Yesterday, the Court of Appeals published an opinion serving as a reminder that attorneys must always be mindful of preserving their trial court arguments for appeal. In State v. Walker, the Court addressed an appeal from judgments convicting the Defendant of three counts of assault with a deadly weapon with intent to kill inflicting serious injury (acronymed “AWDWWIKISI” in the opinion) and one count of attempted first degree murder.  Defendant argued on appeal that the State had failed to present sufficient evidence to support the intent element of each of the four convictions.

The Court dismissed Defendant’s appeal on the basis that he had failed to preserve his appellate arguments. In explaining its ruling, the Court of Appeals noted that North Carolina courts have long held that parties are not permitted to “swap horses” between the trial court and appellate court by arguing a theory or disputing a charge on appeal that was not raised before the trial court. Here, however, Defendant had raised insufficient evidence arguments before the trial court.  So why the dismissal?

The issue, as explained by Judge Inman, is that the “swapping horses” rule is not limited to situations when a party raises a whole new theory or disputes an entirely new charge on appeal. The rule also prevents a party from making an argument about a specific element of a claim that was not made before the trial court.  For example, arguing at the trial court that the State failed to present sufficient evidence of one element of an AWDWWIKISI charge, but then arguing on appeal that the State presented insufficient evidence of a different element of the same charge, is prohibited–and this is exactly what happened in Walker.

In dismissing the appeal, the Court highlighted Defendant’s argument at trial that there was insufficient evidence specifically based upon the severity of the victims’ injuries and noted that Defendant had at no time presented a general challenge to the sufficiency of evidence as to all elements of each offense.  Instead, the argument on the specific element was renewed at the close of evidence.  Because no general objection was made, either at the close of the State’s evidence or at the close of all evidence, the Court of Appeals held that Defendant had failed to preserve his argument.

Note, however, that the Court of Appeals has allowed appeals in which attorneys make both specific arguments as to certain elements of an offense but also a general motion that preserves arguments with respect to all elements of the offense. See, e.g., State v. Pender.  While this tactic may seem to elevate form over substance, trial attorneys must remember that specifically targeted motions during trial may limit them on appeal, and plan accordingly.

–Zack Dawson