on...
(1) Reiterating that in a manufacturing case based on preparing or compounding the State must prove intent to distribute, the court found that no plain error had occurred where such a jury instruction was lacking. (2)No double jeopardy violation occurred when the defendant was convicted of...
In a second-degree murder case arising after the defendant drove impaired and hit and killed two bicyclists, there was sufficient evidence of malice. The defendant’s former girlfriend previously warned him of the dangers of drinking and driving; the defendant’s prior incident of drinking and...
In a second-degree murder case arising after the defendant drove while impaired and hit and killed two bicyclists, the trial court did not err by admitting Rule 404(b) evidence. Specifically, Thelma Shumaker, a woman defendant dated, testified regarding an incident where the defendant drove...
In this food stamp fraud case, the trial court did not err by denying the defendant’s motion to dismiss where the evidence showed that the defendant knowingly submitted a fraudulent wage verification form to obtain food benefits to which he was not entitled.
The trial court erred by failing to sua sponte order a hearing to evaluate the defendant’s competency to stand trial. Although no one raised an issue of competency, a trial court has a constitutional duty to sua sponte hold a competency hearing if there is substantial evidence indicating that...
(1) In a proceeding for removal of an elected district attorney (DA) from office, the trial court did not err by denying the DA’s motion to continue where the statute, G.S. 7A-66, mandated that the matter be heard within 30 days. (2) In the absence of a statutory or rule-based provision for...
(1) In a larceny by merchant case, statements made by a deceased Wal-Mart assistant manager to the store’s loss prevention coordinator were non-testimonial. The loss prevention coordinator was allowed to testify that the assistant manager had informed him about the loss of property, triggering...
In a food stamp fraud case, the State is not required to allege in the indictment that the defendant aided and abetted the crime; aiding and abetting is a theory of liability that need not be included in the indictment.
On remand by the NC Supreme Court for reconsideration in light of State v. Carter, 366 N.C. 496 (2013) (no plain error occurred in a child sexual offense case when the trial court failed to instruct on attempted sexual offense even though the evidence of penetration was conflicting),...
The trial court did not err by failing to intervene ex mero motu during that State’s closing argument. Even if the prosecutor misstated the evidence, the trial court’s jury instruction cured any defect. The trial court instructed the jury that if their “recollection of the evidence differs from...
The trial court properly admitted data obtained from an electronic surveillance device worn by the defendant and placing him at the scene. The specific evidence included an exhibit showing an event log compiled from data retrieved from the defendant’s device and a video file plotting the...
There was sufficient evidence that the defendant perpetrated the crime of discharging a weapon into occupied property. Evidence tied a burgundy SUV to the shooting and suggested the defendant was the vehicle’s driver, the defendant fled from police and made statements to them showing “inside”...
The trial court did not err by sentencing the defendant for two crimes—statutory rape and incest—arising out of the same transaction. The two offenses are not the same under the Blockburger test; each has an element not included in the other.
The trial court did not err by sentencing the defendant for two crimes—statutory rape and incest—arising out of the same transaction. The two offenses are not the same under the Blockburger test; each has an element not included in the other.
No violation of double jeopardy occurred when the trial court sentenced the defendant for three counts of discharging a firearm into occupied property. Although the three gunshots were fired in quick succession, the bullet holes were in different locations around the house’s front door area. The...
Where the defendant was convicted of first-degree statutory rape the trial court did not err by ordering the defendant to enroll in lifetime SBM upon release from imprisonment. The offense of conviction involved vaginal penetration and force and thus was an aggravated offense.
The State did not impermissibly present evidence of the defendant’s post-Miranda silence. After being advised of his Miranda rights, the defendant did not remain silent but rather made statements to the police. Thus, no error occurred when an officer indicated that after his...
The defendant’s plea was valid even though the plea agreement contained an unenforceable provision preserving his right to appeal the transfer of his juvenile case to superior court. Distinguishing cases holding that the inclusion of an invalid provision reserving the right to obtain appellate...
The trial court erred by denying the defendant’s motion to dismiss charges of breaking or entering a boat where the State failed to present evidence that the boats contained items of value. Although even trivial items can satisfy this element, here the record was devoid of any evidence of items...
The defendant’s MAR claim was without merit where it alleged ineffective assistance because of counsel’s failure to assert that extraneous information had been presented to the jury. The court found that evidence proffered from a juror was not “extraneous prejudicial information” and thus was...
An out-of-court show-up identification was not impermissibly suggestive. Police told a victim that they “believed they had found the suspect.” The victim was then taken to where the defendant was standing in a front yard with officers. With a light shone on the defendant, the victim identified...
An officer properly gave lay witness testimony. In a case where data from the defendant’s electronic monitoring device was used to place him at the crime scene, the officer-witness testified regarding the operation of the device and tracking data retrieved from the secured server. When...
In a case in which the defendant was charged with conspiracy to commit felony larceny, the trial court did not err by denying the defendant’s motion to submit a jury instruction on conspiracy to commit misdemeanor larceny. The court determined that evidence of the cumulative value of the goods...
The State presented sufficient evidence that the fair market value of the stolen boat batteries was more than $1,000 and thus supported a conviction of felony larceny.
The trial court did not err by accepting a stipulation to a PRL point under G.S. 15A-1340.14(b)(7) without engaging in the mandated colloquy where the context clearly indicated that it was not required.
The trial court did not abuse its discretion by denying the defendant’s challenge for cause. Although the juror initially voiced sentiments that would normally make her vulnerable to a challenge for cause, she later confirmed that she would put aside prior knowledge and impressions, consider the...
The trial court did not err by examining the verdict sheet returned by the jury, rejecting the verdict, and instructing the jury to answer each question. The trial court acted before consulting with counsel but did consult with counsel after the jury was removed from the courtroom. The court...
The court remanded for a determination of whether the trial court had jurisdiction to sentence the defendant more than a year after the date set for the PJC.
In this murder case, the trial court committed reversible error by ruling that the defendant’s expert was not qualified to give expert testimony that incriminating computer files had been planted on the defendant’s computer. Temporary internet files recovered from the defendant’s computer showed...
In this murder case, the trial court did not err by denying the defendant’s request for jury instructions on self-defense and voluntary manslaughter. The defendant’s theory was that the gun went off accidentally. Additionally, there was no evidence that the defendant in fact formed a belief that...
(1) A seizure occurred when the defendant stopped her vehicle after a fire truck following behind her flashed its red lights and activated its siren. The fireman took this action after observing the defendant, among other things, weave out of her lane of traffic and almost hit a passing bus. (2...
In this murder case, the trial court did not err by denying the defendant’s request for jury instructions on self-defense and voluntary manslaughter. The defendant’s theory was that the gun went off accidentally. Additionally, there was no evidence that the defendant in fact formed a belief that...
(1) In this murder case, the trial court abused its discretion by excluding, as a discovery sanction, testimony by defense expert Masucci. The defendant offered Masucci after the trial court precluded the original defense expert, Ward, from testifying that incriminating computer files had been...
(1) A short form indictment under G.S. 15-144.1 was sufficient to charge the defendant with attempted statutory rape of a 13, 14, or 15 year old. The defendant had argued that the statutory short form does not apply to an indictment alleging statutory rape of a 13 year old. (2) The indictment...
In this murder case, the trial court committed reversible error by excluding, under Rule 403, testimony by a defense expert that certain incriminating computer files had been planted on the defendant’s computer. Temporary internet files recovered from the defendant’s computer showed that someone...
In a child sex case, the trial court did not err by admitting 404(b) evidence of the defendant’s prior sexual conduct. The court found the prior acts sufficiently similar and that the requirement of temporal proximity was met.
Deciding an issue of first impression, the court held that the defendant’s act of forcing the victim at gunpoint to penetrate her own vagina with her own fingers constitutes a sexual act supporting a conviction for first-degree sexual offense.
The trial court did not err by determining that the defendant was seized while walking on a sidewalk. Although the officers used no physical force to restrain the defendant, both were in uniform and had weapons. One officer blocked the sidewalk with his vehicle and another used his bicycle to...
In this tax evasion case, the trial court erred by excluding the defendant’s character evidence. The facts indicated that the defendant believed advice from others that by completing certain Sovereign Citizen papers, she would be exempt from having to pay taxes. The defendant’s witness was...
In this drug case where the defendant denied being the perpetrator and suggested that the drugs were sold by one of his sons, the State failed to properly authenticate two photographs used in photographic lineups as being of the defendant’s sons. An informant involved in the drug buy testified...
The trial court did not err by concluding that the seizure was unsupported by reasonable suspicion. The officers observed the defendant walking down the sidewalk with a clear plastic cup in his hands filled with a clear liquid. The defendant entered his vehicle, remained in it for a period of...
The trial court did not err by rejecting the defendant’s G.S. 15A-1414 MAR without an evidentiary hearing.
In this DWI case, the trial court did not err by failing to intervene ex mero motu to the State’s closing arguments. The defendant argued that certain remarks were improper because they speculated that he had driven impaired on other occasions; were sarcastic and provoked a sense of class envy;...
In this DWI case, the trial court did not err by failing to intervene ex mero motu to the State’s closing arguments. The defendant argued that certain remarks were improper because they speculated that he had driven impaired on other occasions; were sarcastic and provoked a sense of class envy;...
(1) The trial court did not err by denying the defendant’s motion to dismiss homicide charges. The defendant argued that the evidence showed perfect self-defense. Noting that there was some evidence favorable to the defendant as to each of the elements of perfect self-defense, the court...
The trial court erred by ordering lifetime sex offender registration and lifetime SBM because first-degree sexual offense is not an “aggravated offense” within the meaning of the sex offender statutes.
In a rape of a child by an adult case, the trial court did not commit plain error by failing to instruct the jury on the lesser offense of first-degree rape where there was no dispute that the defendant was at least 18 years of age.
In a child homicide case, the trial court did not commit plain error by allowing the State’s medical experts to testify that their review of the medical records and other available information indicated that the victim’s injuries were consistent with previously observed cases involving...
(1) Even though the surety’s name was not listed on the first page of form AOC-CR-201 (Appearance Bond for Pretrial Release) the surety was in fact the surety on a $570,000.00 bond, where among other things, the attached power of attorney named the surety and the surety collected the premium on...
(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of rape of a child by an adult under G.S. 14-27.2A(a). The defendant had argued that there was insufficient evidence to establish that the offense occurred on or after December 1, 2008, the statute’s effective...
The trial court erred by ordering lifetime sex offender registration and lifetime SBM because first-degree sexual offense is not an “aggravated offense” within the meaning of the sex offender statutes.
For purposes of applying the effective date of the amendment to Rule 702 (the amended rule applies to actions "arising on or after" 1 October 2011), in a case where a superseding indictment is used, the relevant date is the date the superseding indictment is filed, not the filing date of the...
In a residential robbery case, the trial court did not err by admitting 404(b) evidence of the defendant’s robbery at a Holiday Inn two days after the incident in question. As to similarity, the court noted that both incidents were armed robberies. Also, the perpetrators in both wore black...
In this child homicide case, the trial court did not err by denying the defendant’s motion to dismiss a charge of felony-murder based on an underlying felony child abuse. Prior to the incident in question the victim was a normal, healthy baby. After having been left alone with the defendant, the...
In this misdemeanor DWI case the trial court did not err by denying the defendant’s motions to examine the Intoximeter source code. The court rejected the defendant’s argument that the source code was Brady evidence, reasoning that he failed to show that it was favorable and material....
In this misdemeanor DWI case the court held that the defendant had no statutory right to pretrial discovery and rejected the defendant’s argument that G.S. 15A-901 violated due process. The court noted, however, that the defendant did have discovery rights under Brady.
The court rejected the defendant’s argument that a sentence of life in prison without the possibility of parole for first-degree felony-murder (child abuse as the underlying felony) violated the 8th Amendment.
The trial court erred by granting the defendant habeas relief and dismissing two first-degree capital murder charges. The trial court concluded that the victims were previable fetuses that did not meet the born alive rule for murder. It thus dismissed the murder charges. The court concluded that...
Exigent circumstances—investigation of a possible burglary—supported officers’ warrantless entry into the defendant’s home. The police department received a burglar alarm report concerning a suspected breaking and entering at the defendant’s home. The first arriving officer noticed a broken back...
