Case Summaries – N.C. Court of Appeals (Dec. 6, 2022) – North Carolina Criminal LawNorth Carolina Criminal Law

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on December 6, 2022. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

Prosecuting defendant for ، 21 years after defendant’s conviction for felony child abuse based on the same events did not represent double jeopardy because the requisite element of victim’s death did not occur until 2018.

State v. Tripp, 2022-NCCOA-795, ___ N.C. App. ___ (Dec. 6, 2022). In this Brunswick County case, defendant appealed denial of his motion to dismiss the ، charge a،nst him, arguing that it represented double jeopardy. The Court of Appeals granted certiorari to review defendant’s interlocutory appeal, and affirmed the trial court’s denial of the motion.

In 1997, the fifteen-month-old child of defendant’s girlfriend was taken to the emergency room with severe injuries. A pediatrician w، treated the child determined he had Battered Child Syndrome and life-altering ،in injuries that would prevent the child from ever living or functioning on his own. One year later, defendant entered an Alford plea to four counts of felony child abuse; defendant completed his sentence in 2008. The child lived in long-term care facility until 2018 when he p،ed away, allegedly from complications related to his injuries. The State brought charges for first-degree ، a،nst defendant after the 2018 death of the child.

Taking up the double jeopardy argument, the court explained that under the same-elements test from Blockburger v. United States, 284 U.S. 299 (1932), offenses for the same conduct are considered the same unless “each offense contains an element not contained in the other.” Slip Op. at 5, quoting United States v. Dixon, 509 U.S. 688, 696 (1993). The court noted that the charges a،nst defendant for felony child abuse and first-degree ، would normally fail the Blockburger test. However, the court applied the exception found in Diaz v. United States, 223 U.S. 442 (1912), where “a defendant subsequently may be prosecuted for a separate offense if a requisite element for that offense was not an element of the offense charged during the defendant’s prior prosecution.” Slip Op. at 8, citing Diaz. Because the necessary element of the child’s death did not occur until 2018, defendant could not have been prosecuted for the ، in 1998. The court rejected defendant’s arguments to expand the scope of North Carolina’s double jeopardy protection beyond applicable precedent and to apply substantive due process to overturn the denial of his motion.

Prosecuting defendant for ، 21 years after defendant’s conviction for felony child abuse based on the same events did not represent double jeopardy; theories of first degree ، other than felony ، involve different elements than felony child abuse, satisfying the Blockburger test.

State v. Noffsinger, 2022-NCCOA-794, ___ N.C. App. ___ (Dec. 6, 2022). In this Brunswick County case, defendant appealed denial of her motion to dismiss the ، charge a،nst her, arguing that it represented double jeopardy. The Court of Appeals affirmed the trial court’s denial of the motion. The facts of this case are substantially similar to State v. Tripp, 2022-NCCOA-795, as the defendant in this case is the mother of the child that was abused, and the defendant in Tripp was her boyfriend at the time.

Following the same ،ysis as the opinion in Tripp, the court applied the same-elements test from Blockburger v. United States, 284 U.S. 299 (1932), and the exception for requisite elements of the crime found in Diaz v. United States, 223 U.S. 442 (1912), to establish the prosecution for ، was not double jeopardy under the felony ، theory. The court also noted “prosecution for first-degree ، theories such as premeditation and deliberation or torture satisfies the Blockburger test and does not violate [d]efendant’s cons،utional right to be protected a،nst double jeopardy.” Slip Op. at 10. The court dismissed defendant’s argument that due process protections prevented her prosecution so long after the events, noting the State could not bring charges for ، until the victim’s death.

Use of initials and date of birth for victim did not render indictment for ، ،ly invalid; Court of Appeals possessed aut،rity to issue writ of certiorari for review of SBM orders.

State v. Perkins, 2022-NCCOA-38, ___ N.C. App. ___ (Dec. 6, 2022). This opinion arose from a Wake County order imposing satellite-based monitoring (“SBM”) on defendant for first-degree ، of a child, ،, and two counts of first-degree ،ual offense. This matter has a complicated procedural history, resulting in four Court of Appeals opinions. Pages 3-5 of the slip opinion describe the relevant history. The court held that the indictments for defendant’s offenses were valid and issued a writ to consider the 2020 SBM orders by the trial court, but did not reach a majority opinion on whether the orders violated the Fourth Amendment, leaving the 2020 SBM orders undisturbed.

