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N.C. Court of Appeals (July 2, 2024) – North Carolina Criminal Law

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on July 2, 2024. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

Defendant’s actions during attempted carjacking did not represent separate restraint or confinement to support kidnapping conviction.

State v. Andrews, COA23-675, ___ N.C. App. ___ (July 2, 2024). For more in-depth discussion of this case, see this post by Prof. Joseph Hyde.

In this Davie County case, defendant appealed his first-degree kidnapping with a firearm conviction, arguing error in denying his motion to dismiss for insufficient evidence. The Court of Appeals agreed, reversing defendant’s conviction.

In September of 2019, defendant was assisting an acquaintance in the search for her mother’s stolen car. The search resulted in defendant aggressively driving a van in pursuit of the victim, who was driving a similar vehicle to the stolen car. After a high-speed pursuit and several shots fired in the direction of the victim’s vehicle, the victim escaped and called law enforcement. Defendant came to trial for three offenses related to the pursuit, attempted robbery with a firearm, attempted discharge of a firearm into an occupied vehicle, and first-degree kidnapping with a firearm. The jury found him guilty of all three offenses.

Defendant argued in his motion to dismiss that the evidence was insufficient to support a finding of confinement or restraint to support the kidnapping charge. Agreeing with defendant, the Court of Appeals explained “because some degree of restraint or confinement is inherent in felonies such as robbery with a firearm, kidnapping charges can implicate double jeopardy concerns where the restraint is the basis for both the underlying felony and the kidnapping.” Slip Op. at 5. Here, “defendant’s pursuit of the victim’s vehicle was part of the ‘necessary restraint’ to accomplish defendant’s objective of taking the victim’s vehicle from the victim at gunpoint.” Id. at 8. As a result, the court could not find a “separate, complete restraint or confinement” in evidence to support the kidnapping conviction. Id. at 9.

Jury’s conviction of police officer for misdemeanor death by vehicle was not barred by G.S. 20-145 and not illogical under applicable standard.

State v. Barker, COA23-1090, ___ N.C. App. ___ (July 2, 2024). In this Mecklenburg County case, defendant appealed his conviction for misdemeanor death by motor vehicle, arguing that as a police officer he was exempt from speeding under G.S. 20-145 and that the prosecutor made improper statements during closing argument. The Court of Appeals found no error.

Defendant, a Charlotte-Mecklenburg Police Department officer, was driving at high speed early in the morning of July 8, 2017, when he struck and killed a pedestrian. The posted speed limit in the area was 35 miles per hour, and defendant was going approximately 100 miles per hour when he struck the pedestrian. Defendant was charged with involuntary manslaughter, and after a trial, the jury convicted him of the lesser-included offense of misdemeanor death by motor vehicle.

Taking up defendant’s argument regarding G.S. 20-145, the Court of Appeals explained that the statute exempted law enforcement officers from speed limitations when they were in the pursuit of a criminal suspect, unless the officer acts with reckless disregard for the safety of others. Defendant argued that it was “illogical for the jury to find that he was not culpably negligent (in acquitting him for involuntary manslaughter) but to also find that he did break a law (speeding) which necessarily requir[ed] (based on G.S. 20-145) that the jury [] find he acted with culpable/gross negligence in his speeding.” Slip Op. at 3. The court disagreed on the logical possibility, explaining that while the burden was on the State to prove culpable negligence for the manslaughter charge, the State needed only to prove that defendant was speeding to support the death by motor vehicle charge. The burden then shifted to defendant to assert the affirmative defense “that he was not acting with gross negligence while he was speeding.” Id. at 7. Reviewing under the plain error standard the court found no error and no merit in various other arguments raised by defendant based on the same reasoning.

Defendant also argued that the prosecutor asked the jurors to place themselves in the victim’s shoes, which the court explained was improper under applicable Supreme Court precedent. However, here the court did not agree that the arguments were improper, and instead held that they were trying to illustrate the victim “was a typical citizen like the jurors.” Id. at 10.

Defendant’s admission of sexual contact with a minor was voluntarily given; seizure of cellphones was justified by consent search and exigent circumstances exceptions to warrant requirement.

State v. Duran-Rivas, COA23-743, ___ N.C. App. ___ (July 2, 2024). In this New Hanover County case, defendant appealed his convictions for statutory rape of a child by an adult, statutory sexual offense with a child by an adult, taking an indecent liberty with a child, first-degree sexual exploitation of a minor, and third-degree sexual exploitation of a minor, arguing error in denying his motion to suppress statements and cellphone evidence obtained by sheriff’s deputies during an interview. The Court of Appeals found no error.

Defendant was pulled over in May of 2018 for speeding, and the officer recognized defendant’s vehicle from a BOLO issued regarding allegations of child sexual abuse. Defendant spoke primarily Spanish, and the officers used a translation app to assist communication. After the traffic stop, a detective from the sheriff’s office asked defendant to participate in a voluntary interview; defendant agreed and drove himself to the New Hanover County Sheriff’s Office. Defendant initially answered questions from detectives, one of whom spoke and understood Spanish. Defendant admitted he had touched the victim in a sexual manner. The detectives then informed defendant of his Miranda rights, providing a written copy in Spanish and obtaining a Spanish translator to inform him of his rights, and he chose to continue with the interview without an attorney, answering questions and eventually writing a letter apologizing to the victim. The cellphone in defendant’s possession was seized, along with another cellphone that defendant’s ex-wife had provided to the sheriff’s office, and after the detective obtained a search warrant for the phones he discovered videos showing an adult male sexually penetrating a female child. Prior to trial, defendant filed a motion to suppress the results of the interview and search of his phones, and the motion was denied. Subsequently the jury found defendant guilty of all charges.

