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This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on December 17, 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.

Incriminating circumstances supported conviction for possession of stolen firearm.

State v. Bracey, COA23-875, ___ N.C. App. ___ (Dec. 17, 2024). In this Brunswick County case, defendant appealed his conviction for possession of a stolen firearm, arguing error in denying his motion to dismiss for insufficient evidence. The Court of Appeals majority found no error, affirming the denial.

In January of 2022, officers were observing a hotel known as a hub for illegal activity in Shallotte. One officer noticed a vehicle registered to defendant, who had four felony warrants. The officers observed the vehicle until defendant returned, and approached him as he was in the vehicle with the door open. After a brief discussion, defendant closed the door and fled in the vehicle, leading officers on a high-speed chase that ended in a crash. A search of defendant’s hotel room turned up narcotics and .38 caliber ammunition, and a search of the vehicle found a .38 caliber revolver hidden in a compartment next to the steering wheel. The revolver was reported stolen. When moving to dismiss the charge, defendant argued the State did not prove he knew the gun was stolen; the trial court denied the motion and defendant was convicted.

Taking up defendant’s arguments, the Court of Appeals looked to a line of cases holding that “a defendant’s knowledge of property being stolen . . . may be evinced by incriminating circumstances.” Slip Op. at 7. Here, defendant fled from officers, hid his gun in a special compartment in the vehicle, and denied having a gun when asked directly by the officers. The court concluded these facts represented incriminating circumstances that were substantial evidence defendant knew the gun was stolen.

Judge Murphy dissented, disagreeing with the majority’s conclusion that the State met its burden of proving defendant knew or had reasonable grounds to believe the gun was stolen.

Defendant was not entitled to Castle Doctrine instruction after pursuing intruder into nearby parking lot and beating him to death.

State v. Carwile, COA23-885, ___ N.C. App. ___ (Dec. 17, 2024). In this Lincoln County case, defendant appealed his convictions for second-degree murder, misdemeanor assault, and misdemeanor communicating threats, arguing (1) plain error in failing to give the jury an instruction on the defense of habitation, and (2) error by refusing to give his requested special jury instruction. The Court of Appeals found no error.

In September of 2018, a masked man approached defendant’s house, grabbed a chainsaw off defendant’s front porch and entered the house, striking defendant with the chainsaw. Defendant fought off the intruder, and their fight continued out into the yard, through a neighbor’s yard, and into a nearby car dealership parking lot. By the time they had reached the car dealership, the intruder had dropped the chainsaw and was backing away from defendant with his hands raised. At this point, defendant’s wife and another man staying at defendant’s home arrived, and all three began beating the intruder. Defendant continued to slam the intruder’s head into the concrete and beat him even as the intruder lay motionless on the ground. The intruder died of the injuries sustained from the beating. At trial, defendant asserted defense of habitation, and requested a special jury instruction. The trial court denied defendant’s requested instruction, and defendant did not object to the jury instructions given at trial.

For (1), defendant argued the following Castle Doctrine instructions were necessary: “(a) his fear for his life was presumptively reasonable; (b) an aggressor instruction clarifying that a person is ‘not the aggressor while defending their home’; and (c) he was allowed to threaten [the intruder] with lawful force.” Slip Op. at 5. The Court of Appeals disagreed, and reviewed each disputed instruction in turn. In (a), the court looked to G.S. 14-51.2(c), where the General Assembly provided exceptions to the presumption of reasonable fear. The court noted that the intruder had clearly exited defendant’s home, and based on the evidence, had also “discontinued all efforts to unlawfully and forcefully enter” defendant’s home. Id. at 9. Resolving (b), the court concluded “the evidence shows Defendant became the aggressor when Defendant continued to pursue [the intruder] after [the intruder] discontinued his efforts to unlawfully and forcefully enter the home and tried to leave.” Id. at 12-13. Finally in (c), the court noted that under the facts of this case defendant was not entitled to use deadly force under the Castle Doctrine and “[t]hus, Defendant’s contention that if deadly force is justified, so too is communicating threats fails because Defendant’s use of deadly force was not justified.” Id. at 14. The court also dispensed with defendant’s ineffective assistance of counsel claims as he was not entitled to the Castle Doctrine in this case.