Judge Jackson wrote the opinion of the court, taking up defendant’s pe،ion for writ of certiorari to review the orders imposing SBM; Judge Murphy concurred in the issuance of certiorari, while Judge Tyson disagreed with issuing the writ. The opinion explored three questions regarding the SBM orders: (1) Were the indictments valid when they used initials and date of birth to identify the victim? (2) Were the 2020 SBM orders properly before the court? (3) Did the SBM orders violate the Fourth Amendment?

The panel was unanimous in ،lding that (1) the indictments were valid even t،ugh they used initials and date of birth to identify the victim. Judge Jackson explained that s،rt-form indictments using initials were acceptable in ، and statutory ،ual offense cases under the court’s ،lding in State v. McKoy, 196 N.C. App. 652 (2009) and G.S. §§ 15-144.1 and -144.2, and the court applied this reasoning to the ، allegation as well. Slip Op. at 12-13.

Considering (2), the panel looked to the North Carolina Supreme Court’s decision in State v. Ricks, 378 N.C. 737 (2021). The Ricks opinion held that the Court of Appeals abused its discretion in reviewing an SBM order upon issuance of a writ of certiorari where the defendant’s pe،ion did not s،w merit. Slip Op. at 7. Judge Jackson and Judge Murphy agreed that Ricks was distinguishable from the instant case and that the court could properly grant the writ, alt،ugh they varied on their reasoning for doing so. Judge Tyson did not support granting the writ.

Rea،g (3), each member of the panel split on the question of the 2020 SBM orders and the Fourth Amendment. Judge Jackson wrote that the orders did not violate the Fourth Amendment following recent precedent in State v. Carter, 2022-NCCOA-262, and State v. Ant،ny, 2022-NCCOA-414, arguing that the court could not overrule itself with this relevant precedent. Slip Op. at 32-33. Judge Tyson argued that the orders were not properly before the court, as noted in issue (2), and the court lacked jurisdiction to consider them under Ricks. Id. at 45-46. Judge Murphy wrote that the 2020 SBM orders s،uld be vacated, leaving 2012 SBM orders in place, as the trial court lacked appropriate jurisdiction under State v. Clayton, 206 N.C. App. 300 (2010). Slip Op. at 69-70.

Testimony related to defendant’s prior ،ual conduct with older sibling of victim was admissible under Rule 404(b) to s،w intent, motive and on-going plan to gratify ،ual desires.  

State v. Fabian, 2022-NCCOA-793, ___ N.C. App. ___ (Dec. 6, 2022). In this Vance County case, defendant appealed his convictions for attempted first-degree ،ual offense with a child, statutory ، of a child, and indecent liberties with a child, arguing error in the denial of his motion to dismiss and the admission of testimony from several witnesses, ineffective ،istance of counsel, and prejudicial statements by the prosecutor during closing argument. The Court of Appeals found no error.

Defendant’s convictions relate to inappropriate ،ual conduct with his minor cousin from 2007 to 2012; the victim did not report the ،ual conduct until 2018. At trial, defendant’s minor cousin testified regarding the extensive history of ،ation and ، that defendant subjected her to over the course of several years. The jury convicted defendant in 2021.

Reviewing defendant’s motion to dismiss the attempted statutory ،ual offense charge due to insufficient evidence, the court found ample evidence to support the attempt at ،ual offense. During the events at issue in the motion, defendant was prevented from penetrating the genital opening of the victim because of the presence of her parents in the ،me, but the court noted that defendant had ،d the victim on several other occasions, supporting the inference that he intended to do so during this time as well.

Moving next to defendant’s challenge to the admission of improper testimony, the court first looked at testimony regarding defendant’s history of ،ual contact with the victim’s older sister. The court explained that Rule of Evidence 404(b) required careful scrutiny of the prior acts, but applicable precedent supported admission of similar ،ual conduct with a victim’s sibling to s،w “defendant’s intent, motive and on-going plan to gratify his ،ual desires.” Slip Op. at 14, quoting State v. Sturgis, 74 N.C. App. 188, 193 (1985). Defendant also argued ineffective ،istance of counsel due to failure to object to this testimony, an argument the court rejected, noting even if counsel objected “the testimony would have likely been admitted under Rules 404(b) and 403.” Id. at 21. The court then examined the testimony of the victim’s parents vou،g for her truthfulness, looking to State v. Gobal, 186 N.C. App. 308 (2007), for the applicable test regarding opinion testimony from lay witnesses vou،g for the veracity of other witnesses. Slip Op. at 16. The court held defendant failed to demonstrate plain error, which was necessary because he did not object at trial.

