In State v. Golder, 79PA18, filed 3 April 2020, the Supreme Court of North Carolina provided helpful guidance on a vexing issue relating to error preservation: Does a general motion to dismiss preserve for appellate review arguments relating to insufficiency of the evidence? At the same time, the Court resolved a split on the issue in the jurisprudence of the Court of Appeals.
The case arose out of shenanigans in the office of the Wake County Clerk of Court. While the details of the scheme are not critical, the Reader’s Digest version is that defendant Golder conspired with an employee in the Clerk’s office who would enter unauthorized electronic orders setting aside court orders forfeiting bail bonds. As a result, defendant, who was an unlicensed bail bondsman, did not have to cover the forfeited bonds. When the ruse was discovered, defendant was charged with obtaining by false pretenses property exceeding $100,000 in value, accessing a government computer, altering court records, and performing bail bonding without a license.
The case went to trial. At the close of the State’s evidence, defendant moved through counsel to dismiss “several…if not all” of the charges against him. Defendant did not specifically argue that the State failed to present sufficient evidence that he aided and abetted several of the charges. As to the false pretenses charge, defendant argued that the State’s evidence was insufficient in that it did not prove either that defendant obtained a thing of value or that the value was at least $100,000.
The trial court denied the motion to dismiss and defendant presented evidence on his own behalf. At the close of all the evidence, defendant renewed his motion to dismiss based upon sufficiency of the evidence. Although defendant reasserted several of his prior arguments, he did not repeat the earlier contention that the State had failed to prove he had received a thing of value. The trial court again denied the motion and the jury returned verdicts of guilty.
On appeal to the Court of Appeals, defendant argued (among other things) that the State had failed to present sufficient evidence that he had obtained a thing of value and also had failed to present sufficient evidence to support aiding and abetting. The Court of Appeals concluded that defendant had waived both these arguments for appellate review because he had failed to argue specifically the aiding and abetting issue at the close of the State’s evidence and also had failed to argue both these issues at the close of all the evidence.
On discretionary review, the Supreme Court modified and affirmed, leaving defendant’s convictions in place but holding that the Court of Appeals incorrectly held that both arguments had not been preserved for appellate review. The Court began its analysis by noting that, in the criminal context, the preservation requirements for arguments relating to insufficiency of the evidence are found in Rule of Appellate Procedure 10(a)(3). Unlike Rules of Appellate Procedure 10(a)(1) and (a)(2), Rule 10(a)(3) does not require a criminal defendant to state specific grounds in support of a motion to dismiss for insufficiency of the evidence. The Court set out a straightforward rule for the criminal bar: Under Rule of Appellate Procedure 10(a)(3), a defendant “preserves all sufficiency of the evidence issues for appellate review simply by making a motion to dismiss the action at the proper time.” Because defendant had made a timely general motion to dismiss, his arguments were preserved for appellate review, even though he had anot made specific arguments in support of his general motion.
The Supremes observed that the Court of Appeals improperly relied on one of its own opinions, State v. Walker, 252 N.C. App. 409, 413, 798 S.E.2d 529, 532 (2017) to “erroneously narrow the scope of review preserved by a defendant’s motion to dismiss.” In Walker, the Court of Appeals trifurcated motions to dismiss into (1) global motions, (2) general motions, and (3) specific motions, each of which was subject to a different scope of review. The Supreme Court held that this process was inconsistent with the plain language of Appellate Rule 10(a)(3).
In Golder, we see the Supreme Court exercising two of its major responsibilities. First, it provided information and guidance to the state’s criminal bar. Criminal defense attorneys live in fear of inadvertently waiving or failing to preserve viable issues for appellate review. As Beth and Matt’s treatise notes, making proper and timely motions to dismiss in the pre-Golder world required trial counsel to remember numerous traps and take numerous steps, many of which did not appear consistent with the language of Appellate Rule 10(a)(3) or Supreme Court precedent. See Elizabeth Brooks Scherer & Matthew Nis Leerberg, North Carolina Appellate Practice and Procedure, § 4.06[a][iii] [General Versus Specific Motions to Dismiss in Criminal Trials]. Golder gives welcome assurance that sufficiency issues can be preserved without resort to Talmudic interpretation of the category into which the objection falls.
Second, the Supreme Court is both bringing consistency to the State’s jurisprudence and fulfilling its constitutional role as the final word on appellate procedures. The Court of Appeals, with more cases than you can say grace over and fifteen judges who infrequently (!) sit as one, understandably finds itself issuing inconsistent opinions on occasion. For instance, compare Walker with the near-contemporaneous State v. Stroud, 252 N.C. App. 200, 797 S.E.2d 34 (2017) (“We are satisfied that Defendant’s” post-verdict dismissal motion under 15A-1227(a)(3) “standing alone, was sufficient to properly preserve this issue for our review.”) Golder tells the bench and bar which line of opinions to follow.
Finally, civil practitioners take heed: Golder and Rule of Appellate Procedure 10(a)(3) apply only to insufficiency of the evidence arguments made in the criminal context. In civil cases, the parallel error-preservation requirements are found in Rules of Civil Procedure 50 and 59, and Rule of Appellate Procedure 10(a)(1). See Scherer & Leerberg, supra, § 4.03[b] [Motions for Directed Verdict and Judgment Notwithstanding the Verdict in Civil Jury Trials].
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