By pleading guilty to multiple counts of felon in possession, the defendant waived the right to challenge his convictions on double jeopardy grounds.
In this DWI case, the court held that the officer lacked reasonable suspicion to stop the defendant’s vehicle. At 10:05 pm on a Wednesday night an officer noticed that the defendant’s high beams were on. The officer also observed the defendant weave once within his lane of travel. When pressed...
The trial court did not err by refusing to provide defense counsel with an internal investigation report prepared by the police department’s Office of Professional Standards and Inspections regarding a lead detective in the investigation. During the trial prosecutors learned of an ongoing...
(1) The trial court did not coerce a verdict by giving an Allen charge pursuant to G.S. 15A-1235. The jury sent the judge a note at 3:59 pm, after 70 minutes of deliberations, indicating that they were split 11-to-1 and that the one juror “will not change their mind.” The court rejected...
(1) In a statutory rape case, the trial court committed reversible error by expressing an opinion regarding the victim’s age--an element of the offense--when responding to a note from the jury. During deliberations, the jury sent a note asking: “May we please have the date and age of [the victim...
The trial court did not coerce a verdict by instructing the jurors to continue deliberating after they three times indicated a deadlock. Although the trial court did not give an Allen instruction every time, G.S. 15A-1235 does not require the trial court to do so every time the jury...
In a child sexual assault case, even if an officer’s testimony that the police department had a record of defendant’s date of birth “[f]rom prior arrests” could be considered 404(b) evidence, it was admissible to show a fact other than the defendant’s character: the defendant’s age, an element...
Trial court erred by finding a statutory aggravating factor where the evidence used to support the G.S. 15A-1340.16(d)(8) aggravating factor (knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than...
In this involuntary manslaughter case, the trial court did not commit plain error by failing to instruct the jury that foreseeability was an essential element of proximate cause. The court noted that foreseeability is an essential element of proximate cause. It further noted that a trial court...
Trial court did not err by declining to find two statutory mitigating factors: G.S. 15A-1340.16(e)(12) (good character/reputation in the community) and 15A-1340.16(e)(19) (positive employment history). The court rejected the defendant’s argument that the evidence supporting each factor was...
In this drug case, the trial court did not violate the defendant’s constitutional rights to due process and effective assistance of counsel by denying a motion to continue. The defendant argued that defense counsel had been appointed only 54 days before trial and had just become aware of...
Declining to address whether State v. Garris, 191 N.C. App. 276 (2008), applied retroactively, the court held that the defendant’s MAR was subject to denial because the Garris does not constitute a significant change in the substantive or procedural law as required by G.S. 15A-...
The trial court properly denied the defendant’s motion to dismiss a charge of involuntary manslaughter. The primary issue raised in the defendant’s appeal was whether there was sufficient evidence that the defendant committed a culpably negligent act which proximately resulted in the victim’s...
The defendant’s confession was involuntary. The defendant’s first confession was made before Miranda warnings were given. The officer then gave the defendant Miranda warnings and had the defendant repeat his confession. The trial court suppressed the defendant’s pre-Miranda...
In this child sex case, the trial court committed reversible error by allowing the State’s medical expert to testify to the opinion that the victim’s disclosure was consistent with sexual abuse where there was no physical evidence consistent with abuse. In order for an expert medical witness to...
(1) The trial court did not err by failing to include self-defense in its mandate on felony-murder charges that were based on the underlying offenses of attempted robbery. Self-defense is only relevant to felony-murder if it is a defense to the underlying felony. The court continued: “We fail to...
G.S. 15A-1335 did not apply when on retrial the trial court sentenced the defendant for a different, more serious offense.
In a case involving two defendants, no plain error occurred where the trial court’s instructions referred to the defendant and his accomplice collectively as “defendants.” The court noted that when two or more defendants are tried jointly for the same offense, a charge that is susceptible to the...
Trial court did not err by excluding defense evidence of guilt of another where the evidence was “sheer conjecture” and was not inconsistent with the defendant’s guilt.
No plain error occurred when the trial court admitted the child victim’s prior statements to corroborate her trial testimony. Any differences between the statements and the victim’s trial testimony were “minor inconsistencies.”
Rejecting the defendant’s argument that the State failed to present evidence of an attempted taking, the court held that there was sufficient evidence of attempted robbery. The defendant’s accomplice testified that the defendant planned the robbery with her; the defendant waited in a vehicle...
(1) The trial court did not coerce a verdict by giving an Allen charge pursuant to G.S. 15A-1235. The jury sent the judge a note at 3:59 pm, after 70 minutes of deliberations, indicating that they were split 11-to-1 and that the one juror “will not change their mind.” The court rejected...
There was sufficient evidence of a conspiracy to commit armed robbery. The victim was approached from behind by both defendants while walking alone. One defendant held the gun while the other reached for her cellphone. Although not showing an express agreement between defendants, these...
The trial court did not err by failing to appoint counsel for the defendant after his case was remanded from the appellate division and before ordering the defendant to submit to a capacity to proceed evaluation. The court held: “the trial court’s order committing defendant to a competency...
The trial court did not coerce a verdict by instructing the jurors to continue deliberating after they three times indicated a deadlock. Although the trial court did not give an Allen instruction every time, G.S. 15A-1235 does not require the trial court to do so every time the jury...
The evidence was sufficient to show that the defendant committed the offense of contributing to the delinquency/neglect of a minor. The court rejected the defendant’s argument that the State presented no evidence that the defendant was the minor’s parent, guardian, custodian, or caretaker,...
In a robbery case involving a purse snatching, a purse-snatching by the defendant 6 weeks prior was properly admitted under Rule 404(b). The court found that the incidents were sufficiently in that they both occurred in Wal-Mart parking lots and involved a purse-snatching from a female victim...
At the MAR hearing, the trial court properly excluded the State’s expert witness, who did not testify at the original trial. The court viewed the State’s position as “trying to collaterally establish that the jury would have reached the same verdict based on evidence not introduced at trial.” It...
The trial court erred by granting the defendant’s MAR and retroactively applying 2009 amendments to the Structured Sentencing Act (SSA) to the defendant’s 2005 offenses. The court reasoned that the Session Law amending the SSA stated that “[t]his act becomes effective December 1, 2009, and...
(1) An indictment for contributing to the delinquency/neglect of a minor was not defective. The indictment tracked the statutory language but did not specify the specific acts at issue. An indictment for a statutory offense is sufficient if the offense is charged in the words of the statutes, or...
Defendant had no right to appeal from the trial court’s orders modifying the terms of his probation and imposing Confinement in Response to Violation. For a discussion of this case, see my colleague’s blog post here.
In a child sex case decided under pre-amended R. 702, the trial court did not abuse its discretion by admitting expert opinion that the victim suffered from post-traumatic stress disorder when a licensed clinical social worker was tendered as an expert in social work and routinely made mental...
In this murder case, the trial court properly granted the defendant a new trial on the basis of newly discovered evidence. At trial one of the State’s most important expert witnesses was SBI Agent Duane Deaver, who testified as an expert in bloodstain pattern analysis. Deaver testified that the...
Under G.S. 15A-1445, the State could appeal the trial court’s order granting the defendant’s MAR on the basis of newly discovered evidence.
In criminal cases, the amendment to N.C.Evid. R. 702, which is “effective October 1, 2011, and applies to actions commenced on or after that date” applies to cases where the indictment is filed on or after that date. The court noted that it had suggested in a footnote in a prior unpublished...
State could appeal an amended judgment entered after the trial court granted the defendant’s MAR. The trial court entered the amended judgment after concluding (erroneously) that the 2009 amendments to the SSA applied to the defendant’s 2005 offenses.
Where the trial court determined that the defendant had 16 prior record points and was a prior record level V but the judgment indicated that he had 5 prior record points and was a prior record level III, the entries on the judgment were clerical errors.
The trial court lacked jurisdiction to revoke the defendant’s probation and activate his sentence. Although the trial court revoked on grounds that the defendant had committed a subsequent criminal offense, such a violation was not alleged in the violation report. Thus, the defendant did not...
Where the State’s witness testified regarding statements made to the victim by the victim’s brother and the defendant failed to move to strike the testimony, the defendant failed to preserve the issue for appellate review.
Under Miller v. Alabama, 132 S. Ct. 2455 (2012), the trial court violated the defendant’s constitutional right to be free from cruel and unusual punishment by imposing a mandatory sentence of life imprisonment without the possibility of parole upon him despite the fact that he was under...
By failing to object to the omission of diminished capacity and voluntary intoxication from the trial court’s final mandate to the jury instructions on murder, the defendant failed to preserve this issue for appellate review. The trial court had instructed on those defenses per the pattern...
In a murder case, trial counsel did not impermissibly concede the defendant’s guilt under Harbison. Although defense counsel never explicitly conceded the defendant’s guilt during trial, she did make factual concessions, including admitting that the defendant was present at the shooting...
In this first-degree murder case, the evidence was sufficient to show premeditation and deliberation. After some words in a night club parking lot the defendant shot the victim, who was unarmed, had not reached for a weapon, had not engaged the defendant in a fight, and did nothing to provoke...
In a murder case, the trial court was not required to intervene ex mero motu when the prosecutor argued to the jury that depression might make you suicidal but it “doesn’t make you homicidal.” The defendant’s witness had testified that depression can make a person suicidal. In context, the...
Applying the Justice Reinvestment Act (JRA), the court held that the trial court improperly revoked the defendant’s probation. The defendant violated the condition of probation under G.S. 15A-1343(b)(2) that she not leave the jurisdiction without permission and monetary conditions under G.S. 15A...
The trial court erred by sentencing the defendant for both larceny from the person and larceny of goods worth more than $1,000 based on a single larceny. Larceny from the person and larceny of goods worth more than $1,000 are not separate offenses, but alternative ways to establish that a...
A larceny was from the person when the defendant stole the victim’s purse, which was in the child’s seat of her grocery store shopping cart. At the time, the victim was looking at a store product and was within hand’s reach of her cart; additionally she realized that the larceny was occurring as...
The court dismissed the defendant’s claim that counsel’s trial strategy constituted ineffectiveness under Strickland. This claim was dismissed without prejudice to the defendant’s right to assert the claim in a Motion for Appropriate Relief.
The trial court erred by dismissing an indictment charging the defendant with violating an ex parte domestic violence protective order (DVPO) that required him to surrender his firearms. The trial court entered an ex parte Chapter 50B DVPO prohibiting the defendant from contacting his wife and...
The evidence was sufficient to establish assault by strangulation. The victim testified that the defendant strangled her twice; the State’s medical expert testified that the victim’s injuries were consistent with strangulation; and photographic evidence showed bruising, abrasions, and a bite...
In a murder case, the trial court did not err by excluding testimony of Susan Strain, a licensed social worker. Strain worked with the defendant’s step-father for several years and testified that she occasionally saw the defendant in the lobby of the facility where she worked. The State objected...
In a counterfeit controlled substance case where the defendant was alleged to have sold tramadol hydrochloride, representing it to be Vicodin, evidence that he also possessed Epsom salt in a baggie was properly admitted under Rule 404(b). The salt bore a sufficient similarity to crack cocaine in...
The trial court lacked jurisdiction to sentence the defendant for larceny of goods worth more than $1,000 when the indictment charged that the defendant stole “property having a value of $1,000.”
In a counterfeit controlled substance case, the trial court committed plain error by admitting evidence identifying a substance as tramadol hydrochloride based solely upon an expert’s visual inspection. The State’s witness Brian King, a forensic chemist with the State Crime Lab, testified that...
The trial court did not commit plain error by failing to redact portions of a transcript of the defendant’s interrogation where the challenged statements were relevant. The court rejected the defendant’s argument that the trial court should have redacted statements made by the detective, finding...
An officer lacked reasonable suspicion to stop the defendant’s vehicle. A “be on the lookout” call was issued after a citizen caller reported that there was a cup of beer in a gold Toyota sedan with license number VST-8773 parked at the Kangaroo gas station at the corner of Wake Forest Road and...
An officer lacked reasonable suspicion to stop the defendant’s vehicle. A “be on the lookout” call was issued after a citizen caller reported that there was a cup of beer in a gold Toyota sedan with license number VST-8773 parked at the Kangaroo gas station at the corner of Wake Forest Road and...
