This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on March 5, 2025. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Second trial judge did not have authority to enter order denying motion to dismiss when hearing was held and ruling was rendered by previous trial judge who retired before entry of the order.
State v. Fearns, COA23-650, ___ N.C. App. ___ (March 5, 2025). For more in-depth discussion of this case, see this post by Prof. Shea Denning. In this Granville County case, defendant appealed her conviction for embezzlement, arguing that the trial court lacked authority to enter the order denying her motion to dismiss because it was not issued by the superior court judge who held the hearing. The Court of Appeals vacated the trial court’s order denying Defendant’s motion and remanded the matter for a new hearing on the motion.
In 2008, police began investigating defendant, an employee of a law firm, for allegedly embezzling approximately $50,000 from client trust funds. Due to various complications, including personnel changes and difficulty obtaining records, charges were not brought until January 2019. Defendant moved to dismiss, alleging the delay prejudiced her due to the unavailability of key documents. The trial judge who presided over the motion hearing in January 2020 orally denied it and asked the State to draft the order. This trial judge retired in October 2020. In September 2021, a new trial judge signed the order denying the motion to dismiss, with a notation that the order was issued by the previous trial judge and a citation to Rule 63 of the Rules of Civil Procedure. Defendant was subsequently convicted, and appealed.
The Court of Appeals concluded the second trial judge did not have the authority to sign the order denying defendant’s motion to dismiss. Because Rule 63, which allows a judge to perform the duties of another judge under certain circumstances, applies only to civil cases, “this issue is not governed by Rule 63.” Slip Op. at 10. The court also noted that “[t]he Rules of Criminal Procedure do not address the authority of one judge to enter an order on behalf of another judge in this context,” and the State did not provide any other authority in support. Id. at 11. Looking to State v. Bartlett, 368 N.C. 309 (2015), the court applied the principle that “the judge who presided at the hearing must make the findings of fact.” Slip Op. at 12. Because the second trial judge here did not have authority to enter the order denying defendant’s motion, the court vacated her conviction and remanded for a new hearing on the motion.
Judge Stading concurred by separate opinion, emphasizing “a tempered application of State v. Bartlett” as that case focused specifically on motion to suppress statutes. Id. at 14.
No error when seating a new potential juror from the jury pool, as jury was not yet empaneled and potential members were not yet classified as jurors.
State v. Griffin, COA24-156, ___ N.C. App. ___ (March 5, 2025). In this Mecklenburg County case, defendant appealed his convictions for first-degree murder and possession of a firearm by a felon, arguing the trial court erred by seating a juror from the jury pool instead of elevating one of the prospective alternate jurors. The Court of Appeals found no error.
Defendant was indicted for first-degree murder, possession of a firearm by a felon, and conspiracy to commit robbery with a dangerous weapon related to a 2018 armed robbery. During jury selection, twelve prospective jurors were selected, as well as two prospective alternate jurors. Before the jury was empaneled, prospective Juror No. 7 was excused due to his wife going into labor. The State argued that a new juror should be selected from the jury pool under G.S. 15A-1214(g). Defendant argued that one of the prospective alternate jurors should replace Juror No. 7, and then a new alternate juror should be selected. The trial court agreed with the State, and a new prospective juror was picked from the pool to replace the departing juror. The jury was then empaneled and ultimately found defendant guilty of first-degree murder and possession of a firearm by a felon.
The Court of Appeals explained the core of the question on appeal as “whether those prospective, yet-to-be members of the to-be empaneled jury who have been accepted by each party, are properly classified as jurors or alternate jurors.” Slip Op. at 8. The text of G.S. 15A-1215 governs when an alternate juror becomes a juror, but to properly apply the statute in this situation the court was forced to determine the proper meaning of “juror.” Referencing Garner’s Modern English Usage, the court stated that a “juror” is someone who has been empaneled on the jury and distinguished this from a potential juror or veniremember who hasn’t yet been selected to sit on the jury. Id. at 8. The court held that G.S. 15A-1214(g) was controlling in this situation, as it permitted the trial court to substitute a new prospective juror when a juror that has been accepted but not empaneled is challenged for cause. Concluding the analysis, the court noted that since defendant did not argue or show prejudice on appeal, his “contentions as to statutory error are overruled.” Id. at 12. Defendant also attempted to argue that his constitutional right to a fair and impartial jury was infringed, but the court held he failed to preserve this argument as he did not raise it at trial.
