N.C. Court of Appeals (Jan. 16, 2024) – North Carolina Criminal Law

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on January 16, 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 restraint of victim was separate from rape and supported kidnapping conviction; expert testimony regarding sexual assault examination did not violate Confrontation Clause.

State v. Ball, COA 22-1029, ___ N.C. App. ___ (Jan. 16, 2024). In this Macon County case, defendant appealed his convictions for forcible rape, kidnapping, burglary, assault on a female, and interfering with an emergency communication, arguing error in (1) denying his motion to dismiss the kidnapping charge, (2) allowing expert testimony about a sexual assault nurse examination (“SANE”) from a nurse who did not conduct the examination, and (3) failing to intervene ex mero motu in response to the prosecutor’s statements during closing argument. The Court of Appeals found no error.

In May of 2019, defendant appeared at the door of the victim’s home, telling her that his car was stuck in a ditch and he needed a place to stay for the night. Defendant was known to the victim through previous employment, and she offered her guesthouse to defendant for the night. According to the victim’s testimony, defendant then reappeared at her door asking for a cigarette lighter, barged in when she opened the door, and raped her on her bed. The victim eventually escaped and found officers from the sheriff’s department, who arrested defendant as he slept in the victim’s bed. The victim underwent a SANE the next morning. At trial, defendant moved to dismiss the kidnapping charge, arguing the State did not admit evidence he confined the victim separate from his alleged sexual assault; the trial court denied the motion. The State called a forensic nursing supervisor to testify regarding the SANE report, although she was not the nurse that performed the SANE. Defendant did not object to the nurse expert’s testimony, and he was subsequently convicted of all charges.

Finding no error in (1), the Court of Appeals explained that “[i]n rape cases, this Court has previously determined a separate charge of second-degree kidnapping requires a defendant’s restraint or confinement of the victim to be separate from that necessary to accomplish the rape.” Slip Op. at 10. The court found just such evidence here, noting that the struggle between defendant and the victim began as she fled from him at the door, then moved to the bedroom, where defendant restrained her on the bed prior to the sexual assault.

Moving to (2), the court first gave an overview of the applicable Confrontation Clause issues, noting “an expert witness may properly base her independent opinion ‘on tests performed by another person, if the tests are of the type reasonably relied upon by experts in the field,’ without violating the Confrontation Clause.” Id.at 15, quoting State v. Fair, 354 N.C. 131, 162 (2001). Here, the nurse expert’s qualifications were established, and she testified about her independent conclusions after reviewing the SANE, subject to cross-examination by defendant. The court found no error in admitting the SANE and expert testimony under these circumstances.

Finally, the court found no error in (3), explaining “the Prosecutor’s closing statements were consistent with the record, as his arguments highlighted the differences between Defendant’s statements to the police two days after the incident, which were properly admitted at trial, and Defendant’s own testimony during his trial.” Id. at 20. Because the prosecutor’s statements were simply a credibility argument against defendant’s testimony, the court did not find an error prejudicing defendant.

Analyst did not follow applicable DHHS regulations for observation period before administering Intoximeter test, but additional evidence supported defendant’s conviction.

State v. Forney, COA23-338, ___ N.C. App. ___ (Jan. 16, 2024). In this Buncombe County case, defendant appealed his convictions for driving while impaired, arguing error in denying his motion to exclude an Intoximeter chemical analysis as well as his subsequent objections to the admission of the analysis at trial. The Court of Appeals majority found error as the officer performing the analysis did not conduct an observation period after ordering defendant to remove gum from his mouth, but did not find that defendant was prejudiced by the error, upholding his conviction.

In March of 2021, an Asheville police officer observed defendant roll through a stop sign. The officer pulled over defendant, and observed the smell of alcohol, glassy eyes, and slurred speech. The office conducted field sobriety tests, determining that defendant was likely intoxicated. After defendant was arrested and taken to the Buncombe County Jail, a certified chemical analyst conducted a 15-minute observation period of defendant, followed by an Intoximeter breath analysis. After this first breath test, the analyst noted that defendant had gum in his mouth and had him spit it out, then conducted a second breath test two minutes after the first. Both tests resulted in 0.11 BAC readings. Both parties offered expert testimony about the possible effects of the gum, but no studies were admitted using the type of Intoximeter in question, and no evidence established the type of gum defendant had in his mouth at the time of the test.

Taking up defendant’s argument, the Court of Appeals first explained that G.S. 20-139.1(b)(1) makes breath tests admissible if they are “performed in accordance with the rules of the Department of Health and Human Services.” Slip Op. at 8. The applicable rules are found in 10A NCAC 41B.0101, which requires an observation period to ensure the person being tested does not ingest alcohol, vomit, or eat or drink other substances. The State argued that chewing gum did not represent “eating” for purposes of the rules, a position the court’s opinion rejected:

In sum, we believe the intent of both the legislature and DHHS in the provisions pertinent here is clear: to ensure that the chemical analysis of a subject’s breath is accurate in measuring BAC and not tainted by the presence of substances in the mouth during testing. And in our view, to adopt the State’s position that the observation period requirement is not violated when a subject “chews” something during the period would lead to absurd results and have bizarre consequences because it would mean, for example, that a subject could engage in the following activities not listed in 10A NCAC 41B.0106(6) moments before the taking of breath samples: chewing gum—presumably including nicotine gum—or tobacco or food that is spit out before swallowing, dipping snuff, sucking on a medicated throat lozenge or a hard candy, using an inhaler, and swallowing a pill.

