This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on March 19, 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.
State’s questions regarding defendant’s failure to give a statement did not represent plain error; closing argument reference to defendant’s self-defense claim as “smoke and mirrors” was not grossly improper.
State v. Earley, COA24-386, ___ N.C. App. ___ (March 19, 2025). In this Union County case, defendant appealed her convictions for attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury, arguing error in (1) allowing the State to repeatedly question defendant about her failure to make a statement to law enforcement, and (2) allowing the State to reference her silence during closing argument. The Court of Appeals majority found no plain error.
The charges against defendant arose from her shooting her husband in the bathroom of their home in January 2022. Defendant fled the home but later turned herself in, declining to give a statement but telling officers she had no injuries. At trial, a prosecutor asked one of the law enforcement officers if defendant was given a chance to make a statement, and defense counsel objected. The objection was overruled, and the officer confirmed he did give defendant a chance to make a statement. Later questioning covered the officer’s attempts to speak to defendant on the phone about her version of events, which defense counsel did not object to at the time. Defendant was cross-examined about not giving a statement, and defense counsel again failed to timely object. Defendant’s version of events presented a self-defense claim, which the prosecutor called “smoke and mirrors” during closing argument. Defense counsel objected to this statement after the jury had left for deliberations, but the trial court did not rule on the objection, and defendant was subsequently convicted.
The Court of Appeals first established that defendant did not properly preserve her arguments for appeal, meaning the review would be plain error for (1) and grossly improper for (2). Taking up (1), the court disagreed that the questioning rose to the level of plain error, as “[t]he State presented overwhelming evidence from which a jury could conclude that the State’s version, rather than Defendant’s version, accurately explained the events.” Slip Op. at 20. This included defendant’s lack of injuries and the crime scene evidence of the blood, broken glass, and location of bullets in the walls, which did not support defendant’s narrative of a struggle and firing in self-defense. Moving to (2), the court disagreed that the prosecutor’s statements were grossly improper, as “the State’s references to Defendant’s silence were de minimis and, in context of the Record, do not rise to the level of being prejudicial to Defendant.” Id. at 25.
Judge Tyson provided a lengthy dissent, arguing “[t]he State repeatedly violated Defendant’s assertion of [her] rights and belittled her silence and prejudiced her before the jury.” Id. at 28.
Defendant forfeited right to counsel and right to be present in courtroom by repeated disruptive conduct; Virginia conviction for identity theft was not substantially similar to North Carolina offense for sentencing purposes.
State v. Fuller, COA24-471, ___ N.C. App. ___ (March 19, 2025). In this Rockingham County case, defendant appealed his convictions for obstruction of justice, attempting to access a government computer to defraud, and filing false liens, arguing error in (1) concluding defendant forfeited his right to counsel and right to be present in the courtroom for trial, and (2) finding that defendant’s Virginia conviction was substantially similar to the North Carolina offense of identity theft for sentencing. The Court of Appeals found no error in (1), but remanded for resentencing based on (2).
Defendant was indicted in February 2022, and at his first appearance indicated he wanted to waive his right to counsel but refused to sign the waiver form. At a later pretrial appearance, defendant asked for counsel to be appointed for “the defendant,” but gave confusing responses as to whether he was requesting counsel for himself. At the next appearance before the trial court, defendant was removed for being disruptive, and eventually the trial court concluded defendant had forfeited his right to counsel through inappropriate behavior. At trial, defendant was handcuffed to a wheelchair after threatening to remove his clothing. After another confusing exchange where defendant requested a lawyer for “the defendant,” and caused disruption in the courtroom, defendant was removed from the courtroom and was given written updates on the trial by the trial court. Defendant was subsequently convicted on all counts.