The trial court did not err by denying the defendant’s motion to suppress evidence discovered as a result of a protective sweep of his residence where the officers had a reasonable belief based on specific and articulable facts that the residence harbored an individual who posed a danger to the...
An investigative stop of the defendant’s vehicle was lawful. Officers stopped the defendant’s vehicle because it was registered in her name, her license was suspended, and they were unable to determine the identity of the driver.
G.S. 14-415.1(a), proscribing the offense of felon in possession of a firearm, does not apply to the plaintiff, who had received a Pardon of Forgiveness from the NC Governor for his prior NC felony. The court relied on G.S. 14-415.1(d), which provides in part that the section does not apply to a...
The trial court did not err by denying defense counsel’s motions to withdraw and for the appointment of substitute counsel. The court rejected the defendant’s argument that he and his trial counsel experienced “a complete breakdown in their communications” resulting in ineffective assistance of...
There was sufficient evidence that a theft and use of force were part of a continuous transaction. A witness testified that the defendant went to the victim’s mobile home with the intent to rob him, shot and killed the victim, and left with money and drugs.
The evidence was sufficient to show that the defendant committed second-degree murder either alone or in concert with others. The defendant was present with two men who borrowed a red Ford from David Andrews. The three men did not return the car to Andrews and the defendant was later seen...
(1) North Carolina had territorial jurisdiction to prosecute the defendant for embezzlement. The defendant was a long distance driver employed by a North Carolina moving company. The defendant was charged with having received funds from a customer out-of-state and having converted them to his...
The court determined that it need not address the substance of the defendants’ challenge to the trial court’s order denying their suppression motions where the argument asserted was not advanced at the suppression hearing in the trial court.
In a first-degree murder case there was sufficient evidence of premeditation and deliberation. There was evidence that the victim begged for his life, that the victim’s body had eight gunshot wounds, primarily in the head and chest, and there was a lack of provocation.
The trial court did not abuse its discretion by denying defense counsel’s motion to withdraw or in the alternative for a continuance. In the four months prior to trial, the defendant failed to provide counsel with the names of potential defense witnesses. However, no justification was provided...
Although the trial court erred when instructing the jury on first-degree burglary, no plain error occurred. The first-degree burglary indictment alleged that the defendant entered the dwelling with intent to commit larceny. The trial court instructed the jury that it could find the defendant...
The trial court did not err by allowing the State to amend an embezzlement indictment. The indictment originally alleged that “the defendant . . . was the employee of MBM Moving Systems, LLC . . . .” The amendment added the words “or agent” after the word “employee.” The court rejected the...
In this drug trafficking case, notice was properly given under the G.S. 90-95(g) notice and demand statute even though it did not contain proof of service or a file stamp. The argued-for service and filing requirements were not required by Melendez-Diaz or the statute. The notice was...
Although the trial court misstated the maximum sentence during the waiver colloquy, it adequately complied with G.S. 15A-1242. The trial court twice informed the defendant that if he was convicted of all offenses and to be a habitual felon, he could be sentenced to 740 months imprisonment, or...
The trial court did not err by denying defense counsel’s motions to withdraw and for the appointment of substitute counsel. The court rejected the defendant’s argument that he and his trial counsel experienced “a complete breakdown in their communications” resulting in ineffective assistance of...
Relying on language in G.S. 15A-979, the court held that a defendant may appeal an order denying a motion to suppress made pursuant to G.S. 15A-980 (right to suppress use of certain prior convictions obtained in violation of right to counsel) where the defendant reserved the right to appeal in...
Where no evidence negated the State’s proof of first-degree murder, the trial court did not err by denying the defendant’s request for an instruction on second-degree murder.
(1) Reversing the trial court, the court held that the Town of Chapel Hill’s Towing Ordinance is a valid exercise of police power under G.S. 160A-174(a). (2) The trial court improperly enjoined enforcement of the Town’s Mobile Phone Ordinance. The ordinance prohibits the use of mobile phones...
In an impaired driving case, evidence that the defendant’s BAC was .09 was sufficient to survive a motion to dismiss, notwithstanding evidence that the machine may have had a margin of error of .02. The court concluded: “Defendant’s argument goes to the credibility of the State’s evidence, not...
The evidence was sufficient to show a conspiracy to commit a robbery with a dangerous weapon. The defendant argued that there was no express agreement to use a dangerous weapon. The court held, in part, that there was an implied understanding to use such a weapon.
In a communicating threats case, the State presented sufficient evidence that a detention officer believed that the defendant—an inmate—would carry out his threats against her.
In a heroin trafficking case where the defendant argued that he did not know that the item he possessed was heroin, the trial court committed plain error by denying the defendant’s request for a jury instruction that the State must prove that the defendant knew that he possessed heroin (footnote...
In a case where an inmate was charged with carrying a concealed weapon, there was sufficient evidence that the weapon was “concealed about his person.” Officers found one razor blade stuck to the underside of a table top in the day room adjoining the defendant’s cell, where the defendant had...
Where the evidence showed that the defendant committed the completed crime of felony larceny, the evidence was sufficient to support a conviction of the lesser charged offense of attempted felony larceny.
The court rejected the defendant’s argument that by using the phrase “the victim” while instructing the jury the trial court expressed an opinion regarding a fact in violation of G.S. 15A-1232; the court found that the defendant failed to show prejudice.
(1) Notwithstanding the defendant’s testimony that the gun used in a robbery was unloaded, the trial court properly denied the defendant’s motion to dismiss an armed robbery charge. The victim testified that the defendant entered her business, pointed a gun at her and demanded money. The...
In this murder case the trial court did not abuse its discretion by denying the defendant’s motion to continue. The defendant sought the continuance so that he could procure an expert to evaluate and testify regarding the State’s DNA evidence. The court rejected the defendant’s argument that by...
The trial court erred by granting the defendant’s motion to suppress breath test results from an Intoximeter EC/IR II. The trooper administered the first breath test, which returned a result of .10. When the trooper asked for a second sample, the defendant did not blow hard enough and the...
The court adopted the following standard of review of a denial for post-conviction DNA testing: Findings of fact are binding if supported by competent evidence and may not be disturbed absent an abuse of discretion; conclusions of law are reviewed de novo.
The trial court did not err by failing to make specific findings of fact when denying the defendant’s request for post-conviction DNA testing under G.S. 15A-269. The statute contains no requirement that the trial court make specific findings of fact.
The trial court did not err by denying the defendant’s request for a special instruction concerning the effect of drug use on a witness’s credibility where the trial court gave the general witness credibility instruction.
Based on the elements of the two offenses, the trial court erred by concluding that a prior Ohio conviction was substantially similar to the North Carolina crime of assault with a deadly weapon with intent to kill.
(1) On the State’s appeal from the trial court order terminating the defendant’s sex offender registration, the court noted that when a defendant seeks to be removed from the registry because he was erroneously required to register, the more appropriate avenue for relief is a declaratory...
The defendant had adequate notice and opportunity to be heard before the trial court imposed court costs.
The trial court did not err by failing to appoint counsel to represent the defendant on a motion for post-conviction DNA testing. The trial court is required to appoint counsel for a motion under G.S. 15A-269 only if the defendant makes a showing of indigence and that the DNA testing is material...
The Rules of Evidence do not apply to DMV license revocation hearings pursuant to G.S. 20-16.2.
(1) When a trial judge conducts an initial review of an application for the issuance of a writ of habeas corpus, the issues are whether the application is in proper form and whether the applicant has established a valid basis for believing that he or she is being unlawfully detained and entitled...
In a heroin trafficking case where the defendant argued that he did not know that the item he possessed was heroin, the trial court committed plain error by denying the defendant’s request for a jury instruction that the State must prove that the defendant knew that he possessed heroin (footnote...
The defendant was properly convicted of two counts of malicious conduct by a prisoner when he twice spit on an officer while officers were attempting to secure him. The defendant had argued that only conviction was proper because his conduct occurred in a continuous transaction. The court found...
The trial court did not err when during a retrial in a DWI case it instructed the jury that it could consider the defendant’s refusal to take a breath test as evidence of her guilt even though during the first trial a different trial judge had ruled that the instruction was not supported by the...
The trial court lacked jurisdiction to revoke the defendant’s probation on the basis of a violation that was not alleged in the violation report and of which she was not given notice. The violation reports alleged that the defendant violated two conditions of her probation: to “[n]ot use,...
(1) The evidence was sufficient to support a charge of conspiracy to traffic in cocaine by possession. A detective arranged for a cocaine sale. The defendant and an individual named Blanco arrived at the preset location and both came over to the detective to look at the money. The defendant and...
Because evidence of vaginal penetration was clear and positive, the trial court did not err by failing to instruct the jury on attempted rape.
The court rejected the defendant’s argument that his revocation was improper because the attorney who represented him at the revocation hearing was not his appointed attorney and trial court made no findings about a substitute attorney. Any error that occurred was not prejudicial.
(1) The trial court did not err by denying the defendant’s motion to suppress statements to officers on grounds that they were obtained in violation of G.S. 15A-501(2) (arrested person must be taken before a judicial official without unnecessary delay). After a consensual search of his residence...
The trial court did not err when during a retrial in a DWI case it instructed the jury that it could consider the defendant’s refusal to take a breath test as evidence of her guilt even though during the first trial a different trial judge had ruled that the instruction was not supported by the...
In a drug trafficking case, a search warrant was supported by probable cause. The affiant was an officer with more than 22 years of experience and who had been involved in numerous drug investigations. The affidavit included background on the circumstances of the detective’s dealings with the...
(1) The trial court gave the State proper notice when it made a sua sponte oral MAR in open court one day after judgment had been entered. (2) The trial court did not violate the MAR provision stating that any party is entitled to a hearing on a MAR where the State did not request a hearing but...
In a drug trafficking case where the record failed to indicate that law enforcement officers utilized acts of persuasion, trickery or fraud to induce the defendant to commit a crime, or that the criminal design originated in the minds of law enforcement rather than with the defendant, the trial...
In a case involving charges of obtaining property by false pretenses arising out of sales to a pawn shop in which another person told the shop that the items were not stolen, the evidence was insufficient to show that the defendant was acting in concert. Assuming that the State sufficiently...
The evidence was sufficient to support a charge of trafficking in cocaine by possession. A detective set up a cocaine sale. The defendant and an individual named Blanco arrived at the location and both came over to the detective to look at the money. The defendant and Blanco left together, with...
Because evidence of vaginal penetration was clear and positive, the trial court did not err by failing to instruct the jury on attempted rape.
(1) The trial court did not put the burden on the State to disprove extraordinary mitigating factors. After the defendant presented evidence of mitigating factors, the trial court asked the State to respond to the defendant’s evidence by explaining why it believed these factors were not...
Although an officer had reasonable suspicion to stop a juvenile, the officer’s subsequent conduct of ordering the juvenile to empty her pockets constituted a search and this search was illegal; it was not incident to an arrest nor consensual. The district court thus erred by denying the juvenile...
(1) In a second-degree rape and sexual offense case, the evidence sufficiently established use of force. The victim repeatedly declined the defendant’s advances and told him to stop and that she didn’t want to engage in sexual acts. The defendant pushed her to the ground. When he was on top of...
In a DWI case, an officer’s testimony supported an instruction that the jury could consider the defendant’s refusal to take a breath test as evidence of her guilt.
In an obtaining property by false pretenses case based on the defendant having falsely represented to a pawn shop that items sold to the shop were not stolen, there was sufficient evidence that the items were stolen. As to the first count, the serial number of the item sold as shown on the shop’...
Although the trial court erred by admitting in a motion for appropriate relief (MAR) hearing a juror’s testimony about the impact on his deliberations of his conversation with the defendant’s mother during trial, the trial court’s findings supported its determination that there was no reasonable...
Counsel was ineffective by failing move to suppress evidence obtained by a “patently unconstitutional seizure.” The State conceded that the evidence was obtained illegally but argued that counsel’s failure to move to suppress could have been the result of trial strategy. The court rejected this...
The trial court committed plain error by instructing the jury that the defendant was not entitled to the benefit of self-defense if she was the aggressor when no evidence suggested that the defendant was the aggressor.
In a second-degree rape and sexual offense case, the evidence sufficiently established use of force. The victim repeatedly declined the defendant’s advances and told him to stop and that she didn’t want to engage in sexual acts. The defendant pushed her to the ground. When he was on top of her...
