This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on October 1, 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 consent to search of vehicle was not per se involuntary; sheriff’s deputy did not improperly extend Terry stop by asking defendant to drive down trail to the main road.
State v. Jackson, COA23-637, ___ N.C. App. ___ (Oct. 1, 2024). In this Mitchell County case, defendant appealed his convictions for possession of methamphetamine and paraphernalia, arguing error in denying his motion to suppress due to unsupported findings of fact and erroneous conclusions of law. The Court of Appeals disagreed, finding no error.
In March of 2020, a lieutenant from the sheriff’s office responded to a report of a vehicle driving up a logging trail on private property. When the lieutenant arrived, he found defendant’s vehicle parked at the end of the trail. The lieutenant spoke to defendant and his passenger and asked for their identification; during the conversation, the lieutenant because nervous due to the way defendant and the passenger were acting. After a few minutes, the lieutenant asked defendant to drive back to the road where his backup was waiting so they could complete the investigation. While driving back to the road, the lieutenant determined defendant’s passenger had outstanding warrants for her arrest. When they arrived back at the road, the lieutenant asked defendant if there was anything illegal in his car and defendant said “you’re welcome to look,” resulting in the discovery of methamphetamine in the car. Slip Op. at 3. Defendant was subsequently convicted of possessing the methamphetamine and appealed.
Defendant challenged several findings of fact related to his behavior and his consent to the search of his vehicle, roughly grouped into four categories (1) defendant’s and the passenger’s behavior, (2) whether the lieutenant was investigating an apparent trespass by defendant, (3) whether defendant agreed to move down the trail or was complying with an order from the lieutenant, and (4) whether defendant consented to the search of his vehicle. The Court of Appeals considered all four in turn and concluded that each was supported by competent evidence in the form of testimony from the lieutenant, who had been assessed as a credible witness by the trial court.
The court then moved to the challenged conclusions of law. Here, defendant argued the lieutenant improperly seized him when the lieutenant took his driver’s license and directed him to move down the trail back to the road, making his consent to the search involuntary. Applying Fourth Amendment precedent related to seizures and Terry stops, the court concluded that defendant was seized when he consented to the search of his vehicle. The court then considered whether the lieutenant had reasonable suspicion that defendant was committing criminal trespass, determining that the circumstances supported reasonable suspicion and the seizure was not unreasonably extended by ordering defendant to move down the trail to the road. This supported the ultimate conclusion that defendant “was not unreasonably seized when he consented to the search of his car [and] his consent was not per se involuntary.” Id. at 16.
Testimony from victim showed sexual offense continued after the effective date of Justice Reinvestment Act, justifying defendant’s sentence.
State v. Jenkins, COA23-1107, ___ N.C. App. ___ (Oct. 1, 2024). In this Davidson County case, defendant appealed his convictions for indecent liberties with a child and statutory sexual offense with a child, arguing he was improperly sentenced. The Court of Appeals found no error.
In November of 2021, defendant was indicted for sexual offenses with his step-grandchildren. At the conclusion of his trial, defendant was sentenced in accordance with G.S. 15A-1340.17(d). Relevant for defendant’s appeal, in 2011 the General Assembly passed S.L. 2011-192, the “Justice Reinvestment Act,” that amended G.S. 15A-1340.17 to provide a stiffer penalty for offenses committed after December 1, 2011.
On appeal, defendant argued that the evidence was unclear as to the dates when he committed the offenses, and that he should have been sentenced with the version of G.S. 15A-1340.17 applicable for offenses prior to December 1, 2011. The Court of Appeals disagreed, pointing to testimony from one of the victims about how old she was when the abuse occurred. The court explained that “[e]ven drawing inferences from this testimony that are mathematically favorable to Defendant, this evidence tends to show the conduct continued until at least 2014[,]” after the December 1, 2011, effective date. Slip Op. at 6.
Probable cause supported issuance of search warrant for defendant’s phone, negating ineffective assistance of counsel claim; defendant could not show prejudice in jury selection because he did not use all of his peremptory challenges.
State v. Reber, COA22-130-2, ___ N.C. App. ___ (Oct. 1, 2024). In this Ashe County case, defendant appealed of his convictions for rape of a child and sex offense with a child, arguing (1) ineffective assistance of counsel by failing to move to suppress evidence obtained from defendant’s cell phone, and (2) structural constitutional error by allowing four disqualified jurors to serve on defendant’s trial. The Court of Appeals found no error.
This opinion represents the second time the Court of Appeals considered defendant’s appeal; in the first instance, State v. Reber, 289 N.C. App. 66 (2023), the court found error in admitting certain prejudicial testimony, ordering a new trial. The Supreme Court then took up the State’s appeal, and reversed and remanded in State v. Reber, 386 N.C. 153 (2024). The current opinion represents the remaining issues not disposed of by the Supreme Court’s opinion.