Id. at 13. Despite finding that the test was improperly admitted, the court did not see prejudice for defendant, noting the overwhelming evidence of defendant’s performance on the field sobriety tests, his glassy eyes and slurred speech, and the smell of alcohol observed by the officer.

Judge Arrowood concurred in the result only.

Judge Wood concurred in the result only by separate opinion, and also would have held that the admission of the breath test results was not error. Id. at 19.

Indictment for CCE charge was fatally flawed because it did not specify the criminal acts committed; jury verdict was not fatally ambiguous as trafficking by possession or by transportation were both acts supporting conspiracy conviction.

State v. Guffey, COA22-1043, ___ N.C. App. ___ (Jan. 16, 2024). In this McDowell County case, defendant appealed his convictions for conspiracy to traffic in methamphetamine and aiding and abetting a continuing criminal enterprise (“CCE”), arguing (1) the CCE indictment was fatally flawed as it did not specify each of the acts committed under the CCE, and (2) the conspiracy verdict was fatally ambiguous, as it was impossible to determine if the jury unanimously found trafficking by possession or by transportation. The Court of Appeals majority agreed regarding (1), vacating defendant’s CCE conviction, but upheld the conspiracy to traffic methamphetamine conviction in (2).

Defendant was an admitted participant in a drug trafficking enterprise, but was not an organizer or employee of the principal operation, instead being a routine purchaser of drugs for resale. Considering (1), the Court of Appeals noted that G.S. 90-95.1 defines the offense of CCE, and that the federal crime in 21 U.S.C. § 848 has nearly identical wording. This led the court to consult applicable precedent in Richardson v. United States, 526 U.S. 813 (1999), for the idea that specificity of illegal conduct is essential in a CCE indictment. The court found no such specificity here, explaining:

The indictment does not allege that the enterprise engaged in any specific conduct, only defining the CCE as “a continuing series of violations of Article 5 of Chapter 90 of the General Statutes” and generally naming the participants and their positions in the trafficking scheme’s hierarchy.  A juror would have no way of knowing how many criminal acts were committed within the organization or how Defendant’s acts advanced them; while the indictment specifies that Defendant aided and abetted the CCE “by trafficking in methamphetamine[,]” it says nothing of why the enterprise with which Defendant dealt constituted a CCE.

Slip Op. at 8-9. This led the court to hold that “each underlying act alleged under N.C.G.S. § 90-95.1 constitutes an essential element of the offense” and that “a valid indictment under N.C.G.S. § 90-95.1 requires the state to specifically enumerate the acts alleged.” Id. at 9. Because the State did not do so in the current case, the indictment was fatally defective and the court vacated defendant’s CCE conviction.

Moving to (2), the court explained that the core of defendant’s argument was that failing to distinguish between trafficking by possession and by transportation rendered the jury’s verdict fatally ambiguous. The court drew a distinction between disjunctive jury instructions that (a) would allow a jury to find defendant guilty of any one of multiple underlying offenses, or (b) various alternative acts that establish elements of the single offense being charged. Here, the court found (b), as “[w]here a conspiracy charge disjunctively lists multiple offenses . . . each underlying offense does not create a separate conspiracy, but is instead an alternative act by which a Defendant may be found guilty of the singular conspiracy alleged.” Id. at 11. This led the court to find no fatal ambiguity for defendant’s conspiracy conviction.

Judge Stroud concurred in part and dissented in part by separate opinion, and would have found no fatal ambiguity (1), allowing the CCE conviction to stand. Id. at 13.

Officers’ search of defendant’s substance abuse recovery journals while looking for passwords or passcodes did not exceed the scope of search warrant.

State v. Hagaman, COA22-434, ___ N.C. App. ___ (Jan. 16, 2024). In this Watauga County case, defendant appealed after pleading guilty to indecent liberties with a child, arguing error in denying his motion to suppress the evidence obtained from a search of his notebooks. The Court of Appeals found no error and affirmed the trial court.

In May of 2018, officers from the Boone Police Department were investigating child pornography distribution when they discovered files uploaded to a sharing network from defendant’s IP address. The officers obtained a search warrant for defendant’s residence, and during a search of notebooks found at the home for passwords or passcodes related to the child pornography, the officers discovered a reference to a “hands-on sexual offense involving a minor.” Slip Op. at 4. Officers obtained additional search warrants and eventually defendant was indicted for additional counts of sexual exploitation of a minor and sexual offense. Defendant moved to suppress the evidence seized in excess of the scope of the initial search warrant, and to quash the subsequent search warrants. The trial court denied defendant’s motions and he pleaded guilty, reserving his right to appeal the order denying his motion to suppress and motion to quash.