Testimony from defendant’s psychologist did not establish the mitigating factor that his schizophrenia significantly reduced his culpability for the murder.
State v. Rojas, COA24-690, ___ N.C. App. ___ (March 5, 2025). In this Gaston County case, defendant appealed his aggravated sentence for second-degree murder, arguing that the sentencing judge erred in failing to find the statutory mitigating factor that he was suffering from a mental or physical condition that significantly reduced his culpability. The Court of Appeals found no error.
This matter previously reached the Court of Appeals in the unpublished State v. Rojas, No. COA20-810. Defendant murdered his girlfriend in May 2016 by stabbing her over 100 times and leaving her to bleed to death in their bathtub. He was initially found incompetent to stand trial due to psychotic disorders but later deemed competent after psychiatric care. At the resentencing hearing (the original sentence having been vacated in the previous appeal), defendant presented testimony from a forensic psychiatrist who diagnosed him with schizophrenia. However, the psychiatrist stated he couldn’t testify with reasonable medical certainty whether schizophrenia contributed to the violent behavior at the time of the murder. Defendant also testified, blaming medication and hallucinations for his actions, but he offered no other expert testimony. The trial court found two aggravating factors (especially heinous, atrocious, or cruel; and taking advantage of a position of trust) and three mitigating factors (support system, positive employment history, and good treatment prognosis), but ultimately determined the aggravating factors outweighed the mitigating factors, imposing an aggravated sentence.
On appeal, defendant argued that the sentencing court ignored the credible testimony of the forensic psychologist that he suffered from schizophrenia, and it contributed to his culpability for the crime. The Court of Appeals disagreed, concluding that defendant could not show “substantial, uncontradicted, and manifestly credible evidence” of the mitigating factor as his “only expert witness could not, and did not, testify with reasonable medical certainty that defendant’s schizophrenia contributed to the murder or otherwise significantly reduced defendant’s culpability for the offense.” Slip Op. at 12. Therefore, the court held that the sentencing judge did not err in declining to find the mitigating factor.
Testimony from police officer and forensic expert that substance appeared to be marijuana was properly admitted and supported defendant’s convictions, despite lack of testing confirming substance was not hemp.
State v. Ruffin, COA24-276, ___ N.C. App. ___ (March 5, 2025). In this Martin County case, defendant appealed his convictions for trafficking in heroin offenses, sale of marijuana, and delivery of marijuana, arguing several errors related to the trial court’s admission of testimony regarding the identification of marijuana and errors in sentencing. The Court of Appeals found no error.
In 2021, a confidential informant (CI) contacted defendant, seeking to buy seven grams of fentanyl “and some marijuana.” Slip Op. at 3. Defendant quoted prices for both, and the CI paid defendant and received two bags of the substances. Defendant was arrested shortly after leaving the scene. At trial, the detective who worked with the CI testified based on his training and experience that the plant material appeared to be marijuana. A forensic scientist from the state crime lab also testified about the plant material, concluding it was “plant material belonging to the genus cannabis containing tetrahydrocannabinol [THC].” Id. at 4. However, she also testified that the lab lacked the ability to distinguish between marijuana and hemp, and that it was possible the plant material was hemp. Defendant requested and the trial court provided a jury instruction stating that the term marijuana does not include hemp or hemp products. Defendant was subsequently convicted, and received consecutive sentences of 70 to 93 months for his offenses.