For (1), defendant argued that he received ineffective assistance of counsel because his attorney did not move to suppress the results of a search of his phone. The court noted the applicable two-part test under Strickland v. Washington, 466 U.S. 668 (1984), and determined defendant could not establish the second prong, prejudice from counsel’s deficient performance. The basis for defendant’s argument was the search warrant application, specifically that it lacked identifying details about the timeline of his communications with the victim and how the police came to possess the phone and connect it to his interactions with the victim. The court noted that a magistrate may draw reasonable inferences when considering an application for a search warrant, and after reviewing the application and affidavit in support of the warrant, concluded “the affidavit set out the underlying circumstances from which the issuing judge could find that probable cause existed” and “the issuance of the warrant was proper.” Slip Op. at 13.
Moving to (2), defendant argued that it was structural constitutional error for the trial judge to allow six jurors who had already served on a case that day to participate in voir dire for defendant’s case because they were disqualified under G.S. 9-3. One of the qualifications for jurors in G.S. 9-3 is that the person “has not served as a juror during the preceding two years,” which defendant argued was violated here by the jurors participating in an earlier trial that day. Id. at 15. Defendant’s case was called to trial on August 3, 2021; earlier that day the jurors in question had served on a misdemeanor stalking case, finding the defendant in that matter not guilty. Afterwards, the judge asked jurors to stay and participate in defendant’s trial. Defense counsel was aware these jurors had served earlier in the day, and four of the six jurors were empaneled for defendant’s jury. Defense counsel did not object to the inclusion of the jurors and used only two of his six peremptory strikes. The court first noted that defendant could not demonstrate prejudice in the jury selection process because “[t]o establish prejudice in jury selection, the defendant must have exhausted all peremptory challenges.” Id. at 17. The court then noted that defendant did not preserve the error for appeal, and this issue did not fall under the structural error framework identified by the U.S. Supreme Court. Regardless of whether defendant successfully preserved his error on appeal, defendant was “unable to show that he was prejudiced by the alleged error or that it deprived him of a fair trial.” Id. at 19.
Totality of circumstances, including odor of marijuana, supported probable cause to search defendant’s vehicle; Court of Appeals panel rejected argument that “odor alone” doctrine was invalid.
State v. Schiene, COA23-682, ___ N.C. App. ___ (Oct. 1, 2024). In this Mecklenburg County case, defendant appealed after entering a guilty plea to possession of a firearm by a felon and felonious possession of a stolen firearm, arguing error in denying his motion to suppress evidence seized from his vehicle due to the indistinguishable odor of legal hemp and marijuana. In a per curiam opinion, the Court of Appeals affirmed the denial of defendant’s motion.
In September of 2020, police officers were on routine patrol around an inn known for drug investigations near the airport in Charlotte. The officers saw two people inside an SUV and approached the vehicle; as they approached, they smelled marijuana. When the officers approached, defendant was in the driver’s seat, and his nephew was in the passenger seat. As defendant’s nephew rolled down the window to speak to the officers, they noticed the smell of marijuana became stronger. The officers detained both men while searching the SUV, where they discovered a firearm, unburned marijuana in mason jars, digital scales, and defendant’s ID. At trial, defendant moved to suppress the physical evidence seized from the vehicle and statements he made prior to receiving a Miranda warning; the trial court denied the motion to suppress in part for the physical evidence but granted it in part as to the statements. After the trial court’s ruling, defendant pleaded guilty and gave notice of appeal.
Defendant’s argument on appeal was that the warrantless search of his vehicle was not supported by probable cause because the officer approaching the vehicle could not differentiate between the smell of illegal marijuana and legal hemp. The Court of Appeals first noted the applicable Fourth Amendment standard and the motor vehicle exception that permits a search if an officer has “reasonable belief” based on the circumstances that a vehicle contains contraband. Slip Op. at 7. The court explained that for the motor vehicle exception, the “probable cause analysis is based upon the ‘totality of the circumstances.’” Id. Here, the State offered other facts beyond the odor of marijuana supporting the search of the vehicle. The vehicle was parked in a manner that “could indicate illegal activity, particularly at night” and also “was positioned to provide a quick escape [and] was distant from most other vehicles in the far corner” of the parking lot. Id. at 7-8. When combined with the officers’ drug identification training and the odor of marijuana near the vehicle, the court concluded that “[t]hese factors are sufficient to support a ‘reasonable belief’ the automobile contained contraband materials.” Id. at 8. In turn, this supported the conclusion that “[u]nder the totality of the circumstances” the officers had probable cause to search defendant’s vehicle. Id.