(1) An officer had reasonable suspicion that a juvenile was violating G.S. 14-313(c) (unlawful for person under 18 to accept receipt of cigarettes) and thus the officer’s initial stop of the juvenile was proper.
Although the trial court erred by admitting in a motion for appropriate relief (MAR) hearing a juror’s testimony about the impact on his deliberations of his conversation with the defendant’s mother during trial, the trial court’s findings supported its determination that there was no reasonable...
The court rejected the defendant’s argument that the trial court violated his rights under the ex post facto clause when it assigned points to his prior record level based upon a conviction that was entered after the date of the offenses for which he was sentenced in the present case. The court...
Where the defendant stipulated to the worksheet’s classification of a South Carolina conviction as a Class I felony, the trial court correctly assigned two points for that conviction. The court reasoned that the defendant knew of the worksheet’s contents and had ample opportunity to object to...
(1) On direct appeal, the court rejected the juvenile’s assertion that counsel’s failure to make a closing argument in a delinquency proceeding was per se ineffective assistance. (2) In a delinquency case in which the juvenile was alleged to have assaulted another child, the court rejected the...
(1) The trial court did not err by denying the defendant’s motion to suppress statements to officers on grounds that they were obtained in violation of G.S. 15A-501(2) (arrested person must be taken before a judicial official without unnecessary delay). After a consensual search of his residence...
The court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss where the defendant’s argument went to issues of credibility.
The trial court erred by admitting expert testimony regarding DNA evidence that amounted to a "prosecutor's fallacy." That fallacy, the court explained, involves the use of DNA evidence to show "random match probability." Random match probability evidence, it continued, is the probability that...
There was insufficient evidence to support a delinquency adjudication for sexual battery. Although there was sufficient evidence of sexual contact, there was insufficient evidence of a sexual purpose. When dealing with children, sexual purpose cannot be inferred from the act itself and that...
The court rejected the State’s argument that the defendant initiated contact with the police following his initial request for counsel and thus waived his right to counsel. After the defendant asserted his right to counsel, the police returned him to the interrogation room and again asked if he...
There was a sufficient factual basis for the defendant’s pleas to possession of a stolen firearm and possession with intent to sell or deliver a controlled substance. There was evidence that the gun was stolen and that the defendant knew or had reasonable grounds to know that. There was also...
In an involuntary manslaughter case where the victim, who was under 21, died from alcohol poisoning and the defendant was alleged to have aided and abetted the victim in the possession or consumption of alcohol, the trial court did not err by admitting 404(b) evidence that the defendant provided...
The trial court did not err by denying the defendant’s motion to dismiss a charge of involuntary manslaughter where a person under 21 years of age died as a result of alcohol poisoning and it was alleged that the defendant aided and abetted the victim in the possession or consumption of alcohol...
The court rejected the State’s argument that the defendant initiated contact with the police following his initial request for counsel and thus waived his right to counsel. After the defendant asserted his right to counsel, the police returned him to the interrogation room and again asked if he...
In a child sex case, the trial court did not err by allowing the State’s properly qualified medical expert to testify that the victim’s profile was consistent with that of a sexually abused child. The court rejected the defendant’s argument that the State failed to lay a proper foundation for...
The trial court’s findings of fact support its rejection of the defendant’s argument that the show of force by law enforcement during a traffic stop amounted to an arrest.
The court rejected the defendant’s argument that the trial court erred by denying his petition for removal from the sex offender registry because the incorporation of the Adam Walsh Act and SORNA into G.S. 14-208.12A(a1)(2) was an unconstitutional delegation of legislative authority. The court...
The trial court did not commit plain error by failing to instruct on defense of others. The defendant’s statement that he was defending himself, his vehicle and his wife was not evidence from which the jury could find that the defendant reasonably believed a third person was in immediate peril...
There was sufficient evidence that the defendant was a recidivist for purposes of lifetime SBM. The prior record worksheet and defense counsel’s stipulation to the prior convictions support a finding that the defendant had been convicted of indecent liberties in 2005, even though it appears that...
The trial court did not err by failing to grant the defendant a new trial on his MAR where the State failed to disclose in discovery more than 1,800 pages of material to which the defendant was entitled. The court was unable to conclude that but for the nondisclosure a different result would...
The trial court committed plain error by instructing the jury on the crime of stalking under the new stalking statute, G.S. 14-277.3A, when the charged course of conduct occurred both before and after enactment of the new statute. The new version of the stalking statute lessened the burden on...
There was sufficient evidence of embezzlement where the defendant, a bookkeeper controller for the victim company, was instructed to close the company’s credit cards but failed to do so, instead incurring personal charges on the cards and paying the card bills from company funds. The court...
The trial court improperly denied the defendant’s motion to suppress. An officer saw the defendant walking in the middle of the street. The officer stopped the defendant to warn him about impeding the flow of street traffic. After issuing this warning, the officer frisked the defendant because...
(1) In a case in which the victim died after consuming drugs provided by the defendant and the defendant was convicted of involuntary manslaughter, the trial court did not err by instructing the jury on second-degree murder and the lesser offense of involuntary manslaughter. The defendant...
In a murder case, the trial court did not violate the defendant’s constitutional right to reasonable notice of evidence or his statutory right to discovery by allowing the State to present an expert toxicologist’s testimony. As part of his investigation, Dr. Jordan, a local medical examiner,...
A defendant may not challenge the validity of an indictment in an appeal challenging revocation of probation. In such circumstances, challenging the validity of the original judgment is an impermissible collateral attack.
No plain error occurred when the trial court referred to the prosecuting witness as “the victim.” The court rejected the defendant’s argument that a different result should obtain because he asserted self-defense.
In a case in which the victim died after consuming drugs provided by the defendant and the defendant was convicted of involuntary manslaughter, the trial court did not err by instructing the jury on second-degree murder and the lesser offense of involuntary manslaughter. The defendant objected...
There was sufficient evidence that the defendant had constructive possession of heroin found in an apartment that was not owned or rented by him. Evidence that the defendant was using the apartment included that he had a key to the apartment on his key ring, his clothing was found in the bedroom...
(1) The trial court did not err by activating the defendant’s sentence on the basis that the defendant absconded by willfully avoiding supervision. The defendant’s probation required that he remain in the jurisdiction and report as directed to the probation officer. The violation report alleged...
The trial court erred by requiring the defendant to enroll in SBM. After finding that the defendant did not fall into any of the categories requiring SBM under G.S. 14-208.40, the trial court nonetheless ordered SBM enrollment for 30 years, on grounds that his probation was revoked and he failed...
A defendant may not challenge the validity of an indictment in an appeal challenging revocation of probation. In such circumstances, challenging the validity of the original judgment is an impermissible collateral attack.
The trial court did not err by allowing heroin recovered from the defendant's person outside the apartment to be combined with the heroin recovered from the apartment for the purposes of arriving at a trafficking amount for trafficking by possession. The defendant was observed entering the...
In a drug case, the trial court did not err by allowing one analyst to testify to the results of an analysis done by another non-testifying analyst. The analysis at issue identified the pills as oxycodone. The defendant did not object to the analyst’s testimony at trial or to admission of the...
The trial court committed plain error by allowing the State to cross-examine the defendant about his failure to make a post-arrest statement to officers and to comment in closing argument on the defendant’s decision to refrain from giving such a statement. The following factors, none of which is...
The court rejected the defendant’s argument that the State’s failure to comply with the requirements of the G.S. 90-95 notice and demand statute with respect to the analyst’s report created error. In addition to failing to object to admission of the report, both the defendant and defense counsel...
The trial court properly required the defendant to enroll in lifetime SBM. When deciding whether a conviction counts as a reportable conviction as an “offense against a minor”, the trial court is not restricted to considering the elements of the offense; the trial court may make a determination...
In a murder case, the defendant’s right of confrontation was not violated when Dr. Jordan, an expert medical examiner, testified that in his opinion the cause of death was methadone toxicity. As part of his investigation, Jordan sent a specimen of the victim’s blood to the Office of the Chief...
(1) The trial court committed plain error by instructing the jury on the crime of stalking under the new stalking statute, G.S. 14-277.3A, when the charged course of conduct occurred both before and after enactment of the new statute. The new version of the stalking statute lessened the burden...
The trial court’s order requiring the defendant to enroll in SBM, although signed and dated by the trial court, was never filed with the clerk of court and therefore was a nullity.
In a case in which the victim died after consuming drugs provided by the defendant and the defendant was convicted of involuntary manslaughter, the trial court did not err by instructing the jury on second-degree murder and the lesser offense of involuntary manslaughter. The defendant objected...
The trial court did not commit plain error by failing to instruct on perfect or imperfect self-defense or perfect or imperfect defense of others where no evidence supported those instructions.
In a case in which the victim died after consuming drugs provided by the defendant and the defendant was convicted of involuntary manslaughter, the trial court did not err by instructing the jury on second-degree murder and the lesser offense of involuntary manslaughter. The defendant objected...
In a case in which the defendant was charged with obtaining property by false pretenses for selling products alleged to be gluten free but which in fact contained gluten, the trial court did not err by allowing an ill witness to testify by way of a two-way, live, closed-circuit web broadcast....
In a homicide case, the trial court did not err by instructing on flight. The State’s evidence showed that officers were unable to locate the defendant for several months following the shooting. The defendant resided at his aunt’s house before the 2:30 am shooting and instead of returning there...
The evidence was sufficient to show that either the defendant or his accomplice used a firearm to induce the victim to part with her purse.
No violation of the defendant’s confrontation rights occurred when an officer testified to statements made to him by others where the statements were not introduced for their truth but rather to show the course of the investigation, specifically why officers searched a location for evidence.
No violation of the defendant’s confrontation rights occurred when the trial court admitted an unavailable witness’s testimony at a proceeding in connection with the defendant’s Alford plea under the Rule 804(b)(1) hearsay exception for former testimony. The witness was unavailable and...
(1) Indictments charging the defendant with obtaining property by false pretenses were not defective. The indictments alleged in part that “[t]he defendant sold bread products to the victim that were advertised and represented as Gluten Free when in fact the defendant knew at the time that the...
In a murder case, the trial court did not err by admitting a knife found four years after the crime at issue. The defendant objected on relevancy grounds. The defendant’s wife testified that he told her that he murdered the victim with a knife that matched the description of the one that was...
Because the defendant was sentenced in the presumptive range, the trial court did not err in failing to make findings regarding a mitigating factor.
In a kidnapping and armed robbery case the evidence was sufficient that the defendant acted in concert with an accomplice. Although the defendant argued that the evidence established that he was merely present at the scene, the evidence showed that he aided his co-conspirator.
In this civil case the court held that an officer’s accident report, prepared near the time of the accident, using information from individuals who had personal knowledge of the accident was admissible under the Rule 803(6) hearsay exception.
The court rejected the defendant’s argument that the trial court erred by failing to give additional jury instructions in open court and make them a part of the record as required by G.S. 15A-1234. Where, as here, the trial judge simply repeats or clarifies instructions previously given and does...
The trial court erred by instructing the jury on the offense of discharging a firearm into a vehicle that is in operation under G.S. 14-34.1(b) where the indictment failed to allege that the vehicle was in operation. However, because the indictment properly charged discharging a firearm into an...
The trial court did not err by finding the defendant’s statements to his wife voluntary. The defendant’s wife spoke with him five times while he was in prison and while wearing a recording device provided by the police. The wife did not threaten defendant but did make up evidence which she...
In an attempted murder and assault case, the trial court committed plain error by allowing an officer to testify about gangs and gang-related activity where the evidence was not relevant to guilt or to the aggravating factor that the crimes were gang-related. The State’s theory was that the...
The trial court properly admitted an unavailable witness’s testimony at a proceeding in connection with the defendant’s Alford plea under the Rule 804(b)(1) hearsay exception for former testimony. The court rejected the defendant’s argument that the testimony was inadmissible because he...
The evidence was sufficient to establish that the defendant obtained property by false pretenses where she sold products alleged to be gluten free but in fact contained gluten. The defendant argued that the evidence was insufficient as to one victim because he returned the check she gave him in...