Taking up defendant’s arguments, the Court of Appeals first addressed whether it was error to allow the detective to testify that the plant material was marijuana as lay opinion testimony. Because defendant did not object to the testimony at trial, the Court reviewed for plain error. Referencing previous case law, the court noted that a police officer experienced in the identification of marijuana may testify to his visual identification of evidence as marijuana. Defendant pointed to State v. Ward, 364 N.C. 133 (2010), to argue that an officer’s visual identification is no longer reliable since the legalization of hemp. The Court distinguished Ward, noting “the standard for lay opinion testimony under Rule 701— including [the detective’s] testimony—is unchanged in light of Ward.” Slip Op. at 9. Subsequent caselaw also supported that “law enforcement officers may still offer lay opinion testimony identifying a substance as marijuana.” Id. As a result, the court found no error in admitting the testimony.
The court applied the same plain error analysis to the forensic expert’s testimony as defendant did not object to her testimony either. Because she was testifying as an expert under Rule 702, the court looked to State v. Abrams, 248 N.C. App. 639 (2016), to determine if the expert followed reliable procedures for identifying the substance as marijuana. The court was satisfied that the expert followed acceptable procedures as established by previous caselaw, and found the testimony reliable under Rule 702, meaning it was not error to admit her testimony.
Defendant also argued that it was error to deny his motion to dismiss because the State did not provide adequate evidence the substance was marijuana not hemp. The court disagreed, pointing to the testimony of the detective and forensic expert discussed above, as “our courts have consistently affirmed that testimony identifying a substance as marijuana—from a law enforcement officer as well as a forensic expert—is sufficient to take the matter to the jury.” Id. at 15.
Although the trial court used the appropriate pattern jury instruction, along with an alteration specifically requested by defendant, defendant argued it was error to omit instruction that “marijuana has a Delta-9 THC content in excess of 0.3%, while hemp has a Delta-9 THC content of 0.3% or less.” Id. at 18. Applying the plain error standard again, the court found no error, as the court held that the instruction given was an accurate statement of the law.
Finally, the court reached the sentencing issues, where defendant argued he was improperly sentenced for selling and delivering marijuana in the same transaction. The court concluded that any error if it existed was harmless, as “the trial court consolidated those convictions to run concurrently with the longer sentence for Trafficking in a Mixture Containing Heroin by Transportation.” Id. at 20. Defendant also argued that the prosecutor offered improper information that influenced sentencing considerations, as the prosecutor referenced a victim who died and a pending death by distribution charge against defendant. However, “the trial court here expressly rejected the prosecutor’s arguments regarding the separate charges on the Record and affirmatively stated that other charges would be considered in separate proceedings,” meaning there was no evidence that defendant received a sentence based on improper information. Id. at 25.
Assault with a deadly weapon inflicting serious injury may serve as the predicate for felony murder when defendant acted with actual intent to commit the act forming the basis of the murder charge; G.S. 20-166 is ambiguous regarding the unit of prosecution, leading the court to apply the rule of lenity and conclude the unit is per crash, not per victim.
State v. Watlington, COA23-1106, ___ N.C. App. ___ (March 5, 2025). In this Guilford County case, two defendants, Watlington and Felton, both appealed from judgments entered after a trial where the defendants were tried jointly. Watlington was convicted of first-degree murder and additional felonies related to her attempts to run over multiple people at a gas station after a fight. Felton was convicted of eleven counts of accessory after the fact to Watlington’s convictions. The Court of Appeals arrested judgment on three of Watlington’s convictions for hit and run and three of Felton’s convictions for accessory after the fact to hit and run, but found no error with the other convictions, remanding for resentencing.
One early morning in October of 2019, Felton drove an SUV to a gas station in Greensboro, with Watlington as a passenger. After hitting a parked car, a confrontation ensued between Watlington, Felton, and the car’s owner. The argument escalated into a brawl involving multiple people over the course of twenty-five minutes, and testimony showed Felton was the primary aggressor. Around thirty minutes after the confrontation began, Watlington got into the driver’s seat of the SUV and backed over a group of people; it took her approximately ten seconds to completely run over the victims. After stopping completely clear of the victims, Watlington drove forward, running over the same group of people at full speed. Felton watched the entire incident without stopping Watlington, then stood over the victims yelling at them. One victim died at the scene, and several others sustained serious injuries. The two defendants drove away in the SUV but were apprehended nearby a short time later.