Coming to (2), the court noted that defendant’s requested instruction focused on the intruder’s use of force and inability to assert self-defense while committing a felony, and attempted to extend State v. McLymore, 380 N.C. 185 (2022), “to the conduct of [the intruder], arguing that [the intruder] used impermissible force against Defendant because he was in the process of fleeing a felony when he fled Defendant’s home.” Slip Op. at 20. The court found that this was not supported by legal authority as the intruder “is not a criminal defendant and is not asserting self-defense as an affirmative defense for his conduct.” Id. Additionally, to the extent defendant’s requested instruction dealt with defendant’s right to self-defense, the jury was properly instructed on that concept and the court found no error in the instructions as given.

Officers observing dogs in distress from defendant’s driveway did not represent unreasonable search of defendant’s property.

State v. Johnson, COA24-336, ___ N.C. App. ___ (Dec. 17, 2024). In this Carteret County case, defendant appealed his convictions for felony and misdemeanor cruelty to animals, arguing error in denying his motion to suppress the results of a warrantless search of his home’s curtilage. The Court of Appeals found no error.

An animal control officer received a report about a strong smell, possibly a dead dog, coming from defendant’s property. When the officer looked up defendant he learned that defendant was on probation for cruelty to animals, and was required to allow reasonable searches of his home and yard concerning animals on his property. The officer called defendant but was unable to reach him and left a voicemail. When the animal control officer and a sheriff’s deputy arrived at defendant’s property, they smelled a strong odor of ammonia and feces, and observed overgrown brush and trash. The officers walked up the driveway to defendant’s home, observing many dogs in the yard and inside the house in terrible physical condition, many lacking food or water, and large piles of feces. The officers applied for and obtained a search warrant based on photographs of the animals they observed. Twenty-one dogs were seized from defendant’s property; the majority of the dogs needed veterinary assistance, and two were euthanized based on veterinary recommendation. The trial court denied defendant’s motion to suppress the results of the warrantless search after concluding that the search was reasonable based on exigent circumstances.

The Court of Appeals first explained that as the officers walked up defendant’s driveway, they were in a place “where the public is allowed to be,” meaning no unreasonable search had taken place at that point. Slip Op. at 10. While still in the driveway, the officers observed many signs of dogs in distress, and “the circumstances abundantly supported a reasonable belief that the dogs on the property needed immediate aid to prevent further serious injury or death such that exigent circumstances justified [the officer’s] warrantless entry.” Id. Additionally, seizing the dogs for emergency treatment to prevent further suffering was reasonable under the circumstances. The court also noted that the inevitable discovery doctrine applied to the dogs in the backyard. Likewise, because the search of the curtilage was not unconstitutional, the warrant to search defendant’s house was not based on an unconstitutional search. The court concluded that because there was no unreasonable search, the trial court did not err in denying defendant’s motion to suppress.

Despite lacking a mental state/intent requirement, North Carolina statute was categorical match for federal statute and represented Tier II offense for sex offender registration.

State v. Lingerfelt, COA23-1158, ___ N.C. App. ___ (Dec. 17, 2024). In this McDowell County case, defendant appealed the order denying his petition for termination of sex offender registration, arguing his underlying offense, sexual activity by a substitute parent, was a Tier I offense not a Tier II offense. The Court of Appeals majority disagreed, affirming the order.

In February of 2003, defendant was convicted of two counts of sexual activity by a substitute parent under G.S. 14-27.7. In March of 2023, defendant filed a petition to terminate his sex offender registration, but the trial court denied this petition, finding his offense was Tier II under the federal Jacob Wetterling Act and denying his petition. On appeal, defendant disputed the classification of his offense.

The Court of Appeals looked to State v. Moir, 369 N.C. 370 (2016), for guidance on determining which tier an offense falls under in the federal framework. Here, the court determined that G.S. 14-27.7(a) represents a “divisible statute” because it contains multiple offenses, meaning the court would need to apply the “modified categorical approach” from Moir. Slip Op. at 7. The court proceeded to “inquire as to whether the federal statute, abusive sexual contact, is a categorical match with the state offense of sexual activity by a substitute parent.” Id. at 10. Here the court noted that there was a difference between the two, as the “range of conduct prohibited by [G.S.] 14-27.7(a) is wider than the range prohibited by 18 U.S.C. § 2244(a)(3), because it does not require a mental state.” Id. at 13.

At this point, the court concluded “despite the mens rea mismatch between the statutes at issue, there is no realistic probability that North Carolina could or would enforce its statute in a way that would sweep in unintentional sexual activity by a substitute parent” and thus there was a categorical match. Id. at 14. The court acknowledged this was the opposite outcome from Cabeda v. Attorney General of United States, 971 F.3d 165 (3d Cir. 2020), where the Third Circuit concluded that the lack of a mens rea requirement meant a Pennsylvania statute was not categorical match for the federal crime.