In a case in which the defendant was convicted of rape of a child under G.S. 14-27.2A, there was substantial testimony to establish that the defendant engaged in vaginal intercourse with the victim. The victim testified that the defendant put his “manhood inside her middle hole.” Although the...
The trial court committed prejudicial error by failing to exercise discretion in responding to the deliberating jury’s request to review evidence. The trial court indicated that the requested information was “not in a form which can be presented to [the jury.]” The court found that this...
When determining prior record level, the trial court erroneously concluded that a Georgia conviction for theft was substantially similar to misdemeanor larceny without hearing any argument from the State. Additionally, the Georgia offense is not substantially similar to misdemeanor larceny; the...
The court reversed and remanded for a new trial where the trial court failed to exercise its discretion regarding the jury’s request to review the victim’s testimony and the error was prejudicial. Responding to the jury’s request, the trial court stated, in part, “We can’t do that.” This...
The trial court erred by failing to issue a written order denying the defendant’s motion to suppress. A written order is necessary unless the court announces its rationale from the bench and there are no material conflicts in the evidence. Here, although the trial court announced its ruling from...
A hotel owner had personal knowledge and could testify to the responsibilities of the defendant, the hotel’s general manger, with respect to removing deposits from the hotel safe and other related matters.
The trial court did not err by admitting a murder victim’s hearsay statement to her sister-in-law under the Rule 803(3) then existing mental, emotional or physical condition hearsay exception. The murder victim told her sister-in-law that the defendant was harassing her and had threatened her....
The trial court did not err by failing to conduct a Batson hearing where the defendant failed to establish a prima facie case of discrimination. At the time the defendant objected, the State's acceptance rate, excluding jurors dismissed for cause, was 25% for African Americans, and 80%...
In an embezzlement case, no fatal variance occurred where the indictment alleged that Smokey Park Hospitality, Inc., d/b/a Comfort Inn had an interest in the property. Although the evidence showed that Smokey Park Hospitality never owned the hotel, it acted as a management company and ran the...
(1) In a child sex case, the trial court did not err by qualifying as an expert a family therapist who provided counseling to both victims. The court first concluded that the witness possessed the necessary qualifications. Among other things, she had a master’s degree in Christian counseling and...
The trial court did not violate G.S. 15A-1335 when on remand it sentenced the defendant to a term that was longer than he originally received. The trial court initially imposed an illegal term, sentencing the defendant to a presumptive range sentence of 120 to 153 months; the correct presumptive...
The trial court erred by denying the defendant’s motion to dismiss false pretenses charges. The State failed to offer sufficient evidence to establish that the defendant made a false representation with the intent to deceive when he told the victims that he intended to invest the money that they...
(1) An indictment charging statutory rape of a 13, 14, or 15 year old was not defective because it alleged that the defendant did “carnally know” the victim. The court rejected the argument that the indictment was required to allege that “vaginal intercourse” occurred, concluding that the two...
The trial court did not impermissibly place the burden of proof on the defendant at a suppression hearing. Initially the burden is on the defendant to show that the motion is timely and in proper form. The burden then is on the State to demonstrate the admissibility of the challenged evidence....
Officers had probable cause to arrest the defendant for impaired driving. An officer saw the defendant lying behind a car on the ground, with his shirt over his head and his head in the sleeve hole. The defendant appeared unconscious. When the officer tried to arouse the defendant, he woke up...
G.S. 15A-903 requires production of already existing documents; it imposes no duty on the State to create or continue to develop additional documentation regarding an investigation. To the extent the trial court concluded that the State violated statutory discovery provisions because it failed...
The trial court did not err by denying the defendant’s motion to dismiss a charge of possession with intent to sell and deliver cocaine where there was sufficient evidence of constructive possession. Because the defendant did not have exclusive possession of the bedroom where the drugs were...
(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of possession with the intent to sell or deliver a counterfeit controlled substance. The court rejected the argument that to be considered a counterfeit controlled substance, the State must prove all three...
The trial court erred by dismissing murder charges pursuant to G.S. 15A-954(a)(4) (flagrant violation of constitutional rights causing irreparable prejudice). The court first held that the trial court erred by finding that destruction of the victim’s bones resulted in a flagrant violation of...
The trial court erred by ordering suppression as a sanction for the State’s failure to document and disclose various communications between agencies and individuals involved in the investigation. The court began by noting that G.S. 15A-903 requires production of already existing documents; it...
The trial court did not err by denying a fourteen-year-old juvenile’s motion to suppress his oral admissions to investigating officers. The motion asserted that the juvenile was in custody and had not been advised of his rights under Miranda and G.S. 7B-2101. The court found that the...
(1) The trial court erred by concluding that the defendant required the highest level of supervision and monitoring and ordering him to enroll in SBM for ten years when the STATIC-99 risk assessment classified him as a low risk and the trial court’s additional findings were not supported by the...
The trial court erred by dismissing with prejudice murder charges as a sanction for discovery violations where the record did not reveal a basis for the determination that dismissal was an appropriate sanction. Additionally, because the defendant actually received before trial the evidence the...
In an appeal from a conviction obtained in the Eve Carson murder case, the trial court did not abuse its discretion by denying three of the defendant’s challenges for cause during jury selection. The defendant failed to preserve for appellate review challenges as to two of the jurors. As to the...
In a misdemeanor possession of marijuana case, the State was not required to test the substance alleged to be marijuana where the arresting officer testified without objection that based on his training the substance was marijuana. The officer’s testimony was substantial evidence that the...
The trial court did not err in calculating the defendant’s prior record level. The trial court considered the defendant’s two federal felony convictions as Class I felonies for purposes of calculating prior record level. Because the defendant made no showing that either conviction was...
(1) In a resisting, delaying, obstructing case, the trial court did not err by instructing the jury that an arrest for indecent exposure would be a lawful arrest where the defendant never claimed at trial that he was acting in response to an unlawful arrest, nor did the evidence support a...
The evidence was insufficient to adjudicate the thirteen-year-old juvenile delinquent for reckless driving under G.S. 20-140(b). The evidence showed that the juvenile was driving a vehicle registered to his mother at the time of the wreck and that the vehicle that he was driving collided with a...
In an appeal from a conviction obtained in the Eve Carson murder case, the court held that the defendant was entitled to a new sentencing hearing in accordance with G.S. 15A-1476 (recodified as G.S. 15A-1340.19A), the statute enacted by the North Carolina General Assembly to bring the State’s...
A trial court’s order denying a motion to suppress is not invalid merely because the trial court did not make its findings immediately after the suppression hearing where the trial court later made the required findings.
There was sufficient evidence of an intent to kill when during a robbery the defendant fired a gun beside the store clerk’s head and the clerk testified that he thought the defendant was going to kill him.
The trial court erred in sentencing the defendant as a habitual felon because the issue was neither submitted to the jury nor addressed by a guilty plea. A mere stipulation to the prior felonies is insufficient; there must be a jury verdict or a record of a guilty plea.
In an appeal from a conviction obtained in the Eve Carson murder case, the court held that counsel did not commit a Harbison error (unconsented to admission of guilt by counsel). Even taken out of context, the remark at issue did not even approach a concession of guilt.
The defendant was entitled to a new trial where the trial court proceeded to trial over the defendant’s objection to continued representation by appointed counsel who had previously represented one of the State’s witnesses. At a pretrial hearing the State informed the trial court that defense...
A thirteen-year-old juvenile was not in custody within the meaning of G.S. 7B-2101 or Miranda during a roadside questioning by an officer. Responding to a report of a vehicle accident, the officer saw the wrecked vehicle, which had crashed into a utility pole, and three people walking...
In an appeal from a conviction obtained in the Eve Carson murder case, the trial court did not abuse its discretion by overruling the defendant’s objections to the State’s questions during jury selection. The defendant objected to questions about whether jurors could consider testimony by...
In a resist, delay and obstruct case arising out of an incident of indecent exposure, the trial court did not abuse its discretion by denying the defendant’s mistrial motion when an officer testifying for the State indicated that the defendant said he was a convicted sex offender. The trial...
The court rejected the defendant’s argument that a photographic lineup was impermissibly suggestive because the defendant’s photo was smaller than others in the array.
There was a sufficient factual basis for the defendant’s plea to felony breaking or entering where the State’s summary of the evidence was sufficient under G.S. 15A-1022(c). The State indicated that BB&T owned a residence located at 128 Lake Drive in Candler as a result of a foreclosure and...
In a case in which the defendant was convicted of soliciting a child by computer and attempted indecent liberties on a child, the trial court erred by concluding that the defendant’s laptop would have been inevitably discovered. The trial court ordered suppressed the defendant’s statements to...
The trial court erred by revoking the defendant’s probation. The defendant pleaded guilty and was sentenced to 120 days confinement suspended for one year of supervised probation. The trial court ordered the defendant to perform 48 hours of community service, although no date for completion of...
The evidence was sufficient to sustain a juvenile’s adjudication as delinquent for driving with no operator’s license under the corpus delicti rule. The thirteen-year-old juvenile admitted that he drove the vehicle. Ample evidence, apart from this confession existed, including that the juvenile...
The evidence was insufficient to adjudicate the thirteen-year-old juvenile delinquent for unauthorized use of a motor vehicle. Although the evidence showed that the juvenile was operating a motor vehicle registered to his mother, there was no evidence that he was using the vehicle without his...
The court rejected the juvenile’s argument that his statement was involuntary. The juvenile had argued that because G.S. 20-166(c) required him to provide his name and other information to the nearest officer, his admission to driving the vehicle was involuntary. The court rejected this argument...
In a drug case the court held that probable cause and exigent circumstances supported a roadside search of the defendant’s underwear conducted after a vehicle stop and that the search was conducted in a reasonable manner. After finding nothing in the defendant’s outer clothing, the officer...
In an appeal from a conviction obtained in the Eve Carson murder case, the court held that a robbery indictment was not fatally defective. The indictment alleged that the defendant:
unlawfully, willfully and feloniously did steal, take, and carry away and attempt to steal, take...
An indictment for felon in possession of a firearm was fatally defective because the charge was included as a separate count in a single indictment also charging the defendant with assault with a deadly weapon. G.S. 14-415.1(c) requires that possession of a firearm by a felon be charged in a...
A thirteen-year-old juvenile was not in custody within the meaning of G.S. 7B-2101 or Miranda during a roadside questioning by an officer. Responding to a report of a vehicle accident, the officer saw the wrecked vehicle, which had crashed into a utility pole, and three people walking...
In a case in which the defendant was charged with first-degree murder, the trial court did not err by denying the defendant’s request for a second-degree murder charge where there was no evidence to negate the State’s proof of every element of first-degree murder; the defendant’s defense was...
The trial court did not err by denying the defendant’s motion to dismiss first-degree murder charges where the victim was in utero at the time of the incident but was born alive and lived for one month before dying.
When the trial court enters a PJC, there is no final judgment from which to appeal.
In determining whether out-of-state convictions were substantially similar to NC offenses, the trial court erred by failing to compare the elements of the offenses and instead comparing their punishment levels.
The trial court did not err by finding that a NY drug conviction for third-degree drug sale was substantially similar to a NC Class G felony under G.S. 90-95. Comparing the two states’ statutes, the offenses were substantially similar, notwithstanding the fact that the states’ drug schedules are...
The trial court did not err by allowing a child victim to testify out of the defendant’s presence by way of a closed circuit television. Following State v. Jackson, 216 N.C. App. 238 (Oct. 4, 2011) (in a child sexual assault case, the defendant’s confrontation rights were not violated...
The trial court did not err by denying the defendant’s motion to dismiss a charge of assault with deadly weapon with intent to kill, over the defendant’s argument that there was insufficient evidence of an intent to kill. This charge was based on the defendant’s use of a bat to assault his wife...
The trial court erred by assigning a PRL point under G.S. 15A-1340.14(b)(6) (one point if all the elements of the present offense are included in any prior offense). The trial court assigned the point because the defendant was convicted of felony speeding to elude (Class H felony) and had a...
In a habitual misdemeanor assault case, the trial court erred by failing to instruct the jury that the defendant’s assault under G.S. 14-33 must have inflicted physical injury. However, given the uncontroverted evidence regarding the victim’s injuries, the error did not rise to the level of...
The trial court erred by sentencing the defendant in the aggravated range without considering uncontradicted evidence of a mitigating factor. One judge declined to reach this issue.