The Court of Appeals took up Watlington’s arguments on appeal first, beginning with her argument that it was error for assault with a deadly weapon inflicting serious injury to be the predicate felony for her first-degree murder conviction. In State v. Jones, 353 N.C. 159 (1994), the Supreme Court held that “[f]or assault with a deadly weapon inflicting serious injury to serve as the predicate felony for a felony murder conviction . . . the individual must have acted with a ‘level of intent greater than culpable negligence.’” Slip Op. at 11 (quoting Jones at 167). Here, Watlington argued that Jones represented a “bright-line rule” that assault with a deadly weapon inflicting serious injury could never be a predicate felony, an argument the court rejected. Id. Instead, the court explained that “assault with a deadly weapon inflicting serious injury, as a matter of law, can serve as the predicate felony for a felony murder conviction when the defendant acts with the ‘actual intent to commit the act that forms the basis of [the] first-degree murder charge.’” Id. at 13 (quoting Jones at 166). The trial court properly instructed the jury in this case, and the court noted that sufficient evidence supported the conclusion that Watlington acted intentionally when driving over the victims with the SUV. The court also rejected Watlington’s challenge to the jury instruction for felony murder and the lack of an instruction on voluntary manslaughter, finding no errors in the instruction given and no evidence to support an additional voluntary manslaughter instruction.
The court next considered Watlington’s argument regarding her multiple hit and run counts, and agreed that the structure of the statute did not support all the convictions. G.S. 20-166 “does not clarify whether its unit of prosecution is the conduct of leaving the scene of a crash or the number of victims injured as a result of the crash,” resulting in an ambiguity for the court to resolve. Id. at 18. Here the court applied the rule of lenity, interpreting the ambiguity in Watlington’s favor. The court explained that there were five victims, but only two crashes, one when Watlington backed over the victims and the second when Watlington drove forward over the victims. As a result, Watlington could only be convicted twice, “one conviction for Watlington’s conduct of leaving the scene of each crash,” and the court arrested judgment on the other three hit and run convictions. Id. at 21.
Arriving at Felton’s arguments, the court first dispensed with her argument that there was insufficient evidence to support her convictions for accessory after the fact. Here, evidence showed that Felton watched Watlington hit the victims with the SUV, then left the scene with her and took the keys to the SUV, concealing the identity of Watlington as the driver. The court found this evidence sufficient to support Felton’s convictions. The court also rejected Felton’s challenge to the language of her indictments, finding no fatal variance from the evidence at trial.
Felton argued that she should not be subject to multiple convictions for accessory after the fact; the court rejected this, explaining “the context of [G.S.] 14-7 clearly indicates that the legislature intended the allowable unit of prosecution to be each felony for which the principal committed and the accessory assisted after the fact.” Id. at 27. The court then considered Felton’s argument that she was convicted as accessory after the fact to hit and run for merely leaving the scene. Rejecting this argument, the court pointed to the many other aspects of Felton’s culpability after the crashes, including taking the SUV’s keys and concealing Watlington’s identity as the driver. However, the court arrested judgment on three of Felton’s convictions, as it had done for Watlington’s hit and run convictions discussed above.
Felton then challenged the jury instructions, arguing they provided a theory of guilt not alleged in the indictments, specifically that she assisted Watlington in attempting to escape. The court noted the circumstantial evidence of Felton possessing the SUV keys and that this did not represent a stand-alone theory of guilt, rejecting Felton’s argument. Finally, the court rejected Felton’s challenge to the closing argument, noting that law enforcement body cam footage supported the inference that Felton and Watlington were together when apprehended.