Considering defendant’s arguments, the Court of Appeals first considered whether defendant’s statements were given voluntarily, noting that defendant was informed multiple times that the interview was voluntary, that he was free to leave, and that defendant was not kept in a locked room or handcuffed. The court held that “Defendant was not in custody when he first voluntarily admitted he had inappropriately touched the victim[, and his] subsequent oral and written statements providing further details regarding Defendant’s actions were made after the proper administration of Miranda warnings and without a request for counsel.” Slip Op. at 12.

The court then moved to the cellphone seizure, explaining that the “consent searches” exception applied to the phone defendant’s ex-wife gave to deputies, as she had common control over the phone because defendant gave it to their son to use for watching videos. Id. at 13. The seizure of the phone in defendant’s possession was likewise justified by the “exigent circumstances” of preventing defendant from destroying evidence, as defendant had permitted a detective to look through his phone until he reached the deleted files section, when defendant tried to pull the phone away from the detective. Id. at 15. This suggested defendant was attempting to conceal and permanently delete relevant evidence, justifying the warrantless seizure of the second phone.

Indictment for obtaining property by false pretenses properly alleged element of intent; State’s evidence provided sufficient circumstantial evidence of intent beyond nonfulfillment of contract.

State v. Horton, COA 24-29, ___ N.C. App. ___ (July 2, 2024). In this Duplin County case, defendant appealed his conviction for obtaining property by false pretenses, arguing the indictment was insufficient and the trial court erred by denying his motion to dismiss for insufficient evidence. The Court of Appeals disagreed, finding no error.

In June of 2020, the victim paid defendant $4,000 to complete construction work on the victim’s home. Defendant failed to complete the work, providing excuses for the delay at first, then failing to answer the victim’s phone calls. The Duplin County Sheriff’s Office investigated the matter and told defendant to return the money; defendant agreed to return the money in September 2020, but never did so. Defendant was subsequently indicted for failing to work after being paid and obtaining property by false pretenses, and the jury found him guilty of both charges.

On appeal, defendant argued that the trial court lacked jurisdiction as the indictment was insufficient to charge him with obtaining property by false pretenses under G.S. 14-100 as it failed to allege the essential element of intent. The Court of Appeals noted the recent decisions State v. Singleton and State v. Stewart establishing the appropriate test for a constitutional or statutory defect, and turned to the language of G.S. 14-100 to determine if the indictment contained the essential elements of the offense. Relevant to this inquiry, the language of G.S. 14-100(b) dictates that “evidence of nonfulfillment of a contract, without more, cannot establish the essential element of intent.” However, the court explained that this subsection did not “relate[] to what is required in an indictment” but instead “relates to the sufficiency of the State’s evidence offered to prove intent at trial, not the facts to be asserted in the indictment.” Slip Op. at 6-7. Combined with the fact that an indictment for obtaining property by false pretenses “need only allege the defendant acted with the intent to defraud,” not allege all the evidence supporting that intent, the court concluded that the indictment here was sufficient. Id. at 7.

Moving to defendant’s argument that the evidence was insufficient to prove intent, the court acknowledged G.S. 14-100(b)’s requirement that nonfulfillment of the contract was not sufficient. The court noted that circumstantial evidence, including Rule of Evidence 404(b) evidence of defendant’s scheme, supported a finding of intent in the current case. The court looked to defendant’s behavior after being paid, including the fact that he never ordered the materials from the local supply store, but used the store’s delay as an excuse, and the testimony of another member of the community that he also paid defendant for work that was never done. This evidence led the court to hold that the State offered substantial evidence of defendant’s intent.

Defendant’s plea agreement covering multiple charges in two counties did not prevent trial court finding him as a recidivist because charges were not joined for trial.

State v. Walston, COA24-58, ___ N.C. App. ___ (July 2, 2024). In this Wayne County case, defendant appealed his convictions for two counts of indecent liberties with a child, arguing error in finding that he was a recidivist. The Court of Appeals determined that defendant’s claims were meritless or procedurally barred and dismissed for lack of appellate jurisdiction.

Defendant entered into a plea agreement where he agreed to plead guilty based on allegations made against him in Duplin and Wayne Counties. In Duplin County, defendant pleaded guilty to two counts of first-degree statutory sexual offense in April 2020. In Wayne County, defendant pleaded guilty to the two indecent liberties charges giving rise to the current case in July 2023. When sentencing defendant in Wayne County, the trial court found that defendant qualified as a recidivist based on his prior Duplin County convictions and ordered him to register as a sex offender for life. Defendant filed a notice of appeal for the “Judicial Findings and Order for Sex Offenders” but did not appeal the underlying judgment. Subsequently, defendant filed a petition for writ of certiorari with the Court of Appeals.

The core of defendant’s argument was that the Duplin County charges for sexual offense were “joined in the same plea agreement” with the Wayne County charges for indecent liberties, and thus “should be treated in the same way as charges that are joined for trial.” Slip Op. at 3. Looking through applicable precedent, the court quickly dispensed with defendant’s argument, noting the cases cited by defendant were “readily distinguishable from the present case because the Duplin County charges and Wayne County charges were not joined for trial.” Id. at 5. The court explained that it was irrelevant that defendant entered a plea agreement for all the charges at the same time because defendant “was convicted and sentenced at different times for two separate sets of qualifying offenses.” Id. at 5-6. The court thus declined to grant the petition for lack of merit and dismissed defendant’s appeal.

The court also briefly considered defendant’s argument that his due process rights were infringed by the recidivist determination, explaining that defendant did not raise this argument in front of the trial court and that the court declined to invoke Rule of Appellate Procedure 2 to consider it.

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