The trial court did not err by denying the defendant’s motion to dismiss a charge of attempted malicious castration of a privy member. The victim was the son of the woman with whom the defendant lived; a doctor found 33 injuries on the victim’s body, including a 2.5 inch laceration on his penis...
During the habitual felon trial stage, the jury may consider evidence of a prior felony presented during the trial for the principal offense. Evidence of one prior conviction was presented during the trial for the principal offense; evidence of two prior convictions was introduced in the...
(1) A defendant may be convicted of assault by strangulation and assault with a deadly weapon inflicting serious injury where two incidents occurred. The fact that these assaults were part of a pattern of chronic child abuse does not mean that they are considered one assault. (2) The State...
The State presented sufficient evidence that the defendant acted with premeditation and deliberation where, among other things, the defendant did not want a second child and asked his wife to get an abortion, he was involved in a long-term extramarital affair with a another woman who testified...
In a case in which the defendant was charged with various crimes related to his shooting of his pregnant wife, the trial court did not err by limiting the defendant’s voir dire of prospective jurors. The charges against the defendant included first-degree murder of his child, who was born alive...
The trial court did not err by denying the defendant’s motion to dismiss a charge of attempted first-degree murder where the defendant shot the victim in the abdomen. The defendant removed the victim’s cell phone from her reach, left the room, returned with a .45 caliber pistol, and shot her in...
The trial court did not abuse its discretion by revoking the defendant’s probation under the Justice Reinvestment Act when the defendant was convicted of another criminal offense while on probation.
Distinguishing State v. Hamby, 129 N.C. App. 366, (1998), the court held that the defendant could appeal the trial court’s calculation of her prior record level even though she had stipulated to her prior convictions on the sentencing worksheet.
The defendant’s shooting of the victim’s mother (the defendant’s wife) while the victim was in utero was a proximate cause of the victim’s death after being born alive. The gunshot wound necessitated the child’s early delivery, the early delivery was a cause of a complicating condition, and that...
The trial court did not err by denying the defendant’s motion to dismiss a charge of assault by strangulation on the same victim. The defendant argued that because his obstruction of the victim’s airway was caused by the defendant’s hand over the victim’s nose and mouth, rather than “external...
The trial court did not abuse its discretion by denying the defendant’s request to be provided, prior to voir dire, with the trial court’s intended jury instructions regarding the killing of an unborn fetus. The defendant wanted the instruction to “clarify the law” before questioning of the...
The trial court erred by dismissing a misdemeanor DWI charge under G.S. 15A-954. The trial court erroneously dismissed the charges under G.S. 15A-954(a)(1) (statute alleged to have been violated is unconstitutional on its face or as applied to the defendant) without making a finding that the DWI...
A clerical error occurred where the trial court found that it could revoke the defendant’s probation under the Justice Reinvestment Act because the defendant was convicted of another criminal offense while on probation but checked the box on the form indicating that the revocation was based on...
The evidence supported the trial court’s determination that the defendant was in PRL V. The trial court based its determination on NC and NY DCI records. The defendant argued that the NY DCI record was not sufficient because it was inconsistent with the NC DCI record. The court found any...
Holding, in a case in which the trial court denied the defendant’s motion to terminate his sex offender registration, that the superior court did not have jurisdiction to enter its order. Under G.S. 14-208.12A(a), a petition to terminate must be filed in the district where the person was...
In a case involving five counts of indecent liberties, no unanimity issue arose where the trial court framed the jury instructions in terms of the statutory requirements and referenced the indictments, each of which specified a different, non-overlapping time frame. The trial court’s...
Reversing the trial court, the court held that probable cause supported issuance of a search warrant to search the defendant’s residence. Although the affidavit was based on anonymous callers, law enforcement corroborated specific information provided by a caller so that the tip had a sufficient...
The trial court did not violate the defendant’s constitutional right to a public trial under Waller v. Georgia by closing the courtroom during a sexual abuse victim’s testimony where the State advanced an overriding interest that was likely to be prejudiced; the closure of the courtroom...
Reversing the trial court, the court held that probable cause supported issuance of a search warrant to search the defendant’s residence. Although the affidavit was based an anonymous caller, law enforcement corroborated specific information provided by the caller so that the tip had a...
Five indecent liberties indictments were sufficient where they were couched in the language of the statute and specified different and non-overlapping time frames. The court rejected the defendant’s argument that the indictments were insufficient because they included “non-specific allegations...
(1) G.S. 14-208.18(a)(1)-(3) creates three separate and distinct criminal offenses. (2) Although the defendant did not have standing to assert that G.S. 14-208.18(a)(3) was facially invalid, he had standing to raise an as applied challenge. (3) G.S. 14-208.18(a)(3), which prohibits a sex...
Citing Lafler v. Cooper, 566 U.S. 156 (2012) (defense counsel rendered ineffective assistance by advising a defendant to reject a plea offer), the court dismissed without prejudice the defendant’s claim that defense counsel rendered ineffective assistance by advising him to reject a...
The rule of State v. Walker, 269 N.C. 135 (1967) (State may not introduce evidence of a written confession unless that written statement bears certain indicia of voluntariness and accuracy) does not apply where an officer testified to the defendant’s oral statements.
Where a defendant failed to make a motion to dismiss on the basis of fatal variance at trial, the issue was waived for purposes of appeal.
A passenger has standing to challenge a stop of a vehicle in which the passenger was riding.
No reasonable suspicion supported a traffic stop. The State had argued reasonable suspicion based on the driver’s alleged crossing of the fog line, her and her passenger’s alleged nervousness and failure to make eye contact with officers as they drove by and alongside the patrol car, and the...
G.S. 20-141.4(c) does not bar simultaneous prosecutions for involuntary manslaughter and death by vehicle; it only bars punishment for both offenses when they arise out of the same death.
Where a defendant failed to make a motion to dismiss on the basis of fatal variance at trial, the issue was waived for purposes of appeal.
(1) An officer had reasonable suspicion to stop the defendant’s vehicle for speeding. The court rejected the defendant’s argument that because the officer only observed the vehicle for three to five seconds, the officer did not have a reasonable opportunity to judge the vehicle’s speed. The...
G.S. 20-141.4(c) does not bar simultaneous prosecutions for involuntary manslaughter and death by vehicle; it only bars punishment for both offenses when they arise out of the same death.
In a felony larceny case, there was sufficient evidence that a stolen vehicle was worth more than $1,000. The value of a stolen item is measured by fair market value and a witness need not be an expert to give an opinion as to value. A witness who has knowledge of value gained from experience,...
Counsel rendered ineffective assistance by failing to file what would have been a meritorious motion to suppress.
Given the manner of its use, there was sufficient evidence that a kitchen table chair was a deadly weapon.
In a case in which the defendant was convicted of perpetrating a hoax on law enforcement officers by use of a false bomb, the trial court did not err by admitting evidence of the defendant’s prior acts against his estranged wife. The defendant’s wife had a domestic violence protective order...
The trial court erred by denying credit for the time the defendant was incarcerated pending a revocation hearing on his first violation of post-release supervision. Under G.S. 15-196.1, the trial court was required to credit the defendant with eight days he spent in custody awaiting a revocation...
In a felon in possession case, there was sufficient evidence that the defendant had constructive possession of the firearm. The defendant was driving a rental vehicle and had a female passenger. The gun was in a purse in the car’s glove container. The defendant was driving the car and his...
Where a burglary victim identified the defendant as the perpetrator in court, the rule of State v. Irick, 291 N.C. 480 (1977) (fingerprint evidence can withstand a motion for nonsuit only if there is substantial evidence that the fingerprints were impressed at the time of the crime),did...
The trial court erred by instructing on flight. The defendant fled from an officer responding to a 911 call regarding violation of a domestic violence protective order. After being arrested the defendant’s vehicle was searched and he was charged with perpetrating a hoax on law enforcement...
The trial court did not err by denying the defendant’s request for an entrapment instruction where no credible evidence suggested that he would not have committed the crime except for law enforcement’s persuasion, trickery or fraud or that the crime was the creative production of law enforcement...
The trial court erred by requiring lifetime sex offender registration based on second-degree sexual offense convictions. Although the convictions qualify as reportable offenses requiring registration for 30 years, they do not constitute an aggravated offense requiring lifetime registration.
Forgery and larceny of a chose in action are not mutually exclusive offenses. The defendant argued that both forgery and uttering a forged check require a counterfeit instrument while larceny of a chose in action requires a “valid instrument.” The court concluded that larceny of a chose in...
The discovery of marijuana on a passenger provided probable cause to search a vehicle. After stopping the defendant and determining that the defendant had a revoked license, the officer told the defendant that the officer’s K-9 dog would walk around the vehicle. At that point, the defendant...
Habitual misdemeanor assault cannot serve as a prior felony for purposes of habitual felon.
In a drug case, an officer properly was allowed to identify the substance at issue as marijuana based on his “visual and olfactory assessment”; a chemical analysis of the marijuana was not required.
In a sexual assault case, the trial court did not err by using the word “victim” in the jury instructions. Use of this word did not constitute an opinion by the trial court regarding guilt and caused no prejudice.
The trial court did not err by denying the defendant’s motion to continue trial so that he could locate two alibi witnesses. Both alibi witnesses were served months prior and the trial had already been continued for this purpose.
In a drug case, the trial court did not commit plain error by concluding that an officer had reasonable suspicion to conduct a warrantless stop. The officer received information from two informants who had previously provided him with reliable information leading to several arrests; the...
In an arson case, there was sufficient evidence of malice where, among other things, the defendant was enraged at the property owner.
The trial court erred by ordering the defendant to enroll in lifetime satellite-based monitoring based on its determination that second-degree sexual offense was an aggravating offense. Considering the elements of the offense, second-degree sexual offense is not an aggravated offense.
The trial court did not err when taking the defendant’s waiver of counsel. The trial court complied with the statute and asked the standard waiver questions in the judges’ bench book. The court rejected the defendant’s argument that the waiver was invalid because the trial judge did not inform...
(1) Forgery and larceny of a chose in action are not mutually exclusive offenses. The defendant argued that both forgery and uttering a forged check require a counterfeit instrument while larceny of a chose in action requires a “valid instrument.” The court concluded that larceny of a chose in...
There was sufficient evidence in a case where the defendant was convicted of perpetrating a hoax on law enforcement officers by use of a false bomb or other device in violation of G.S. 14-69.2(a). Specifically, there was sufficient evidence that the defendant concealed, placed or displayed the...
Seizure of cocaine was justified under the “plain feel” doctrine. While searching the defendant the officer “felt a large bulge” in his pocket and immediately knew based on its packing that it was narcotics.
In an assault with a deadly weapon on a law enforcement officer case, the trial court did not err by allowing the officer to give lay opinion regarding the weight of a kitchen chair (the alleged deadly weapon) that the defendant threw at him. The officer’s observation of the chair and of the...
In a felony larceny case, there was sufficient evidence that the goods were valued at more than $1,000 where the victim testified that $500 in cash and a laptop computer valued at least at $600 were taken.
A clerical error occurred in a Fair Sentencing Act case when the trial court found an aggravating factor and went on to sentence the defendant above the presumptive range but failed to check the box on the judgment indicating that the aggravating factor existed. The court remanded for correction...
In an identity theft case where the defendant was alleged to have used credit card numbers belonging to several victims, the trial court did not abuse its discretion under Rule 403 by admitting evidence that the defendant also was in possession of debit and EBT cards belonging other persons to...
In an assault with a deadly weapon with intent to kill inflicting serious injury case where the weapon was not a deadly weapon per se, the trial court did not err by declining to give self-defense instruction N.C.P.I.—Crim. 308.40 and did not commit plain error by declining to give self-defense...
In a second-degree rape case, the trial court properly admitted 404(b) evidence of the defendant’s prior sexual conduct with the victim to show common scheme. The conduct leading to the charges occurred in 1985 when the victim was sixteen years old. After ingesting alcohol and other substances,...
The trial court committed plain error by instructing the jury that it could find the defendant guilty of conspiracy if the defendant conspired to commit felony breaking and entering or felony larceny where the indictment alleged only a conspiracy to commit felony breaking or entering.
