Follow the rules. It’s a straightforward concept, but one that can sometimes be inadvertently overlooked. And while we ordinarily blog here about civil appeals, occasionally there is a holding in a criminal appeal that has universal applicability and is beneficial to civil and criminal appellate practitioners alike. Such was the case last week in the Court of Appeals’ Opinion in State v. Dinan, an appeal of criminal convictions. What is noteworthy about the Court’s holding from a practical standpoint is that the Court deemed Appellant’s first issue on appeal abandoned for failure to follow portions of Rule 28 of the North Carolina Rules of Appellate Procedure. First, the Appellant violated Rule 28(b)(4) because he failed to reference a statute that would provide for appellate review. Rule 28(b)(4) states:

A statement of the grounds for appellate review. Such statement shall include citation of
the statute or statutes permitting appellate review. When an appeal is based on Rule
54(b) of the Rules of Civil Procedure, the statement shall show that there has been a final
judgment as to one or more but fewer than all of the claims or parties and that there has
been a certification by the trial court that there is no just reason for delay. When an
appeal is interlocutory, the statement must contain sufficient facts and argument to
support appellate review on the ground that the challenged order affects a substantial

While the Court did not reject the appeal on this basis, Judge Elmore stated “we urge defense counsel and all counsel to be mindful of our Rules of Appellate Procedure.”

However, when the Court moved on to the merits of Appellant’s first argument, an additional violation of Rule 28 was dispositive. The Appellant argued that the trial court erred in admitting certain testimony regarding “prior bad acts.” However, the Court noted that it was unable to address that argument because the appellant offered “no clear or reasoned argument in support of his position as required by Rule 28(b)(6).” That rule reads:

An argument, to contain the contentions of the appellant with respect to each issue
presented. Issues not presented in a party’s brief, or in support of which no reason or
argument is stated, will be taken as abandoned.

The argument shall contain a concise statement of the applicable standard(s) of review
for each issue, which shall appear either at the beginning of the discussion of each issue
or under a separate heading placed before the beginning of the discussion of all the issues.

The body of the argument and the statement of applicable standard(s) of review shall
contain citations of the authorities upon which the appellant relies. Evidence or other
proceedings material to the issue may be narrated or quoted in the body of the argument,
with appropriate reference to the record on appeal, the transcript of proceedings, or

The Court noted that the Appellant did not cite to the testimony that he was alleging was admitted in error, and that while the Court could assume what testimony the Appellant was referring to, “it is not this Court’s duty to craft defendant’s argument for him.” Thus, the Court ruled that the Appellant had abandoned his first argument on appeal.

The lesson to be taken away from this? Follow the rules.

-Patrick Kane