Matt blogged last week on Doe v. City of Charlotte, in which we were given multiple lessons in both how to and how not to handle an appeal. Authoring Judge Dietz’s pre-bench experience as an appellate practitioner shows.
This month, we were also treated to State v. Smith (No 119PA18, filed 14 August 2020), a helpful opinion from the Supreme Court detailing an aspect of issue preservation in criminal cases that the Court addressed earlier this year in State v. Golder, 374 N.C. 238, 839 S.E.2d 782 (2020), and about which I blogged.
In Smith, as often in cases with important or useful procedural aspects, the underlying facts are not particularly critical. The defendant worked at Knightdale High School in Wake County. Though not certified, he was employed as an In-School Suspension teacher and a Physical Education teacher.
The defendant was charged with sexual activity by a teacher with a student, in violation of North Carolina General Statute § 14-27.7. The issue on appeal was whether or not the defendant was a “teacher” under that statute. The Supreme Court affirmed the Court of Appeals’ finding that he was, but first addressed a significant error preservation issue.
At trial, the defendant argued both at the conclusion of the State’s evidence and at the conclusion of all the evidence that his case should be dismissed on the basis of insufficient evidence. Specifically, the defendant contended that the evidence was inconsistent and contradictory. “There’s been conflict in the victim’s own testimony. Based on that we would renew our Motion to Dismiss.” The trial court denied the motion and the jury convicted defendant.
On appeal, defendant argued to the Court of Appeals that the State’s evidence failed to establish that he was a “teacher” as that term is used in the statute. That court observed that the defendant’s contention about the definition of the term was new and that defendant’s sufficiency argument to the trial court had been limited to contradictions in the evidence. Concluding that the defendant’s theory about his status as a teacher had not been preserved, the Court of Appeals, dismissed those arguments and found no error in the defendant’s conviction.
The Supreme Court allowed discretionary review and modified and affirmed the Court of Appeals’ decision. After noting that the Court of Appeals opinion was issued before Golder was released, the Supreme Court held that under Rule of Appellate Procedure 10(a)(3), all issues relating to sufficiency of the evidence are preserved “simply by making a motion to dismiss the action at the proper time.” Accordingly, even though trial counsel explicitly had limited his motion to dismiss argument to a specific perceived weakness in the State’s evidence that the reviewing court found unpersuasive, the defendant’s motion to dismiss was adequate to raise and preserve additional sufficiency issues that had not been presented below.
This holding and Golden are good news for criminal appellate practitioners. Just as Doe v. City of Charlotte identified an “easy workaround” for a potential Civil Rule 54(b) problem, Smith and Golder have relieved criminal trial practitioners of having to jump through multiple hoops to preserve sufficiency of the evidence arguments for appellate review.