Judge Murphy dissented and would have held that defendant’s conviction was not a match for the federal statute, making him a Tier I offender.

Evidence of defendant’s DWI offense supported revoking probation without testimony from arresting officer; trial court improperly assessed attorney appointment fee twice in proceedings.

State v. McCullough, COA 24-361, ___ N.C. App. ___ (Dec. 17, 2024). In this Cabarrus County case, defendant appealed the revocation of his probation, arguing error in determining defendant committed a new criminal offense and assessing fees. The Court of Appeals affirmed the order revoking defendant’s probation, but vacated the portion of the order charging defendant a duplicate attorney appointment fee, remanding for recalculation of the judgment and correction of a clerical error.

Defendant was charged with DWI and driving while license revoked in May of 2023. Defendant’s probation officer filed a violation report with the superior court alleging defendant had violated the terms of his probation by (1) committing new criminal offenses and (2) failing to pay court and supervision fees. Defendant’s probation expired on November 14, 2023, but the trial court scheduled a hearing on November 16, 2023, finding good cause to retain jurisdiction as the hearing was conducted during the same session of court as the expiration of probation. At the revocation hearing, defendant’s probation officer testified about the offenses charged against defendant, and the State introduced the warrant, an officer’s affidavit, and intoxilyzer result form from defendant’s arrest. Defense counsel objected to the probation officer testifying about the content of these items instead of the arresting officer, but the trial court overruled the objection. After revoking defendant’s probation, the trial court ordered a civil judgment for $325.00 in attorney fees as well as a $75.00 attorney appointment fee.

The Court of Appeals first dispensed with the defendant’s argument that there was insufficient evidence to show he committed a new criminal offense, looking to State v. Singletary, 290 N.C. App. 540 (2023). The court explained that “[a]lthough the arrest warrant is not sufficient . . . the charging officer’s affidavit and the intoxilyzer report were sufficient to allow the trial court to independently determine Defendant probably had committed the offenses of driving while impaired.” Slip Op. at 8. Considering defendant’s argument that the arresting officer’s testimony was necessary and it was error to denying defendant the ability to cross-examine him without good cause, the court again turned to Singletary, explaining that “[e]ven without the arresting officer’s affidavit or testimony, the trial court had sufficient evidence to independently determine a new offense of driving while impaired had been committed.” Id. at 9. Because this additional testimony would have been “merely extraneous,” the trial court did not err in failing to make a finding of good cause. Id.

Reviewing the “Judgment and Commitment Upon Revocation of Probation form,” the court determined that the trial court incorrectly checked box four, even though defendant’s failure to pay the fees alleged in the violation report was not a sufficient basis for revoking his probation. Id. at 10. The court looked to the transcript and determined that this was just a clerical error because the trial court clearly identified the new criminal conduct as the basis for revoking defendant’s probation. The court also noted that the $75 appointment fee authorized by G.S. 7A-455.1 was improperly charged twice, once during sentencing and again at the probation revocation hearing. The court remanded for the correction of the errors and recalculation of the judgment.

Knock and talk exception permitted officers to approach defendant’s door where they suspected he was selling drugs, and exigent circumstances supported warrantless search.

State v. Reel, COA23-711, ___ N.C. App. ___ (Dec. 17, 2024). In this Guilford County case, defendant appealed after pleading guilty to trafficking and possession of controlled substances charges and possession of a firearm by a felon, arguing error in denying his motion to suppress a warrantless search of his home. The Court of Appeals majority found no error.

In August of 2020, an anonymous tip came through Crime Stoppers about illegal drugs being sold at defendant’s residence. Officers from the High Point Police Department were sent to check the address and they decided to conduct a “knock and talk” at the residence. Officers went to the residence and parked outside, eventually seeing a silver car pull up to the residence. One officer approached the woman getting out of the silver car, but she did not respond to him. The officer followed the woman to the door, where she knocked and was let inside the residence; the officer smelled the strong odor of marijuana inside when the door was opened. At that point, the officer knocked on the door and identified himself as law enforcement, commanding the door to be opened. After no response, officers kicked the door down and searched the residence, finding marijuana, pills, and a digital scale in plain view. Before trial defendant filed a motion to suppress, and trial court concluded that “the ‘knock and talk’ by [the officer] did not rise to the level of a Fourth Amendment search and that probable cause and exigent circumstances justified the warrantless search.” Slip Op. at 4. Defendant pleaded guilty and reserved his right to appeal.

