Case Summaries – N.C. Court of Appeals (September 7, 2021) – North Carolina Criminal LawNorth Carolina Criminal Law
This post summarizes published criminal decisions from the North Carolina Court of Appeals released on September 7, 2021. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present.
(1) The trial court did not err in denying the defendant’s request for a special jury instruction where the trial court’s instruction encompassed the substance of the law requested. (2) The trail court’s failure to find mitigating factors did not amount to prejudicial error. (3) The defendant did not show that the trial court considered irrelevant and improper matters in determining the severity of the sentence.
State v. Guerrero, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 7, 2021). The defendant was arrested for driving while impaired. At the jail, the defendant provided a breath sample, and his alcohol concentration was reported as 0.09. The defendant pled not guilty to impaired driving in district court. Following a bench trial, the judge found the defendant guilty of impaired driving and imposed a Level Five sentence pursuant to G.S. 20-179. The defendant gave notice of appeal in open court.
At trial in superior court, the judge denied the defendant’s request for a special jury instruction and instead delivered the pattern jury instruction for impaired driving. The jury found the defendant guilty of impaired driving. During sentencing, the defendant argued for three statutorily mandated mitigating factors, only one of which the judge ultimately found. The judge imposed a Level Five sentence and sentenced the defendant to 60 days in jail, suspended for 12 months of supervised probation and several special conditions of probation.
(1) On appeal, the defendant first argued that the trial court erred by denying the defendant’s request for a special jury instruction. The defendant claimed that the pattern jury instruction did not allow the jury an adequate opportunity to fully weigh the breath sample evidence. In rejecting this argument, the Court of Appeals held that the trial court’s instruction encompassed the substance of the law requested. The Court further found that the trial judge instructed the jurors that (1) they “are the sole judges of the weight to be given to any evidence”; (2) they “should weigh all the evidence in the case”; (3) they “should consider all the evidence”; and (4) “it is their duty to find the facts and to render a verdict reflecting the truth,” which signaled to the jury that they were free to analyze and weigh the effect of the breath sample evidence along with all the evidence presented during the trial. Slip op. at ¶ 13.
(2) The defendant next argued that the trial court erred by failing to find two statutory mitigating factors and that the error was prejudicial because he received supervised probation as part of his sentence. Under G.S. 20-179, Level Five is the minimum sentencing level that a defendant can statutorily receive for impaired driving, and a defendant may be placed on probation as part of a Level Five sentence. The Court of Appeals determined that the trial judge erred by failing to find one of the mitigating factors. However, the Court concluded that the defendant was not prejudiced because even if the trial judge had found the two additional mitigating factors, the judge could not have sentenced the defendant at a lower sentencing level under the impaired driving statutes.
(3) The defendant’s final argument was that the trial court erred by sentencing the defendant more harshly because the defendant exercised his right to a trial by jury. In rejecting this argument, the Court of Appeals concluded that the defendant’s punishment fit within the statutory limit and the defendant did not overcome the “presumption of regularity” by showing that “the court considered irrelevant and improper matters in determining the severity of the sentence.” Slip op. at ¶ 27. The defendant also argued that the trial judge relied on uncharged criminal conduct not found by the jury because the defendant was asked about his marijuana use. The Court of Appeals declined to consider this argument because the defendant did not assert his Fifth Amendment privilege or object at trial and thus waived the argument for appeal.
The superior court lacked jurisdiction to hear the defendant’s appeal where the defendant waived his revocation hearing.
State v. Flanagan, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 7, 2021). On July 19, August 24, and October 23, 2018, the defendant plead guilty to several charges. On each of these dates, the trial court suspended the sentences for twelve months of supervised probation and other special conditions of probation.
Between December 7, 2018 and November 22, 2019, the defendant engaged in numerous acts which prompted his probation officer to file violation reports. On December 2, 2019, the defendant appeared in district court for a hearing on the January 18, 2019 and April 4, 2019 violation reports. While in district court, the defendant waived his violation hearing and admitted he violated the conditions of his probation. The district court revoked the defendant’s probation and activated the sentences in his misdemeanor cases. The defendant gave notice of appeal to the superior court.
On December 23, 2019, the probation officer filed violation reports in superior court. At a February 5, 2020 hearing, the defendant admitted to willfully violating his probation. The superior court revoked the defendant’s probation and activated his suspended sentences in his remaining misdemeanor and felony cases. The defendant appealed.
The Court of Appeals held that the superior court did not have jurisdiction to hear the defendant’s appeal from district court. In reaching this conclusion, the Court cited G.S. 15A-1347(b), which states “If a defendant waives a revocation hearing, the finding of a violation of probation, activation of sentence, or imposition of special probation may not be appealed to the superior court.” The Court vacated the judgment of the superior court and reinstated the judgment of the district court.
The trial court did not err in denying the defendant’s motion to dismiss because the evidence at trial conformed to the allegations in the indictment as to the essential elements of the crime.
State v. Tarlton, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 7, 2021). A confidential informant called the local police department, describing the defendant’s appearance and stating that the defendant would be at a certain location with a significant amount of methamphetamine in his bookbag. When the officers arrived at the scene, they found the defendant, matching the description, and sitting down with a bag and a knife. The officers asked the defendant if he had anything on him, to which the defendant responded he had marijuana in his pocket. After the officers retrieved the marijuana, the bag, and the knife, the defendant ran and was quickly apprehended by the officers.
At trial, the defendant stipulated that his book bag contained methamphetamine and heroin. The defendant moved to dismiss at the close of the State’s evidence and again at the close of all evidence, both of which were denied. The defendant was found guilty of possession with intent to sell and deliver methamphetamine, possession of heroin, misdemeanor possession of marijuana, possession of drug paraphernalia, resisting a public officer, and attaining habitual felon status.
On appeal, the defendant argued that the trial court erred when it denied his motion to dismiss the charge for resisting a public officer because there was a fatal variance between the indictment allegation and the evidence. Specifically, the indictment alleged that at the time of the defendant’s resistance, the detective was “attempting to take the defendant into custody for processing narcotics” but the evidence at trial only showed that the defendant ran from officers, including the detective, after a small amount of marijuana was seized from his person. Slip op. at ¶ 14. In rejecting the defendant’s argument, the Court of Appeals held that that an essential element of the charge of resisting a public officer is the identification of the official duty an officer was discharging or attempting to discharge at the time of a defendant’s resistance, rather than the specific basis for arrest. Thus, the Court concluded that the actual basis of arrest is not necessary to properly charge the offense of resisting a public officer.