Taking up (1), the Court of Appeals looked to State v. Smith, 292 N.C. App. 656 (2024), for the applicable standard when a defendant’s conduct justifies forfeiture of counsel. Here, defendant’s conduct was “combative and interruptive—he insisted the trial court could not be impartial, interrupted and spoke out of turn, threatened to remove his clothing, and refused to directly answer the trial court’s questions.” Slip Op. at 16. As a result, the court held that it was not error to conclude defendant forfeited his right to counsel. The court then considered whether removing defendant from the courtroom was error, looking to United States v. Mack, 362 F.3d 597 (9th Cir. 2004) and People v. Cohn, 160 P.3d 336 (Colo. Ct. App. 2007). Complicating the considerations, many cases and G.S. 15A-1032 presume that a defendant removed from the courtroom will be represented by counsel, which was not the case here. The court concluded that the trial court’s actions here were reasonable, including providing updates to defendant and instructing the jury not to consider defendant’s removal from the courtroom. Finally, the court concluded that not appointing standby counsel was not prejudicial error and G.S. 15A-1032 did not require appointment of standby counsel when defendant was removed.
Arriving at (2), the court explained that Virginia’s statute on identity theft (Va. Code § 18.2-186.3) differed in material ways from the North Carolina version in G.S. 14-113.22. The court agreed with defendant’s argument that “the statutes are not substantially similar because Virginia’s statute can be violated using the identifying information of a ‘false or fictitious person’ whereas North Carolina’s statute requires the offender to have used the identifying information of a ‘real person.’” Slip Op. at 28. Thus the court remanded for resentencing.
Court of Appeals found no prejudicial error after Anders brief review.
State v. Johnston, COA24-816, ___ N.C. App. ___ (March 19, 2025). In this Pitt County case, defendant appealed his convictions for possession of cocaine and felony fleeing to elude arrest; defense counsel filed a brief under Anders v. California, 386 U.S. 738 (1967). The Court of Appeals found no error.
Defendant was arrested for speeding past a highway patrol officer, fleeing from the officer for several miles, and throwing something out of his window. Once defendant was pulled over, a search of the vehicle discovered cocaine and $1,100 in cash. Defendant came to trial in May 2023, where he was acquitted of driving while impaired and maintaining a vehicle for selling cocaine, but convicted of the other charges.
The Court of Appeals took up defendant’s appeal and conducted a review under Anders looking for any prejudicial error. The court considered the trial court’s denial of defendant’s motion for substitute counsel, whether defendant expressed a desire to represent himself, an overruled objection to testimony, and defendant’s opportunity to address the trial court regarding attorney’s fees, concluding that none of these issues represented error.
Defendant’s disputes and requests for replacement of appointed counsel did not represent forfeiture or waiver of counsel, justifying remand for new trial.
State v. McGirt, COA24-551, ___ N.C. App. ___ (March 19, 2025). In this Wake County case, defendant appealed his convictions for statutory sex offense with a child and indecent liberties with a child, arguing error in concluding defendant waived his right to counsel or forfeited his right to counsel. The Court of Appeals majority concluded defendant did not voluntarily waive his right to counsel or forfeit his right to counsel, reversing and remanding for a new trial.
In 2019, defendant was indicted for the sex offense and indecent liberties charges, and because defendant was indigent the trial court appointed counsel. This began a series of five appointed attorneys representing defendant, and by 2023 all the attorneys withdrew or were replaced. On May 4, 2023, the trial court held a hearing on the final attorney’s motion to withdraw, and after consulting with defendant concluded that defendant had waived his right to representation and ordered the public defender’s office to supply standby counsel. On May 22, 2023, defendant requested another court-appointed attorney, and the trial court denied the request. The State moved to have standby counsel question witnesses during trial and the trial court granted the motion, but otherwise defendant represented himself at trial.
Taking up defendant’s arguments, the Court of Appeals first considered waiver, looking to precedent like State v. Moore, 290 N.C. App. 610 (2023), for the circumstances required to find waiver of the right to counsel. Here, the trial court did not tell defendant that if he fired his attorney, he would be waiving the right to counsel, instead pronouncing this after granting the attorney’s motion to withdraw. Also, “[t]he trial court never asked if Defendant wished to represent himself, nor did Defendant make an explicit statement that he would represent himself” and the trial court also “did not inquire whether Defendant understood the difference between a court-appointed counsel versus standby counsel, such that Defendant was now proceeding pro se.” Slip Op. at 14 (cleaned up). The court noted that defendant repeatedly asked for new counsel, despite once mentioning representing himself, meaning it was not clear and unequivocal that defendant wished to represent himself. As a result, the court concluded defendant did not “clearly and unequivocally” waive his right to counsel. Id. at 18.