The court then moved on to consider defendant’s argument against the validity of the “odor alone” doctrine from State v. Greenwood, 301 N.C. 705 (1981). Defendant’s argument focused on the precedential value of the opinion, arguing that the odor of marijuana alone supporting probable cause to search a vehicle was “not binding authority” from the opinion. Slip Op. at 10. The court disagreed, first noting defendant’s argument “that odor alone cannot justify probable cause is not rooted in any federal or state authority, as no binding authority has upheld any such argument.” Id. The court examined relevant portions of Greenwood and noted “[i]t is clear our Supreme Court agrees the odor of marijuana is sufficient for probable cause.” Id. at 11. Moving to more recent precedent, the court pointed to State v. Little, COA23-410, ___ N.C. App. ___ (Sept. 3, 2024), and other recent cases supporting the odor of marijuana giving probable cause to search a vehicle. The court concluded defendant could not show error or prejudice under this argument.
Judge Murphy concurred in the result only, and wrote separately to discuss the use of “high crime area” as a legitimate factor for probable cause. Id. at 14.
Evidence of defendant’s actions finding and hiding stolen goods supported convictions as an accessory after the fact; restitution award lacked evidence specific enough to support the award, justifying remand.
State v. Villarreal, COA23-186, ___ N.C. App. ___ (Oct. 1, 2024). In this Yadkin County case, defendant appealed his convictions for accessory after the fact to robbery with a dangerous weapon and felonious breaking or entering, and felonious possession of stolen goods, arguing error in (1) denying his motion to dismiss the accessory after the fact charges for insufficient evidence, and (2) ordering restitution unsupported by competent evidence. The Court of Appeals found no error in (1), but in (2) vacated the restitution award and remanded to the trial court for a new hearing on the appropriate amount of restitution.
In July of 2020, defendant discussed a potential robbery with three other individuals. Although defendant did not participate in the robbery, he did participate in discussions before the act, and helped discover two backpacks filled with gold and silver coins and bars hidden after the robbery by the principal. At trial, defendant moved to dismiss the charges, but the trial court denied the motion. Defendant was subsequently ordered to pay $12,264.70 in restitution in addition to his sentence.
Taking up (1), defendant argued that the State did not present evidence showing he personally assisted the principal “in escaping or attempting to escape detection, arrest, or punishment.” Slip Op. at 8. The Court of Appeals disagreed, noting that defendant helped search for the backpacks hidden by the principal, and after successfully locating them, “put the backpacks in his car, drove them to the home he shared with his mother, and hid them there for some time before handing them off.” Id. at 9. The State also presented evidence that defendant knew of the plans to rob the victims and hide the stolen goods, including being present for discussions about the plans and discussing the hiding place of the backpacks after the robbery. The court determined that this evidence was sufficient to support the elements of accessory after the fact for defendant’s convictions.
Moving to (2), the court noted that G.S. 15A-1340.34 permitted ordering restitution, but that evidence at trial must support the award. The court looked to State v. Moore, 365 N.C. 283 (2011), for the guideline that when there is “some evidence” but not evidence “specific enough to support the award,” the appropriate course of action is to remand to the trial court for a determination of the correct amount. Id. at 12. Here, the worksheet outlining restitution was not itemized and did not represent sufficient evidence to support the award, justifying remand for further proceedings.
Defendant knowingly violated domestic violence prevention order by showing up at restaurant where wife worked and yelling at her, then placing a photograph on her car in the parking lot.
State v. Washington, COA23-1095, ___ N.C. App. ___ (Oct. 1, 2024). In this New Hanover County case, defendant appealed the judgment finding him guilty of violating a domestic violence prevention order, arguing error in denying his motion to dismiss for insufficient evidence. The Court of Appeals disagreed, finding no error.
In March of 2020, defendant’s wife applied for a domestic violence prevention order; defendant consented to the order and it was entered in New Hanover County District Court. In December of 2020, defendant entered the restaurant where his wife worked and began yelling at her, despite the order requiring him to stay away from her. Defendant willingly left the restaurant after being confronted by the manager, but when leaving, he left a polaroid photograph on his wife’s vehicle in the parking lot.
On appeal, defendant argued there was insufficient evidence he “knowingly” went to the restaurant where his wife worked. The Court of Appeals rejected this argument, distinguishing the circumstances of a case relied on by defendant, State v. Williams, 226 N.C. App. 393 (2013), from the current case. In Williams, the defendant was walking in a parking structure near a public mall where the victim worked, as opposed to the current case, where defendant entered, and proceeded to yell at, his wife in the restaurant where she worked. The court explained that “defendant did actually observe, communicate with, and allegedly, harass, [the victim].” Slip Op. at 5. The court concluded that the State’s evidence demonstrated defendant knowingly violated the order.
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