This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on November 21, 2023. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

Probation violation report contained sufficient allegations to prepare defendant for possible revocation at hearing; evidence supported finding that defendant committed new offense of exploitation of a minor.

State v. Bowman, COA23-384, ___ N.C. App. ___ (Nov. 21, 2023). In this Forsyth County case, defendant appealed the revocation of his probation, arguing (1) he did not receive notice that his probation could be revoked at the hearing, and (2) that the State did not prove he committed a new criminal offense. The Court of Appeals disagreed, finding no error.

While on probation for 15 counts of third-degree exploitation of a minor, defendant admitted to looking at child abusive materials during a group therapy session. This led to an investigation by defendant’s probation officer; defendant eventually admitted to looking at child pornography on his girlfriend’s phone. The probation officer filed a report, and the matter came for a hearing in September 2022, where defendant’s probation was revoked and his sentence was activated.

Taking up (1), the Court of Appeals rejected defendant’s argument that he was not given adequate notice that his probation could be revoked at the hearing. Here, the report filed by defendant’s probation officer described conduct that could be criminal, specifically viewing child pornography. Although the report did not explicitly allege defendant violated probation by committing this criminal offense, the court explained that “[t]he Report’s description of Defendant’s alleged behavior was sufficient to give Defendant notice of possible probation revocation.” Slip Op. at 8.

Considering (2), the court explained that while the trial court did not explicitly reference the new crime that defendant committed (third-degree exploitation of a minor), the evidence admitted at the hearing was sufficient to support the trial court’s determination that defendant committed the offense when revoking his probation. The court noted that defendant’s admissions, along with the evidence gathered from his girlfriend’s phone, were sufficient to support the conclusion that defendant “possessed material containing a visual representation of a minor engaging in sexual activity and committed third-degree exploitation of a minor.” Id. at 11.

Judge Collins concurred in the result only.

(1) Defense counsel’s blindness did not justify granting defendant’s motion for new counsel; (2) prosecutor’s inappropriate cross-examination was not plain error; (3) failure to provide instruction on lesser-included offense of robbery was plain error justifying new trial.

State v. Hamilton, COA22-847, ___ N.C. App. ___ (Nov. 21, 2023). In this Davidson County case, defendant appealed his convictions for two counts of robbery with a dangerous weapon, arguing error in (1) denying his motion for new counsel because his appointed attorney was blind, (2) failing to intervene ex mero motu during his cross examination, and (3) failing to instruct the jury on the lesser-included offense of common-law robbery for defendant’s second count. The Court of Appeals found no error with (1) or (2), but found plain error in (3), vacating the second count of robbery and remanding for a new trial.

In December of 2016, defendant and an associate entered a gaming business and proceeded to rob the business, the manager on duty, and a patron. Defendant pulled a firearm and pointed it at the manager, demanding money, while his associate, who did not have a firearm, demanded money from the patron. When the matter came for trial in May 2022, defendant requested new appointed counsel because his attorney was blind. The trial court denied the motion and defendant proceeded with his appointed counsel. During the State’s cross-examination of defendant, the prosecutor repeatedly questioned defendant about exchanges he had with the court outside the presence of the jury, including profanity and accusations of racism, while defense counsel did not object to the questioning. At the conclusion of trial, defendant did not request an instruction on the lesser-included offense of common law robbery.

Considering (1), the Court of Appeals first explained the two-part test for whether to grant new appointed counsel from State v. Thacker, 301 N.C. 348 (1980), and grappled with State v. Jones, 357 N.C. 409 (2003), ultimately determining that it would “purely review the trial court’s denial of Defendant’s motion for new counsel for abuse of discretion.” Slip Op. at 7. Noting that the only issue identified by defendant was that his counsel was blind, the court concluded “[d]efendant’s counsel is licensed to practice law in this state, and we cannot say the trial court abused its discretion by failing to replace him because of an immutable physical condition—a physical condition that is not limited to this case.” Id. at 9.

Moving to (2), the court noted that it agreed with defendant that “the State’s cross-examination of him was inappropriate,” but that the issues did not rise to plain error. Id. at 10. Because ample evidence supported defendant’s guilt, including video and eyewitness testimony, the court could not conclude that the failure to intervene impacted the jury’s findings of guilt or the fairness of the trial.

Finally, in (3), the court agreed with defendant, explaining that “a rational jury could have reasonably inferred that neither Defendant nor [his associate] used a dangerous weapon to threaten [the patron].” Id. at 15. Because this meant that a rational jury could have convicted defendant for common-law robbery instead of robbery with a dangerous weapon, the failure to provide an instruction for the lesser included charge was plain error, and this error justified a new trial on the second count of robbery.

(1) Failure to hold pretrial release hearing was not flagrant violation of defendant’s constitutional rights; (2) there was a distinct separation between defendant’s assaults; (3) defendant’s acts of confining and removing the victim justified his kidnapping conviction.