Examining defendant’s motion to suppress, the Court of Appeals noted that defendant’s challenge was divided into two issues, (1) that many of the findings of fact were not actual findings or were not supported by competent evidence, and (2) that searching defendant’s notebooks went beyond the scope of the initial search warrant. While the court rejected the majority of defendant’s challenges to the findings of fact in (1), the court did agree several were not appropriately categorized, but explained that it would review them “under the appropriate standard depending on their actual classification, not the label given by the trial court.” Id. at 14.

After walking through defendant’s objections to the findings of fact, the court reached (2), whether the officers exceeded the scope of the search warrant by searching through defendant’s substance abuse recovery notebooks. Defendant argued “the agents were allowed to cursorily look in the notebook but immediately upon discovering it was a substance abuse journal, they should have looked no further, not even for passwords or passcodes.” Id. at 17. The court noted this would lead to the absurd result of requiring officers to trust the label or classification of a defendant’s records when performing a search, and rejected defendant’s argument.

Failure to observe Rules of Appellate Procedure led to sanction taxing costs of appeal against the State; additional circumstances beyond the odor of marijuana justified the search of defendant’s vehicle and personal belongings.

State v. Springs, COA23-9, ___ N.C. App. ___ (Jan. 16, 2024). In this Mecklenburg County case, the State appealed an order granting defendant’s motion to suppress evidence seized during a traffic stop. The Court of Appeals reversed the trial court’s order and remanded for additional proceedings.

In May of 2021, defendant was pulled over by a Charlotte-Mecklenburg Police officer due to suspicion of a fictitious tag. When the officer approached the vehicle, he noticed defendant was fumbling with his paperwork and seemed very nervous, and the officer noted the smell of marijuana in the car. After the officer determined defendant was driving on a revoked license, he asked defendant about the marijuana smell, and defendant denied smoking in the car, but said he had just retrieved the car from his friend and speculated that was the source of the smell. The officer asked defendant to step out of the car and defendant did so, bringing cigarettes, a cellphone, and a crown royal bag with him. The officer put the belongings on the seat and patted defendant down for weapons. Finding no weapons, the officer then searched a crown royal bag and found a green leafy substance along with a digital scale, baggies of white powder, and baggies of colorful pills. Defendant was indicted for Possession of Drug Paraphernalia, Trafficking in Drugs, and Possession with Intent to Sell or Deliver a Controlled Substance, and he filed a motion to suppress the evidence from the bag, arguing the officer did not have probable cause for the search. The trial court orally granted defendant’s motion, referencing State v. Parker, 277 N.C. App. 531 (2021), and explaining “I just think in the totality here and given the new world that we live in, that odor plus is the standard and we didn’t get the plus here.” Slip Op. at 4.

The Court of Appeals first reviewed its basis for appellate jurisdiction based on the State’s notice of appeal, explaining that the State’s appeal violated Rule of Appellate Procedure 4 by incorrectly identifying the motion to suppress as a “motion to dismiss,” failed to reference G.S. 15A-979(c) as support for its appeal of an interlocutory motion to suppress, and failed to include the statement of grounds for appellate review required by Rule of Appellate Procedure 28(b)(4). Id. at 6-7. Despite the defects with the State’s appeal, the majority determined that the appropriate outcome was to issue a writ of certiorari, but “given the substantial and gross violations of the Rules of Appellate Procedure, we tax the costs of this appeal to the State as a sanction.” Id. at 10.

After establishing jurisdiction for the appeal, the court turned to the issue of probable cause for the warrantless search of the vehicle and ultimately the crown royal bag. The court declined to consider whether the odor of marijuana alone justified the search, as “[i]n this case, however, as in Parker, the Officer had several reasons in addition to the odor of marijuana to support probable cause to search the vehicle and, consequently, the Crown Royal bag.” Id. at 13. The court pointed to (1) the “acknowledgement, if not an admission” that marijuana was smoked in the car, and that defendant did not assert that it was hemp, (2) defendant was driving with a fictitious tag, and (3) defendant was driving with an invalid license. Id. at 14. Then the court established that the officer also had probable cause to search the Crown Royal bag, quoting State v. Mitchell, 224 N.C. App. 171 (2012), to support that probable cause authorizes a search of “every part of the vehicle and its contents that may conceal the object of the search.” Id. at 15. Although defendant tried to remove the bag as he left the vehicle, the court explained that was “immaterial because the bag was in the car at the time of the stop.” Id. Because the totality of the circumstances supported the officer’s probable cause in searching the vehicle, the trial court’s order granting the motion to suppress was error.

Judge Murphy concurred in part and dissented in part by separate opinion, and would have found that the State did not adequately invoke the court’s jurisdiction. Id. at 17.

 

 

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