The court then looked to whether defendant forfeited his right to counsel, concluding “[b]ased on the Record evidence, we cannot say Defendant’s firing of his attorneys was ‘egregious misconduct’ or a flagrant delaying tactic” and it was error to find that defendant forfeited his right to counsel. Id. at 23. Finally, the court considered the hybrid waiver/forfeiture by conduct outlined in State v. Blakeney, 245 N.C. App. 452 (2016). The court concluded defendant did not waive his right to counsel by conduct “[b]ecause waiver by conduct ‘requires that a defendant be warned about the consequences of his conduct,’ and there is no Record here that the trial court provided Defendant with any warning regarding his conduct, nor does the State argue there was any warning[.]” Id. at 25 (quoting Blakeney at 465).
Judge Tyson dissented and argued “[t]he majority’s opinion incorrectly concludes Defendant did not waive or forfeit his right to counsel.” Id. at 32.
Defense counsel’s Harbison error justified new trial.
State v. Meadows, COA24-149, ___ N.C. App. ___ (March 19, 2025). In this Duplin County case, defendant appealed his convictions for first-degree murder and possession of a firearm by a felon, arguing defense counsel was ineffective by conceding his guilt without permission. The Court of Appeals majority agreed, vacating the judgment and granting defendant a new trial.
In July of 2016, officers responded to the report of a break-in and gunshot injuries. Defendant was indicted for the break-in and shooting of the victim and came to trial in March 2023. Before and during the trial, defendant attempted to get new counsel three times, but each attempt was denied by the trial court. During trial, testimony from defendant’s former girlfriend focused on his gang connections and his motivations for the killing, including following orders from gang leaders so that he could move up in the organization. At the charge conference, the trial court denied the State’s request for an instruction on acting in concert, but the prosecutor made arguments related to acting in concert anyway. When defense counsel gave closing arguments, he referenced the structure of the gang and conceded that defendant was present at the scene of the crime and that he ran away afterwards, leaving his shoes outside the house. Defendant was subsequently convicted.
The Court of Appeals agreed with defendant’s argument that “his counsel impliedly admitted defendant’s guilt when he stated during closing arguments that defendant went to the home of the victim with [two gang members] on the night of the incident.” Slip Op. at 10. The court explained this represented a violation of defendant’s rights under the Sixth and Fourteenth Amendments as articulated in State v. Harbison, 315 N.C. 175 (1985). Here, there was no on-the-record Harbison inquiry except for defendant’s consent to the discussion of a prior conviction. There was “no evidence in the record to suggest that at any other point before or during trial defendant’s counsel sought or obtained informed consent from defendant to discuss his presence at the crime scene or his involvement with the gang the evening of the incident.” Slip Op. at 12. The court also highlighted defense counsel’s statements that represented “an implied admission that although defendant was following orders, he was also a participant in the crime in question.” Id. at 15-16. Defense counsel’s statements represented a Harbison error of impliedly admitting defendant’s guilt, justifying a new trial.
Judge Stading dissented, arguing defense counsel did not impliedly admit defendant’s guilt, and that even if he did admit guilt, the lack of record about defendant’s voluntary consent justified dismissing the appeal and allowing defendant to file a motion for appropriate relief.
Trial court performed appropriate Waller analysis before closing courtroom during testimony of two witnesses.
State v. Miller, COA24-72, ___ N.C. App. ___ (March 19, 2025). In this Union County case, defendant appealed his convictions for attempted first degree murder, going armed to the terror of the people, and possession of a handgun by a minor, arguing it was error to close the courtroom during the testimony of two witnesses. The Court of Appeals found no error.
This matter arose from a shooting at a basketball court and originally reached the Court of Appeals in State v. Miller, 287 N.C. App. 660, (2023), where the panel concluded that the trial court did not utilize the four-part test from Waller v. Georgia, 467 U.S. 39 (1984), when determining it was acceptable to close the courtroom. On remand, the trial court determined that closing the courtroom during the testimony of two witnesses was justified under Waller, as defendant had attempted to intimidate the young witnesses. The current case comes after the trial court’s entry of an order on remand and defendant’s second appeal.