State v. Tucker, COA22-865, ___ N.C. App. ___ (Nov. 21, 2023). In this Durham County case, defendant appealed his convictions for first-degree kidnapping, three counts of assault, and interfering with emergency communications, arguing (1) he was prejudiced by not receiving a pretrial release hearing under G.S. 15A-534.1, (2) double jeopardy for his multiple assault convictions, (3) his conviction for assault by strangulation was improper, and (4) insufficient evidence to support his kidnapping conviction. The Court of Appeals found no prejudicial error.

In January of 2020, defendant and a woman he was living with began arguing, culminating in defendant headbutting the woman several times. Eventually defendant began beating the woman and dragged her by her hair, then throwing her and choking her in the bedroom. The woman eventually hid her child in a closet and jumped out of a window on the third floor to escape defendant. The woman’s mother attempted to intervene but defendant struck her in the mouth, busting the mother’s lip. Defendant also took the mother’s phone and threw it away, but she retrieved it to call police. After defendant was arrested, the magistrate did not set bond on his kidnapping charge, determining it to be a domestic violence act, and ordered the State to produce defendant for a hearing on conditions of pretrial release. The State did not comply with this order, and defendant remained in custody, not posing bond on any of the charges. After remaining in custody from March to September of 2020, defendant filed a motion to dismiss his kidnapping charge, arguing G.S. 15A-534.1 required dismissal. Defendant’s charges were consolidated the next day with pretrial release conditions and a bond of $250,000; defendant did not post bond and remained in custody. The trial court also denied defendant’s motion to dismiss. Defendant reached trial in November 2021, and was convicted after a bench trial, receiving credit for time served.

Considering (1), the Court of Appeals noted that the State admitted it did not hold the pretrial release hearing but explained the failure as inadvertent due to the onset of COVID-19. Analyzing the impact, the court explained “[t]he inadvertence does not excuse the State; rather, it is relevant to show the absence of a flagrant constitutional violation.” Slip Op. at 11. The court also noted defendant did not post bond after his initial arrest, and “even if the State had held a timely pretrial release hearing on the kidnapping charge, Defendant would not have been released.” Id. at 11. As a result, defendant could not show irreparable prejudice to the preparation of his case.

Next the court considered (2), as defendant argued the events constituted one long assault. The court disagreed, explaining there was an “interruption in the momentum” and “a change in location” between the events of the three assaults. Id. at 14-15. The court held each offense was separate and distinct, and found no merit in defendant’s argument. The court applied the same analysis for (3), pointing to “a distinct interruption in the assaults” to justify defendant’s convictions for assault inflicting serious bodily injury as well as assault by strangulation. Id. at 16.

Finally, the court took up (4), noting that defendant’s acts of confining and removing the victim represented separate and distinct acts from the underlying assaults, justifying the kidnapping charge. The court explained that “Defendant’s confinement of [the victim] by pulling her by the hair back into the bedroom, confining her in there by kicking at the locked door, and forcing her to escape by jumping from the third floor window, were separate, complete acts apart from Defendant’s other assaults upon her.” Id. at 19.

Trial court properly instructed jury that knife was a deadly weapon, and properly declined to provide instruction on lesser-included offense of assault inflicting serious injury.

State v. Webster, COA23-68, ___ N.C. App. ___ (Nov. 21, 2023). In this Forsyth County case, defendant appealed her conviction for assault with a deadly weapon inflicting serious injury, arguing error in (1) instructing the jury that the knife was a deadly weapon per se, and (2) declining to instruct the jury on the lesser-included offense of misdemeanor assault inflicting serious injury. The Court of Appeals found no error.

At a Father’s Day cookout in 2021, defendant and the victim, a woman who was serving macaroni and cheese, began to argue. Over the course of the day, the two had several confrontations about whether defendant was entitled to be served any of the macaroni and cheese. The confrontations led to a fight, where defendant slashed the victim several times with a small pocketknife, causing injuries to her face, arms, and torso. At trial, defense counsel requested that the jury be instructed on lesser included offenses and that the knife did not constitute a per se deadly weapon, but the trial court overruled this request and did not instruct on lesser included offenses.

Reviewing (1), the Court of Appeals noted that the knife in question was not admitted into evidence at trial. Defendant argued that without the knife in evidence and without testimony of its character and appearance, it was improper to instruct the jury that it was a deadly weapon. The court disagreed, explaining “although the State bears the burden of proving, inter alia, the use of a deadly weapon, the State is not required to produce the alleged weapon to obtain a conviction for an assault involving a deadly weapon.” Slip Op. at 12. The court also disagreed with defendant about the evidence of the knife, as body-cam footage of defendant describing the knife was in the record, as well as evidence of the injuries sustained by the victim. After determining the trial court properly instructed the jury that the knife was a deadly weapon, the court concluded that (2) was also properly decided, explaining that the State’s evidence supported every element of the crime charged and “there was no conflicting evidence relating to any element of the charged crime.” Id. at 15 (cleaned up).

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