In an assault with a deadly weapon inflicting serious injury case, the defendant is not entitled to a simple assault instruction where the deadly weapon element is left to the jury but there is uncontroverted evidence of serious injury.
No fatal variance occurred in an identity theft case. The defendant argued that there was a fatal variance between the indictment, which alleged that he possessed credit card numbers belonging to four natural persons and the evidence, which showed that three of the credit cards were actually...
(1) In a delivery of marijuana case, the evidence was sufficient to survive a motion to dismiss where it established that the defendant transferred less than five grams of marijuana for remuneration. The State need not show that the defendant personally received the compensation. (2) Where the...
In an identity theft case, the evidence was sufficient to establish that the defendant "used" or "possessed" another person’s social security number to avoid legal consequences. After being detained and questioned for shoplifting, the defendant falsely gave the officer his name as Roy Lamar Ward...
The trial court erred by denying the defendant’s motion to suppress intoxilyzer results. After arrest, the defendant was informed of his rights under G.S. 20-16.2(a) and elected to have a witness present. The defendant contacted his witness by phone and asked her to witness the intoxilyzer test...
After waiving his right to counsel the defendant did not unambiguously ask to speak a lawyer. The court rejected the defendant’s argument that he made a clear request for counsel. It concluded: “Defendant never expressed a clear desire to speak with an attorney. Rather, he appears to have been...
There was sufficient evidence to establish the offense of conversion of property by a bailee in violation of G.S. 14-168.1. The court rejected the defendant’s argument that because “[e]vidence of nonfulfillment of a contract obligation” is not enough to establish intent for obtaining property by...
The trial court did not err by requiring the defendant to pay $5,000 in restitution where trial evidence supported the restitution award and the trial court properly considered the defendant’s resources.
(1) G.S. 14-415.12 (criteria to qualify for a concealed handgun permit) was not unconstitutional as applied to the petitioner. Relying on case law from the federal circuit courts, the court adopted a two-part analysis to address Second Amendment challenges. First, the court asks whether the...
(1) No violation of the defendant’s Sixth Amendment right to counsel occurred when the trial court found that the defendant forfeited his right to counsel because of serious misconduct and required him to proceed pro se. The court rejected the defendant’s argument that Indiana v. Edwards...
In a trafficking in opium case, the State’s forensic expert properly testified that the substance at issue was an opium derivative where the expert relied on a chemical analysis, not a visual identification.
(1) After being read his Miranda rights, the defendant knowingly and intelligently waived his right to counsel. The court rejected the defendant’s argument that the fact that he never signed the waiver of rights form established that that no waiver occurred. The court also rejected the...
The defendant’s confession was voluntary. The court rejected the defendant’s argument that he “was cajoled and harassed by the officers into making statements that were not voluntary,” that the detectives “put words in his mouth on occasion,” and “bamboozled [him] into speaking against his...
No violation of the defendant’s Sixth Amendment right to counsel occurred when the trial court found that the defendant forfeited his right to counsel because of serious misconduct and required him to proceed pro se. The court rejected the defendant’s argument that Indiana v. Edwards...
Improper testimony by an expert pediatrician in a child sexual abuse case required a new trial. After the alleged abuse, the child was seen by Dr. Gutman, a pediatrician, who reviewed her history and performed a physical exam. Gutman observed a deep notch in the child’s hymen, which was highly...
In a trafficking case, there was no fatal variance between the indictment, alleging that the defendant trafficked in opium, and the evidence at trial, showing that the substance was an opium derivative. G.S. 90-95(h)(4) “does not create a separate crime of possession or transportation of an...
In a case involving a charge of possessing a controlled substance on the premises of a local confinement facility, the defendant’s own testimony that he had a “piece of dope . . . in the jail” was sufficient evidence that he possessed a controlled substance on the premises.
In this child sexual abuse case, the trial court did not impermissibly allow the State to use extrinsic evidence to impeach the defendant on a collateral matter. On cross-examination, the defendant denied that she had told anyone that the victim began masturbating at an early age, given the...
In the context of an appeal from a contempt proceeding, the court held that by asking the victim at trial about a possible prior instance of rape between the victim and a cousin without first addressing the relevance and admissibility of the question during an in camera hearing, defense counsel...
The trial court erred by denying the defendant’s motion to suppress property seized in a warrantless search. After receiving a tip that a person living at a specified address was growing marijuana, officers went to the address and knocked on the front and side doors. After getting no answer, two...
In a discharging a firearm into occupied property case, a residence was occupied when the family was on the front porch when the weapon was discharged.
For reasons discussed in the opinion, the court affirmed the trial judge’s order finding defense counsel in contempt of court for willfully disobeying a court order regarding permissible inquiry under the Rape Shield statute.
The trial court made sufficient findings to support its decision to place the defendant on probation for sixty months.
(1) Admission of a forensic report identifying a substance as a controlled substance without testimony of the preparer violated the defendant’s confrontation clause rights. (2) The trial court erred by allowing a substitute analyst to testify that a substance was a controlled substance based on...
In this child sexual abuse case, the trial court did not err by allowing the State to ask a DSS social worker about a 2009 DSS petition alleging that the victim was neglected, sexually abused and dependent where the defendant opened the door to this testimony. Before the witness testified, the...
(1) In this child sexual abuse case, the trial court did not err by allowing an emergency room doctor who examined one of the children to testify to the child’s credibility where the defendant elicited this evidence during his own cross-examination. (2) The trial court did not err by allowing...
In a felony larceny after a breaking or entering case, the trial court did not abuse its discretion by determining that a text message sent from the defendant’s phone was properly authenticated where substantial circumstantial evidence tended to show that the defendant sent the text message. The...
In this child sexual abuse case, the defendant’s confession was not involuntary. After briefly speaking to the defendant at his home about the complaint, an officer asked the defendant to come to the police station to answer questions. The court rejected the defendant’s argument that his...
(1) The trial court erred by failing to exercise discretion when ordering the defendant to pay court costs. Ordering payment of costs, the court stated: “I have no discretion but to charge court costs and I'll impose that as a civil judgment.” Amended G.S. 7A-304(a) does not mandate imposition...
Although the trial court erred by allowing the State’s expert to testify that the child victim had been sexually abused, the error did not rise to the level of plain error. Responding to a question about the child’s treatment, the expert, a licensed clinical social worker, said: "For a child,...
Although the indictment failed to specify G.S. 14-208.9(a) (sex offender registration violation) as the statute violated, this omission alone did not create a fatal defect.
Sufficient evidence supported the trial court’s determination of the defendant’s prior record level. Counsel’s oral stipulation and the prior record level worksheet established the existence of an out-of-state felony conviction, even though neither the defendant nor defense counsel signed the...
The prosecutor did not impermissibly vouch for the credibility of a State’s witness by asking whether any promises were made to the witness in exchange for his testimony.
In a speeding to elude case, the court rejected the defendant’s argument that she did not intend to elude an officer because she preferred to be arrested by a female officer rather than the male officer who stopped her. The defendant’s preference in this regard was irrelevant to whether she...
There was sufficient evidence that the defendant perpetrated the murder. The defendant’s cell phone was found next to the victim, cell phone records showed that the phone was within one mile of the murder scene around the time of the murder, the defendant gave inconsistent statements about his...
An indictment charging failing to notify the sheriff’s office of change of address by a registered sex offender under G.S. 14-208.9 was defective where it failed to allege that the defendant was a person required to register.
Even if the trial court erred in its jury instruction with regard to the required state of mind, no plain error occurred in light of the overwhelming evidence of guilt.
(1) In a felon in possession case, evidence that the defendant was “playing with” the guns in question “likely” constituted sufficient evidence to support an instruction on actual possession of the guns. (2) The trial court erred by instructing the jury on constructive possession of the guns....
Based on the circumstances of this felon in possession case, the trial court’s failure to further inquire into and answer the jury’s questions regarding constructive possession of the gun constituted plain error. The circumstances included the fact that the jury was instructed on actual...
The court remanded for correction of a clerical error where the trial court announced a fine of $100 but the judgment incorrectly reflected a $500 fine.
The evidence was sufficient on a charge of improper storage of a firearm under G.S. 14-315.1. The defendant argued that the evidence failed to show that he stored or left the handgun in a condition and manner accessible to the victim. The court found sufficient circumstantial evidence on this...
(1) The trial court erred by entering a pretrial order dismissing, under G.S. 15A-954(a)(4), murder, child abuse, and sexual assault charges against the defendant. The statute allows a trial court to dismiss charges if it finds that the defendant's constitutional rights have been flagrantly...
(1) The trial court erred by entering a pretrial order dismissing, under G.S. 15A-954(a)(4), murder, child abuse, and sexual assault charges against the defendant. The statute allows a trial court to dismiss charges if it finds that the defendant's constitutional rights have been flagrantly...
The State presented sufficient evidence of involuntary manslaughter. The State proved that an unlawful killing occurred with evidence that the defendant committed the misdemeanor of improper storage of a firearm. Additionally, the State presented sufficient evidence that the improper storage was...
(1) The trial court did not abuse its discretion by revoking the defendant’s probation. The defendant asserted that the revocation was improper because he never received a written statement containing the conditions of his probation, as required by G.S. 15A-1343(c). The court noted that the...
In a case in which the defendant was convicted of first-degree murder, the trial court did not err by failing to instruct the jury on second-degree murder. The court found that the record supported the inference that the defendant murdered the victim after premeditation and deliberation. The...
In a child sexual assault case in which the victim was the defendant’s son, the trial court erred by allowing the State to cross-examine the defendant with questions summarizing the results of a psychological evaluation, not admitted into evidence, that described the defendant as a psychopathic...
In a child sexual assault case in which the defendant was charged with assaulting his son, the trial court erred by admitting under Rule 404(b) evidence of the defendant's writings in a composition book about forcible, non-consensual anal sex with an adult female acquaintance. The defendant...
The defendant was denied his right to counsel at a suppression hearing. The suppression hearing was a critical stage. Although the trial court recorded waivers of counsel prior to the hearing, the waivers were not valid because the trial court failed to inform the defendant of the maximum...
In an armed robbery case, the trial court did not commit plain error by failing instruct the jury on a lesser-included offense of “aggravated common law robbery.” The court rejected the defendant’s argument that Apprendi and Blakely created a North Carolina crime of aggravated...
(1) The trial court erred in connection with its ruling on a suppression motion in an impaired driving case. The trial court failed to look beyond whether the defendant’s driving was normal in assessing whether the officer had reasonable suspicion to stop the defendant’s vehicle. (2) The officer...
In a child sexual assault case in which the victim was the defendant’s son, the trial court erred by allowing the State to cross-examine the defendant with questions summarizing the results of a psychological evaluation, not admitted into evidence, that described the defendant as a psychopathic...
In a murder case, the trial court did not err by excluding evidence suggesting that the victim’s wife committed the crime. Distinguishing cases where alternate perpetrators were positively identified and both direct and circumstantial evidence demonstrated the third parties’ opportunity and...
The rules of evidence apply to proceedings related to post-conviction motions for DNA testing under G.S. 15A-269.
Although the trial court erred by sending exhibits to the jury deliberation room over objection of defense counsel, the error was not prejudicial. The deliberating jury asked to review a number of exhibits. After consulting with counsel outside of the presence of the jury the trial court...
The rules of evidence apply to proceedings related to post-conviction motions for DNA testing under G.S. 15A-269.
By failing to assert fatal variance as a basis for his motion to dismiss, the defendant failed to preserve the issue for appellate review. Even if the issue had been preserved, it had no merit. Defendant argued that there was a fatal variance between the name of the victim in the indictment, You...
The defendant’s conviction for kidnapping was improper where the restraint involved was inherent in two sexual assaults and an assault by strangulation for which the defendant was also convicted.
(1) The evidence was sufficient to support a conviction for resisting, delaying and obstructing an officer during a 10-15 second incident. Officers observed members of the Latin Kings gang yelling gang slogans and signaling gang signs to a group of rival gang members. To prevent conflict, the...
(1) Although a trial court may summarily deny or dismiss a suppression motion for failure to attach a supporting affidavit, it has the discretion to refrain from doing so. (2) In granting the defendant’s motion to suppress, the trial judge erred by failing to make findings of fact resolving...
