in the Court of Appeals 21 February 2018.
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.
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.
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.
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.
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
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).
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
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.
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)).
"[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 ...