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State v. Locklear

Court of Appeals of North Carolina

May 1, 2018

STATE OF NORTH CAROLINA
v.
KELLY LOCKLEAR

          Heard in the Court of Appeals 21 February 2018.

          Appeal by defendant from judgments entered 2 May 2016 by Judge James G. Bell in Robeson County Nos. 11 CRS 6086-87 Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General M. Lynne Weaver, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S. Zimmer, for defendant.

          ARROWOOD, Judge.

         Kelly Locklear ("defendant") appeals from judgments entered on her convictions for obtaining property by false pretense and insurance fraud. For the following reasons, defendant is entitled to a new trial.

         I. Background

         On 10 October 2011, defendant was indicted by a Robeson County Grand Jury on charges of occupant or owner setting fire to a dwelling house, making a false report to a law enforcement officer or agency, insurance fraud, and obtaining property by false pretense. The charges stem from a fire at defendant's house on 5 March 2010 and defendant's ensuing insurance claims.

         Defendant's case was tried before a jury in Robeson County Superior Court beginning on 18 April 2016, the Honorable James G. Bell, Judge presiding. On 2 May 2016, the jury returned verdicts finding defendant not guilty of setting fire to a dwelling house and making a false report to a law enforcement officer and finding defendant guilty of obtaining property by false pretense and insurance fraud. The court entered orders on the not guilty verdicts and entered judgments on the guilty verdicts. For both convictions, the court determined mitigated sentences were justified. The court sentenced defendant to a term of 5 to 6 months for obtaining property by false pretense and suspended the sentence on condition that defendant be placed on supervised probation for 36 months. The trial court sentenced defendant to a consecutive term of 5 to 6 months for insurance fraud and suspended the sentence on condition that defendant be placed on supervised probation for 36 months. On 11 May 2016, defendant filed a pro se notice of appeal, followed by a pro se amended notice of appeal.

         II. Discussion

         On appeal, defendant challenges her convictions by raising three issues concerning the trial court's jury instructions and one issue concerning the trial court's response to a jury question. However, before reaching defendant's arguments, we must first address deficiencies in defendant's notices of appeal.

         Pertinent to this case, Rule 4 of the North Carolina Rules of Appellate Procedure provides that

[a]ny party entitled by law to appeal from a judgment or order of a superior or district court rendered in a criminal action may take appeal by . . . filing notice of appeal with the clerk of superior court and serving copies thereof upon all adverse parties within fourteen days after entry of the judgment or order . . . .

N.C. R. App. P. 4(a)(2) (2018). Rule 4 further provides

[t]he notice of appeal required to be filed and served by subdivision (a)(2) of this rule shall specify the party or parties taking the appeal; shall designate the judgment or order from which appeal is taken and the court to which appeal is taken; and shall be signed by counsel of record for the party or parties taking the appeal, or by any such party not represented by counsel of record.

N.C. R. App. P 4(b).

         In this case, there is nothing in the record to show that defendant served her pro se notices of appeal on the State. Furthermore, although defendant listed case numbers in the notices of appeal, defendant failed to indicate the judgments appealed from. Defendant has candidly acknowledged these deficiencies in a petition for writ of certiorari filed contemporaneously with her brief to this Court on 13 October 2017. Defendant requests that, if the deficiencies are fatal to her appeal, we allow the petition to reach the merits of her arguments.

         Our appellate rules provide that "[t]he writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action . . . ." N.C. R. App. P. 21(a)(1) (2018). The State acknowledges that this Court has discretion to allow defendant's petition to review the judgments entered 2 May 2016. In this instance, we exercise our discretion to allow defendant's petition and we review the merits of the appeal.

         A. Jury Instructions

         The first three issues raised by defendant concern the trial court's jury instructions. "It is the duty of the trial court to instruct the jury on all substantial features of a case raised by the evidence." State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546, 549 (1988). "[Arguments] challenging the trial court's decisions regarding jury instructions are reviewed de novo by this Court." State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009); see also State v. Barron, 202 N.C.App. 686, 694, 690 S.E.2d 22, 29, ("Whether a jury instruction correctly explains the law is a question of law, reviewable by this Court de novo."), disc. review denied, 364 N.C. 327, 700 S.E.2d 926 (2010). "The prime purpose of a court's charge to the jury is the clarification of issues, the elimination of extraneous matters, and a declaration and an application of the law arising on the evidence." State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973), cert. denied, 418 U.S. 905, 41 L.Ed.2d 1153 (1974). "[A] trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial." Id. "However, an error in jury instructions is prejudicial and requires a new trial only if 'there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.' " State v. Castaneda, 196 N.C.App. 109, 116, 674 S.E.2d 707, 712 (2009) (quoting N.C. Gen. Stat. § 15A-1443(a) (2007)).

         Moreover, "[a] party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires . . . ." N.C. R. App. P. 10(a)(2) (2018); see also State v. McNeil, 350 N.C. 657, 691, 518 S.E.2d 486, 507 (1999), cert. denied, 529 U.S. 1024, 146 L.Ed.2d 321 (2000).

In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is ...

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