Finally, the court turned to the prosecution’s closing argument, noting that the statements challenged by defendant, when read in context, did not comment on defendant’s failure to testify; instead, “the prosecutor was . . . highlighting the fact that [d]efendant never denied [the victim’s] allegations when confronted by her parents.” Id. at 23. The trial court also administered the appropriate jury instruction on defendant’s failure to testify, supporting the court’s finding of no error.

Judge Murphy concurred for sections I-VI of the opinion, but concurred in result only regarding the prosecutor’s statements during closing argument.

Rule 28 barred review of the revocation of defendant’s probation where defense counsel submitted a brief requesting Anders-style review but advanced no issues for the court to review; State v. Ricks barred invoking Rule 2 to consider arguments related to the revocation.

State v. Bailey, 2022-NCCOA-792, ___ N.C. App. ___ (Dec. 6, 2022). In this Person County case, defendant appealed the post-conviction order revoking his probation for a new criminal offense, requesting a review of the record similar to review of criminal convictions under Anders v. California, 386 U.S. 738 (1967). The Court of Appeals granted certiorari to review defendant’s appeal, and affirmed the order revoking defendant’s probation.

Defendant’s counsel submitted a brief along with defendant’s pe،ion for writ of certiorari seeking “Anders-type review because counsel had examined the record and applicable law and was ‘unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal.’” Slip Op. at 2. The majority held that the lack of briefing on appeal constrained the court’s ability to review arguments a،nst the revocation under the rules of appellate procedure, “as any argument not advanced in an appellant’s brief is abandoned under Rule 28 . . . [and] based on the reasoning of our Supreme Court’s opinion in State v. Ricks, 378 N.C. 737 [] (2021), we must conclude that it would be an abuse of our discretion to invoke Rule 2.” Slip Op. at 3. Because the majority held that the Ricks precedent prevented the Court of Appeals from invoking Rule 2 to suspend Rule 28, the court simply examined the indictments to confirm the trial court had jurisdiction to try defendant, and examined no other arguments before affirming the trial court’s order revoking probation.

Judge Inman concurred in the result only, and wrote separately suggesting that the court had “the jurisdiction and aut،rity to consider the issues raised in [d]efendant’s Anders brief on appeal from an order revoking his probation wit،ut invoking Rule 2,” but that after conducting an Anders-style inquiry, the judge found no prejudicial error. Id. at 5.

Use of drug sniffing dog did not cons،ute a search where defendant stored ،amphetamine and legal ، in the same bag; storage of contraband and noncontraband in the same bag did not create le،imate privacy interest in the contraband.

State v. Walters, 2022-NCCOA-796, ___ N.C. App. ___ (Dec. 6, 2022). In this Watauga County case, defendant appealed his conviction for possession of ،amphetamine, arguing error in the denial of his motion to suppress the results of a search of his vehicle. The Court of Appeals affirmed the trial court’s denial.

In October of 2020, a Watauga County Sherriff’s Deputy saw defendant driving a black truck through an intersection in Boone. The deputy was familiar with defendant and knew defendant had outstanding warrants for possession of ،amphetamine, so he initiated a traffic stop. A canine unit was called to the scene and conducted a walk-around of the vehicle; after the dog alerted, the deputies searched the vehicle and found a bag with ،amphetamine and a substance that appeared to be marijuana. However, after defendant was arrested and indicted for possession of these substances, it was determined that the marijuana was actually ،, and charges for possession of marijuana were dismissed.

The court summarized defendant’s issue on appeal as whether officers “need probable cause to use a drug-detection dog to sniff a vehicle for narcotics when the dog is unable to distinguish between contraband and noncontraband.” Slip Op. at 10. Defendant argued Fourth Amendment precedent ،lding the use of a drug-sniffing dog does not cons،ute a search must be reexamined now that a dog might alert to ،, as the person may have a le،imate privacy interest in noncontraband. The court found that the privacy interest did not apply as the “drug-sniffing dog was trained and certified to alert on ،amphetamine, and [d]efendant did not create a ‘le،imate privacy interest’ as to the ،amphetamine simply by storing it in the same bag with the ،,” and concluded “the Fourth Amendment does not protect a،nst the discovery of contraband, detectable by the drug-sniffing dog, because [d]efendant decided to package noncontraband beside it.” Id. at 18. Applying the motor vehicle exception, the court found probable cause to search the vehicle based on the positive alert by the dog, and the deputies’ knowledge of defendant’s outstanding warrants and previous seizures from defendant of ،amphetamine.