The Court of Appeals began by laying out the four-part test from Waller and then performed an analysis. The court considered (1) whether the State advanced an overriding interest supporting the closure; (2) whether the trial court made adequate findings to support the closure; (3) if the closure was no broader than necessary; and (4) that no reasonable alternatives to closure existed. First, “the State adequately advanced the overriding interest of witness safety, and that interest was likely to be prejudiced by the intimidation tactics of Defendant and members of the gallery filming.” Slip Op. at 14. The court determined competent evidence supported the closure based on the State’s exhibits and defendant’s prior conduct. The trial court only closed the courtroom during the testimony of the two witnesses, narrowly tailoring the closure to the issue at hand. Finally, the trial court had already banned cellphones in the courtroom, but even then one of defendant’s relatives was found in possession of a cellphone, showing the trial court considered alternatives before moving to closure of the courtroom.
State’s comments regarding not guilty plea and cross-examination of witness did not require trial court to intervene ex mero motu; imposition of Class B1 sentence for defendant’s second-degree murder conviction was proper.
State v. Parker, COA24-230, ___ N.C. App. ___ (March 19, 2025). In this Wilson County case, defendant appealed his convictions for second-degree murder and possession of a firearm by a felon, arguing error in (1) failing to intervene ex mero motu during the State’s closing argument or in the alternative ineffective assistance of counsel for failing to object, and (2) sentencing him to a Class B1 sentence with lack of support. The Court of Appeals found no error.
The murder victim had previously attacked defendant’s son, and defendant came to the house were the victim lived with his mother in May of 2020 seeking retribution. Defendant and an accomplice forced their way into the home and after a confrontation, defendant shot the victim. The accomplice pleaded guilty to manslaughter and testified for the State. During closing arguments, the State referenced defendant’s plea of not guilty, criticized the manner in which defense counsel had cross-examined the victim’s mother, and equated his trial to the charges the accomplice-turned-witness had pled guilty to.
Taking up (1), the Court of Appeals first established that the statements in question occurred after defendant had attacked the validity of the victim’s mother’s testimony in closing arguments, and “[t]he State’s closing arguments were not prejudicial comments on Defendant’s execution of his right to remain silent, but could be considered instead a defense of the State’s strategy.” Slip Op. at 8. When considering the statement regarding the manslaughter plea of the witness, the court explained that while it is possible there was a misstatement of the law, “the trial court also provided the jury with instructions regarding how to evaluate the testimony of a witness who had secured a plea deal from the State.” Id. at 9. Finally, the court found no prejudice from any possible ineffective assistance of counsel, as the State provided overwhelming evidence that defendant was the shooter.
Moving to (2), the court explained that B1 and B2 felonies are “differentiated by the type of malice involved,” with B1 felonies being the default for second-degree murder and B2 felonies being justified by inherently dangerous acts or omissions only. Here, the State did not argue or present evidence defendant acted recklessly or engaged in an inherently dangerous act, and instead “[t]he State presented substantial evidence tending to show Defendant was in unlawful possession of a deadly weapon and was intent on causing harm and revenge.” Id. at 14. Thus, defendant’s sentence was justified by the evidence.
Defendant’s admission that he lived in his parents’ home, along with circumstantial evidence, supported conviction of keeping or maintaining a dwelling for controlled substances.
State v. Rowland, COA24-274, ___ N.C. App. ___ (March 19, 2025). In this Wake County case, defendant appealed his convictions including keeping or maintaining a dwelling for the keeping or selling of controlled substances, arguing error in denying his motion to dismiss the keeping or maintaining a dwelling charge. The Court of Appeals disagreed, finding no error.
Raleigh Police received information that defendant was selling bundles of heroin from his residence and began investigating, resulting in a 2021 search warrant for the home that turned up heroin, firearms, and drug paraphernalia. The residence was owned by defendant’s parents, and in an interview with police defendant told them he had lived at the residence “on and off since 2005.” Slip Op. at 2. At trial, defendant moved to dismiss the charge, arguing the State did not demonstrate that the dwelling had been kept or maintained over time for the purpose of controlled substances, but the trial court denied the motion.
