In re: D.R.J.
No. COA23-671
New Hanover County
20 August 2024
Summary of the Case: In July of 2021, juvenile petitions were filed alleging that “David” was delinquent for the commission of the offenses of felony incest, felony second-degree forcible rape, misdemeanor sexual battery, and felony crime against nature. The allegations arose out of conduct with his sister. David was 15 years old at the time of the offenses. During the adjudicatory hearing in August of 2022, the Court found David responsible for three of the petitions and entered disposition in December of 2022. The terms of disposition included supervised probation and an order to “cooperate with placement in a residential treatment facility for sex offense specific treatment.” Upon appeal, the sufficiency of evidence of the element of force was challenged.
Issues Affecting Youth: What is the standard for determining whether evidence of force is sufficiently presented by the State in sexual battery cases?
“Our Supreme Court recently addressed the quantum of evidence required to satisfy the force element in the offense of sexual battery. In re: J.U., 384 N.C. at 625, 887 S.E.2d at 864. ‘[T]he requisite force may be established either by actual, physical force or by constructive force in the form of fear, fright, or coercion. . . . Although the term 'by force' is not defined in the relevant statutory scheme,’ the term ‘physical force’ has been determined to ‘mean[ ] force applied to the body.’ The element is present ‘if the defendant uses force sufficient to overcome any resistance the victim might make[.]’ Of particular relevance to the present case is the Supreme Court's conclusion that ‘common sense dictates that . . . one cannot engage in nonconsensual sexual contact with another person without the application of some 'force,' however slight.’ Because the identical phrase ‘by force and against the will of the other person’ is used in both statutes, we apply the Supreme Court's well-reasoned analysis regarding the use of force in sexual battery cases to the second-degree forcible rape petition as well.”
In this case, testimony was solicited that the sister said “no,” told David to “stop,” and tried to leave the room, which the Courts found to be adequate evidence of force.
Of note in this case, the trial attorney did not renew his motion to dismiss at the close of the State’s evidence and thus loses the right to argue the issue on appeal. The Court of Appeals also did not entertain an IAC argument in this regard. Defenders should take note to renew objections and motions at all appropriate stages of a hearing; the Court of Appeals will look for any opportunity to decline to hear an issue or a case.
State v. McCord
No. COA23-915
Cleveland County
17 September 2024
Summary of the Case: Defendant was 16 years old at the time he was charged with first degree murder in 1991. He was sentenced to life without parole (LWOP). After the decision in Miller issued, Defendant was entitled to a resentencing hearing, where the Court resentenced the Defendant to LWOP. Defendant appealed the resentencing decision, arguing three issues: 1) the judge in a resentencing hearing may not make determinations of credibility of witnesses during the original trial to support his sentencing decision, 2) the resentencing judge abused its discretion in weighing mitigating evidence and applying mitigating factors, and 3) North Carolina’s Miller statute is unconstitutional on its face, and that a sentence of LWOP is unconstitutional for juvenile offenders.
Issues Affecting Youth: The above issues were addressed by the appellate court as follows:
“We conclude that the judge in a Miller resentencing hearing, rather than a jury, may make credibility findings regarding the evidence offered at the trial to support his sentencing decision. In so holding, we are persuaded by the following: The United States Supreme Court's holding in Miller states that ‘a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible punishment for juveniles.’ . . . Also, our Miller statute provides that ‘[t]he order adjudging the sentence shall include findings on the absence or presence of any mitigating factors and such other findings as the court deems appropriate to include in the order.’ Further, the Miller statute provides the matter may be heard by a judge other than the judge who presided at trial.”
The appellate court did not find abuse of discretion by the resentencing court of the mitigation evidence and factors, and thoroughly recounted each factor and piece of evidence presented within the body its opinion.
Finally, the court wrote about 3 sentences to dismiss the argument, stating that the NC Supreme Court has previously sustained the constitutionality of the Miller statute as well as LWOP sentences.
State v. Slade
No. COA23-91157
Guilford County
17 September 2024
Summary of the Case: Defendant was convicted at trial of two counts of first-degree murder, five counts of discharging a firearm into an occupied dwelling, and one count of discharging a weapon into an occupied vehicle. The trial court sentenced Defendant to two consecutive life sentences with the possibility of parole for the murder charges, two consecutive terms of 66 to 91 months and 24 to 41 months for the other felonies. Through appeals processes, the sentence(s) were modified, resulting in a final sentence of 55.5 years before eligibility for parole, but the issue of whether any of the sentences constituted a de facto LWOP sentence was not reached.
Issues Affecting Youth: Do cumulative sentences amounting to 55.5 years amount to a de facto LWOP sentence? Yes, they do.
“In his resentencing, Defendant was sentenced essentially for five felonies: namely, two counts of felony murder and three other felonies. He received two life with parole sentences for the felony murder convictions. The three other felonies were consolidated into a single judgment, whereby Defendant was sentenced to 66 to 92 months. The trial court ordered all three sentences to run consecutively, such that Defendant would not be eligible for parole for 55 1/2 years. . . .Based on Kelliher, the consecutive sentences amount to a de facto life sentence, as the time before which Defendant would be eligible for parole exceeds 40 years. And because the trial court essentially found Defendant not to be incorrigible, the sentence was unconstitutional.”
The Court goes on to order that the two life sentences for the murder charges be served concurrently (reversing the trial court’s order that they be served consecutively), and remand the other felonies for reconsideration of the sentence in the trial court’s decision so long as the aggregate sentence for all charges does not exceed 40 years.
In re: T.O.C.
No. COA24-218
Burke County
15 October 2024
Summary of the Case: Petitions were filed against the youth for simple assault and injury to personal property arising out of an incident in which the youth ran away from home and then was apprehended by family members. At the adjudicatory hearing, the youth asserted self-defense, but the Court found the youth responsible on the simple assault petition but dismissed the injury to personal property petition as it believed the State had not met its burden at the close of all evidence. A Level 1 disposition was entered and the youth was placed on probation for 6 months with special conditions including a determination of parental physical custody. The Court’s findings in the disposition order indicated the court had received, considered, and incorporated by reference the contents of the predisposition report, risk assessment, and needs assessment.
Issues Affecting Youth: This case is another example of the remand of a case for failure to make sufficient findings of fact in the disposition order. “Respondent argues the trial court erred by failing to make sufficient findings of fact in its dispositional order because it failed to consider each of the factors listed in N.C. Gen. Stat. § 7B-2501(c). Additionally, Respondent argues the trial court did not make any findings to support entering a new custody order. We agree with Respondent that the factors were not appropriately addressed in the findings of fact, and there were no findings to support entering a new custody order. We remand for the trial court to consider the five factors set forth in N.C. Gen. Stat. § 7B-2501(c) and to make findings to support entering a new custody order.”
As an additional matter, the appellate court indicated that a youth escaping or running away from home is essentially the instigator of the event such that physical apprehension of the youth does not give rise to the right of the youth to defend himself.
UPCOMING CLE TRAININGS