The Court of Appeals first took up defendant’s challenged findings of fact, resolving the minor discrepancies for purposes of the appeal and finding no major errors. Reviewing defendant’s challenged conclusions of law, the court found his contentions without merit, exploring both the knock and talk exception and the exigent circumstances that justified the warrantless search.

The court explained that the knock and talk exception allowed officers to approach a home, but only from where the public is allowed to be, like the front of the house. Here, defendant pointed out that one officer cut through his side yard, and the officers had parked a vehicle on a side street near the residence, and the officer approached his visitor and followed her to the door in a way that “exceeded what a ‘reasonably respectful citizen’ would do.” Id. at 12. The court disagreed with this interpretation, explaining that the officer in question “approached Defendant’s house in a way that was ‘customary, usual, reasonable, respectful, ordinary, typical, [and] nonalarming,’ . . . [and the officer] did not exceed the scope of a knock and talk and transform his presence . . . into a search for Fourth Amendment purposes.” Id. at 13.

Moving to probable cause and exigent circumstances justifying the search of defendant’s home, the court first established that “the plain smell of marijuana wafting from the front door constituted probable cause.” Id. at 15. The court then noted that officers were responding to two reports of drug sales at the house, and they were aware defendant was bracing the door, suggesting defendant would destroy evidence. These circumstances justified the warrantless entry and search of the residence.

Judge Thompson dissented and would not have found the knock and talk exception applicable to the situation in this case.

Trial court’s conclusions of law did not resolve whether K-9 unit alerted on vehicle, and K-9 alert could not represent probable cause for search of defendant’s person, justifying new proceedings on motion to suppress.

State v. Stollings, COA24-138, ___ N.C. App. ___ (Dec. 17, 2024). In this Rowan County case, defendant appealed after pleading guilty to possession of methamphetamine and drug paraphernalia and carrying a concealed handgun, arguing error in denying his motion to suppress as the products of an unlawful search and seizure. The Court of Appeals vacated the judgment, set aside the plea agreement in its entirety, and remanded for new proceedings on defendant’s motion to suppress.

In March of 2020, detectives were observing a fish game arcade when they saw a black SUV. After running the plates, they determined the SUV was registered to the spouse of defendant, a person one of the detectives was familiar with receiving information that defendant sold drugs in the past. Based only on this information, the detectives followed the SUV, eventually pulling it over near the Davidson County line for speeding 5 mph over the limit. During the stop, a K-9 unit performed an open-air sniff around the vehicle, alerting on the driver’s side near the gas lid. A detective searched defendant, finding methamphetamine in his pocket, and a search of the vehicle found a pistol near the center console and a set of scales, but no further contraband. Prior to trial, defendant filed a motion to suppress all the evidence, but the trial court denied the motion due to the K-9 alert. Defendant then entered into a plea agreement, reserving his right to appeal the denial.

Taking up defendant’s argument, the Court of Appeals began with the findings of fact, noting “material conflicts remain in the evidence as to whether the officers observed Defendant engage in suspicious activity, the basis for the search of Defendant’s person, and whether the K-9 positively alerted on Defendant’s vehicle for the presence of drugs.” Slip Op. at 5. The court then walked through Findings 19, 26, 27, 33, and 36, noting many of the findings simply recited the testimony of the detectives. The court highlighted findings 33 and 36, where the trial court recited testimony from two detectives regarding a K-9 alert and discussed troubling testimony about one detective waiving something near the rear tire where the K-9 was alleged to have alerted. This was not sufficient, as the court explained “[t]his witness testimony cannot substitute for a finding by the trial court that the K-9 alerted.” Id. at 12.

The court then reached conclusion of law 2, regarding the positive alert of the K-9 unit giving “reason” to search the vehicle and defendant’s person. Here the court pointed out that in conclusion of law 1, the trial court properly mentioned “probable cause,” but in conclusion 2, only mentioned “reason” to conduct the searches. Id. at 13. Additionally, “even if the trial court properly concluded the K-9 sniff gave probable cause to search the vehicle, it could not have given probable cause to search Defendant’s person.” Id. Because “the trial court’s denial of the Motion to Suppress was entered upon an improper legal standard,” the court remanded for new proceedings on the motion to suppress. Id. at 14.

Judge Gore concurred in the result only.

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