The Court of Appeals first noted that G.S. 90-108(a)(7) governed the crime in question, and “[w]hile mere occupancy of a property, without more, will not support the ‘keeping or maintaining’ element, ‘evidence of residency, standing alone, is sufficient to support the element of maintaining.’” Id. at 5 (quoting State v. Spencer, 192 N.C. App. 143, 148 (2008)). Additionally, residency can be established by defendant’s admission and through circumstantial evidence, both of which were present here. The court concluded that the admission defendant resided at his parents’ house along with the State’s circumstantial evidence defendant resided in the home represented substantial evidence defendant kept or maintained a dwelling for controlled substances.
Defendant’s prior record level was improperly calculated due to inclusion of DWLR-Impaired Revocation, and calculation error justified resentencing.
State v. Wilson, COA24-442, ___ N.C. App. ___ (March 19, 2025). In this Watauga County case, defendant appealed the sentence he received after pleading guilty to possession of a stolen firearm, arguing error in calculating his prior record level. The Court of Appeals majority agreed, vacating defendant’s sentence and remanding for resentencing.
During sentencing, the trial court calculated defendant’s prior record level as Level III with six points, including one point for defendant’s misdemeanor conviction of driving while license revoked for impaired driving (DWLR-Impaired Revocation). On appeal, defendant argued that the DWLR-Impaired Revocation conviction was exempt from prior record level calculations under G.S. 15A-1340.14(b)(5) as it is an “other misdemeanor traffic offense” identified under the statute. Slip Op. at 2-3. This led the court to conclude that defendant “should have been sentenced as a PRL II, rather than a PRL III.” Id. at 3.
The State argued that this error was not prejudicial, but the court disagreed, noting the holding in State v. Williams, 355 N.C. 501 (2002), that a prior record level error prejudices a defendant even if the sentence given fell within the appropriate presumptive range.
Judge Murry dissented, agreeing that the prior record level calculation was error but that the error was harmless and did not justify remand for resentencing.
Still images from ATM video were properly authenticated and admitted; lay opinion testimony from officer identifying defendant was properly admitted.
State v. Windseth, COA24-718, ___ N.C. App. ___ (March 19, 2025). In this Jackson County case, defendant appealed his convictions for felony obtaining property by false pretenses and felony identity fraud, arguing error in (1) admitting ATM videos of defendant that were not properly authenticated, and (2) allowing lay-opinion testimony from an officer identifying defendant in the videos. The Court of Appeals found no error.
When defendant’s mother went missing in January 2022, the sheriff’s office began investigating her disappearance, and they eventually obtained records from Wells Fargo containing videos from ATMs where withdrawals were made from her account. These videos showed defendant making withdrawals, and later when defendant was apprehended, his mother’s credit and debit cards were found on his person. At trial, the State showed stills from these videos, and an officer testified as to the videos and identifying defendant as the person appearing in them. Defense counsel did not object at trial to the admission of these videos or the identification of defendant.
Beginning with (1), the Court of Appeals explained that Rule of Evidence 901 governed admitting the videos, and here defendant only challenged the admission of the still images from these videos. Although this was a novel question, the court rejected the challenge, noting the State laid adequate foundation for the video extractions and “that the trial court properly authenticated the ATM videos as admissible evidence because their derivative photos were ‘nothing more than a series of static images appearing at a given frame rate.’” Slip Op. at 8 (quoting United States v. Clotaire, 963 F.3d 1288 (2020)).
In (2), the court noted that Rule of Evidence 701 governed the lay testimony, and under State v. Collins, 216 N.C. App. 249 (2011), the officer needed some superior level of familiarity with the defendant to justify his testimony identifying the defendant or the testimony would be invading the province of the jury. The court concluded that the evidence here supported the familiarity required by Collins, as the officer “had interacted with Defendant on multiple occasions as part of that preexisting investigation” into his mother’s disappearance. Slip Op. at 10.
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