The trial court erred by granting the defendant’s motion to suppress on grounds that officers impermissibly prolonged a lawful vehicle stop. Officers McKaughan and Jones stopped the defendant’s vehicle after it twice weaved out of its lane. The officers had a drug dog with them. McKaughan...
In granting the defendant’s motion to suppress, the trial judge erred by failing to make findings of fact resolving material conflicts in the evidence. The court rejected the defendant’s argument that the trial court “indirectly provided a rationale from the bench” by stating that the motion was...
The trial court was not required to make written finding of fact supporting its denial of a suppression motion where the trial court provided its rationale from the bench and there were not material conflicts in the evidence.
The trial court did not impermissibly coerce a verdict. While deliberating, the jury asked to hear certain trial testimony again. The trial judge initially denied the request. After the jury indicated that it could not reach a verdict, the trial judge asked if it would be helpful to have the...
The defendant’s confrontation rights were not violated when an officer testified to the victim’s statements made to him at the scene through the use of a telephonic translation service. The defendant argued that his confrontation rights were violated when the interpreter’s statements were...
Citing Berkemer v. McCarty, 468 U.S. 420, 442 (1984), the court held that the defendant was not in custody for purposes of Miranda during a traffic stop.
Assault on a female is not a lesser-included of first-degree sexual offense.
The trial court did not err by denying the defendant’s motion for post-conviction DNA testing where the defendant did not meet his burden of showing materiality under G.S. 15A-269(a)(1). The defendant made only a conclusory statement that "[t]he ability to conduct the requested DNA testing is...
The trial court erred by ordering the defendant to pay restitution when the State failed to present any evidence to support the restitution order. The State conceded the error.
In an assault with a deadly weapon inflicting serious injury case, the trial court did not err by instructing the jury that three gunshot wounds to the leg constituted serious injury. The victim was shot three times, was hospitalized for two days, had surgery to remove a bone fragment from his...
The trial court did not abuse its discretion by refusing to allow a defense witness to testify as an expert. The defense proffered a forensic scientist and criminal profiler for qualification as an expert. Because the witness’s testimony was offered to discredit the victim’s account of the...
On what it described as an issue of first impression in North Carolina, the court held that a drug dog’s positive alert at the front side driver’s door of a motor vehicle does not give rise to probable cause to conduct a warrantless search of the person of a recent passenger of the vehicle who...
(1) On remand from the N.C. Supreme Court for consideration of an issue not addressed in the original decision, the court held that the trial court did not err by granting the defendant’s motion to suppress cocaine found following the defendant’s arrest. The State argued that suppression was...
In a murder case in which the defendant relied on an alibi defense, the trial court did not err by allowing the State to amend the date of the offense stated in the indictment from December 28, 2009, to December 27, 2009. The court noted that because the defendant’s alibi witness’s testimony...
The trial court did not err by allowing the two officers to identify the green vegetable matter as marijuana based on their observation, training, and experience.
(1) By failing to assert fatal variance as a basis for his motion to dismiss, the defendant failed to preserve the issue for appellate review.
The trial court did not err by denying the defendant’s motion to compel disclosure of the identity of a confidential informant who provided the defendant’s cell phone number to the police. Applying Roviaro v. United States, 353 U.S. 53 (1957), the court noted that the defendant failed...
The trial court did not err by denying a motion to dismiss asserting that the defendant was deprived of his constitutional rights due to his involuntary absence at trial. The defendant was missing from the courtroom on the second day of trial and reappeared on the third day. To explain his...
Assault on a female is not a lesser-included of first-degree sexual offense.
In a murder case, the trial court did not abuse its discretion by allowing the State to impeach two witnesses with their prior inconsistent statements to the police. Both witnesses testified that they were at the scene but did not see the defendant. The State then impeached them with their prior...
When assessing whether a defendant is charged with a violent crime pursuant to G.S. 15A-1003(a) and in connection with an involuntary commitment determination, courts may consider the elements of the charged offense and the underlying facts giving rise to the charge. However, the fact-based...
A taking occurred when the defendant grabbed the victim’s cell phone from his pocket and threw it away. The fact that the taking was for a relatively short period of time is insignificant.
The trial court did not err by denying the defendant’s motion to disclose the identity of a confidential informant in a drug case where—for reasons discussed in the court’s opinion—the defendant failed to show that the circumstances of his case required disclosure.
There was no fatal defect in an indictment for felony assault on a handicapped person. The indictment alleged, in part, that the defendant unlawfully, willfully, and feloniously assaulted and struck “a handicapped person by throwing Carol Bradley Collins across a room and onto the floor and by...
Although counsel provided deficient performance in this sexual assault case, the defendant was not prejudiced by this conduct and thus the defendant’s claim of ineffective assistance of counsel must fail. The defendant argued that counsel was ineffective when he asked the defendant on direct...
In a sexual assault case involving the defendant’s stepdaughter, the trial court did not err by quashing a subpoena that would have required a district court judge to testify regarding statements made by the victim’s mother to the judge in a DVPO proceeding. At trial the defense questioned the...
There was a sufficient factual basis to support a plea to assault on a handicapped person where the prosecutor’s summary of the facts indicated that the victim was 80 years old, crippled in her knees with arthritis, and required a crutch to walk; the defendant told the victim that he would kill...
(1) The defendant’s confinement of the victims was not inherent in related charges of armed robbery and sexual offense and thus could support the kidnapping charges. The defendant robbed the victims of a camera and forced them to perform sexual acts. He then continued to hold them at gunpoint...
The trial court erred by determining that the defendant was a prior record level VI when the defendant’s Florida conviction for burglary was not sufficiently similar to the corresponding N.C. burglary offense. The Florida statute is broader than the N.C. statute in that it encompasses more than...
The trial court violated the defendant’s right to a public trial by temporarily closing the courtroom while the victim testified concerning an alleged rape perpetrated by defendant without engaging in the four-part test set forth in Waller v. Georgia, 467 U.S. 39 (1984). The court held...
In this carrying a concealed gun case, the court addressed the issue of whether the provisions in G.S. 14-269(a1) were elements or defenses. Following State v. Trimble, 44 N.C. App. 659 (1980) (dealing with the statute on poisonous foodstuffs in public places), it explained:
...The court rejected the defendant’s argument that denying him a probable cause hearing violated his constitutional rights by depriving him of discovery and impeachment evidence. Relying on State v. Hudson, 295 N.C. 427 (1978) (the defendant failed to show that he was prejudiced by a lack...
When a defendant discharges counsel and proceeds pro se, he or she may not assert a claim of ineffective assistance of counsel with regard to his or her own representation.
The court admonished defense counsel for exceeding the bounds of zealous advocacy. In attacking the professionalism and ethics of the prosecutors, counsel said that the prosecutor “failed to investigate the truth”; “distort[ed] the truth”; “misled and misrepresented facts”; “subverted the truth...
The prosecutor’s summary of facts and the defendant’s stipulations were sufficient to establish a factual basis for the plea.
The trial court did not err by refusing to instruct the jury on jury nullification.
The trial court abused its discretion by denying defense counsel’s motion requesting that the defendant be evaluated by a mental health professional to determine competency. At the call of the case for trial, defense counsel made a motion, supported by an affidavit by defense counsel and prior...
The trial court did not err by finding that the defendant consented to a search of his residence. The court rejected the defendant’s argument that the trial court must make specific findings regarding the voluntariness of consent even when there is no conflict in the evidence on the issue. Here...
When charging carrying a concealed gun under G.S. 14-269, the exception in G.S. 14-269(a1)(2) (having a permit) is a defense not an essential element and need not be alleged in the indictment.
The defendant’s waiver of Miranda rights was knowing, voluntary, and intelligent. Among other things, the defendant was familiar with the criminal justice system, no threats or promises were made to him before he agreed to talk, and the defendant was not deprived of any necessaries....
The trial court erred by finding that the defendant willfully violated probation by failing to have an approved residence plan. The defendant was placed on supervised probation to begin when he was released from incarceration on separate charges. On the day that the defendant was scheduled to be...
(1) The defendant’s confrontation rights were not violated when the State’s expert testified about DNA testing on the victim’s rape kit done by a non-testifying trainee. The trainee worked under the testifying expert’s direct observation and supervision and the findings were his own. (2) The...
The defendant could not be convicted of second-degree sexual offense (mentally disabled victim) and crime against nature (where lack of consent was based on the fact that the victim was mentally disabled, incapacitated or physically helpless) based on the same conduct (fellatio). The court found...
Based on the trial court’s colloquy with the defendant, the court rejected the defendant’s challenge to the knowing and voluntary nature of his plea. The defendant had argued that the trial court did not adequately explain that judgment may be entered on his plea to assault on a handicapped...
The trial court erred by revoking the defendant’s probation on grounds that he willfully violated the condition that he reside at a residence approved by the supervising officer. The defendant was violated on the day he was released from prison, before he even “touched outside.” Prior to his...
The defendant could not be convicted of second-degree sexual offense (mentally disabled victim) and crime against nature (where lack of consent was based on the fact that the victim was mentally disabled, incapacitated or physically helpless) based on the same conduct (fellatio). The court found...
There was no fatal defect in an indictment for felony assault on a handicapped person. The indictment alleged, in part, that the defendant unlawfully, willfully, and feloniously assaulted and struck “a handicapped person by throwing Carol Bradley Collins across a room and onto the floor and by...
In this sexual assault trial, the prosecutor’s comment during closing argument was not a comment on the defendant’s failure to testify. The prosecutor stated: “There are only two people in this courtroom as we sit here today that actually know what happened between the two people, and that’s [...
In a case in which the defendant was convicted of trafficking in more than 400 grams of cocaine, the trial court did not err by allowing the State’s expert to testify that the substance was cocaine where the expert combined three separate bags into one bag before testing the substance. After...
(1) The trial court properly conducted a de novo review on resentencing, even though the defendant was sentenced to the same term that he received at the original sentencing hearing. (2) At a resentencing during which new evidence was presented, the trial court did not err by failing to find a...
In a drug trafficking and maintaining a dwelling case, evidence that a handgun and ammunition were found in the defendant’s home was relevant to both charges.
The trial court did not abuse its discretion by finding that one aggravating factor outweighed six mitigating factors.
There was sufficient evidence to support a conviction of maintaining a dwelling. The defendant argued that there was insufficient evidence that he knew about the drugs found in the home. However, the court held that its conclusion that he constructively possessed the drugs resolved that issue in...
In this drug trafficking case the court held that there was sufficient evidence to support a finding of constructive possession of cocaine. Police had previously received a tip that drug sales were occurring at the home where the drugs were found; police later received similar information in...
The defendant was seized when officers parked directly behind his stopped vehicle, drew their firearms, and ordered the defendant and his passenger to exit the vehicle. After the defendant got out of his vehicle, an officer put the defendant on the ground and handcuffed him.
No reasonable and articulable suspicion supported seizure of the defendant made as a result of an anonymous tip. When evaluating an anonymous tip in this context, the court must determine whether the tip taken as a whole possessed sufficient indicia of reliability. If not, the court must assess...
Because the social worker-patient privilege belongs to the patient alone, a social worker did not have standing to appeal an order compelling her comply with a subpoena where the patient never asserted the privilege. In this civil action the court found that the record and the patient’s failure...
There was sufficient evidence that a lawn chair was a dangerous weapon for purposes of armed robbery. The victim was knocked unconscious and suffered multiple facial fractures and injuries which required surgery; after surgery his jaw was wired shut for weeks and he missed 2-3 weeks of work; and...
(1) There was sufficient evidence that a burglary occurred at nighttime. The defendant left his girlfriend’s apartment after 10 pm and did not return until 6 am the next day. The burglary occurred during that time period. After taking judicial notice of the time of civil twilight (5:47 am) and...
For purposes of determining whether there was sufficient evidence that a burglary occurred at nighttime, the court took judicial notice of the time of civil twilight and the driving distance between the victim’s residence and an apartment where the defendant appeared at 6 am after having been...
There was sufficient evidence that a lawn chair was a deadly weapon for purposes of assault. The victim was knocked unconscious and suffered multiple facial fractures and injuries which required surgery; after surgery his jaw was wired shut for weeks and he missed 2-3 weeks of work; and at trial...
The court rejected the defendant’s argument that an officer’s discovery of drugs in his buttocks occurred during a separate, second search after a pat down was completed. The drugs were found during a valid pat down for weapons.