IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-596
No. COA21-459
Filed 6 September 2022
Yadkin County, Nos. 18CRS51657; 18CRS51656
STATE OF NORTH CAROLINA
v.
MICHAEL LEONARD ADAMS, JR., and VANESSA PENA, Defendants.
Appeal by defendants from judgments entered on or about 18 March 2021 by
Judge Michael D. Duncan in Superior Court, Yadkin County. Heard in the Court of
Appeals 22 February 2022.
Attorney General Joshua H. Stein, by Assistant Attorneys General Ryan C. Zellar and Deborah M. Greene, for the State.
Michael E. Casterline, for defendant Michael Leonard Adams, Jr.
Gilda C. Rodriguez, for defendant Vanessa Pena.
STROUD, Chief Judge.
¶1 Defendants appeal from judgments entered upon jury verdicts finding them
each guilty of misdemeanor child abuse. Defendant Adams argues the trial court
erred (1) by denying his motion to dismiss at the close of all evidence; (2) by denying
his motion to reopen voir dire of a juror after that juror expressed a potential bias
toward defendants who do not testify on their own behalf; and (3) by ordering him to STATE V. ADAMS
Opinion of the Court
complete conditions of his probation while this appeal was pending. Defendant Pena
presents arguments for (1) and (2) above, but does not challenge the portion of the
trial court’s judgment ordering her to complete conditions of her probation while this
appeal was pending. We find the trial court committed no error as to Defendants’
motions to dismiss or motions to reopen voir dire but did err by ordering Defendant
Adams to complete the special conditions of his probation while his appeal was
pending. The case is remanded for resentencing as to Defendant Adams only.
I. Background
¶2 Defendants were tried on 1 May 2019 in Yadkin County District Court. Both
Defendants were found guilty of misdemeanor child abuse. Both appealed to the
Superior Court and were tried 15 March 2021.
¶3 During the unrecorded jury selection at the Superior Court trial, and after he
had been passed upon by the State and by defense counsel for both Defendants, but
before the jury was impaneled, one of the jurors, Juror Clark,1 raised his hand and
“indicated that he wanted to say something.” The rest of the jurors were dismissed
for the evening and Juror Clark was held back to speak to the trial court. Juror Clark
told the trial court he could not hear one of the questions, and Defendant Adams’s
counsel repeated the question:
The one about if they choose not to testify? Yes, sir. If --
1 A pseudonym. STATE V. ADAMS
the defendants have a choice not to testify in the trial. If they exercise that right and choose not to testify, do you believe that you can give the defendants a fair trial based on their choosing not to testify?
Juror Clark then indicated he thought both Defendants should be required to “answer
the questions themselves.” The trial court did not reopen voir dire, but examined
Juror Clark regarding his opinion on the Defendants’ rights not to testify, and told
Juror Clark he “cannot hold that against them if they choose not to testify.” After the
trial court’s questions and instructions, Juror Clark affirmed he understood the
Defendants have a right not to testify and that he could follow the law as instructed
by the trial court. Counsel for both Defendants made motions to reopen voir dire to
question Juror Clark; the trial court heard arguments and then elected to “give it
some thought overnight.”
¶4 The following morning, the trial court heard additional arguments by all
parties and brought Juror Clark back into the courtroom for additional examination.
After a lengthy instruction, and after Juror Clark again affirmatively responded that
he could follow the law as instructed by the trial court, the trial court denied
Defendants’ motions to reopen voir dire.
¶5 The trial proceeded, and only the State presented evidence. The State’s
evidence tended to show at approximately 6 p.m. on 21 September 2018 Detective
Ryan Preslar with the Yadkinville Police Department was “walking out of the police STATE V. ADAMS
department to go home” when he heard “screaming and hollering.” He “walked out
to the parking lot to look, and . . . [saw] a man in the back driver’s side door” of a
vehicle across the street, “behind the driver’s seat, half his body [was] in the car and
he [was] coming in and out.” Detective Preslar testified “[i]t was hard to tell . . . if he
was hitting somebody or jerking on something.” The vehicle was in the Sheriff’s Office
parking lot, across the street from the Yadkinville Police Department parking lot.
¶6 Detective Preslar radioed for help and ran toward the vehicle. As he
approached, he noticed “[Defendant] Adams had the child out of the vehicle. He had
[his arm] wrapped kind of around [the child’s] upper torso and arm and he’s pulling
in one direction and [Defendant] Pena had [the child] by the bottom half of his body,
his legs area and she’s pulling in the opposite direction.” Detective Preslar testified
the Defendants were “violent[ly]” pulling the child in opposite directions, because
“[t]hey were both wanting that child.” The child was “hollering, crying out[,]” and
appeared to be in pain. The “tug of war” continued for approximately 20 to 30 seconds
while Detective Preslar approached the vehicle, and “[w]hen [he] [got] within feet of
[the Defendants] they let go” of the child. Defendants did not drop the child, but
quickly put him down on his feet. At about this time Deputy Nathaniel Hodges from
the Yadkin County Sheriff’s Office arrived and the Defendants were separated.
Detective Preslar did not notice injuries on either Defendant or on the child, and the
child calmed down significantly after Detective Preslar separated the Defendants. STATE V. ADAMS
Detective Preslar noticed that the car seat in the car “was actually pulled from its
strapped-in position, and it was kind of set to the side.”
¶7 Deputy Hodges interviewed the Defendants. Defendant Adams stated “he just
wanted his child, that he was there to pick up their child . . . for a child custody
exchange.” Defendant Adams also told Deputy Hodges he was supposed to have
someone with him to supervise the child custody exchange, but he still attended the
custody exchange after his mother, the usual supervisor, could not attend. Defendant
Pena stated she was putting shoes on the child when “[Defendant] Adams approached
the vehicle and began trying to, in her words, rip the child out of the vehicle.”
Defendant Pena held on to the child and the “tug of war” ensued “due to the fact she
did not want [Defendant] Adams to take the child” because he was “irate.” Deputy
Hodges charged both Defendants with child abuse under North Carolina General
Statute § 14A-318.2 and arrested both Defendants. After Defendants were arrested,
DSS was contacted and took temporary custody of the child.
¶8 At the close of State’s evidence, both Defendants made motions to dismiss.
These motions were renewed at the close of all evidence. The motions were denied,
and the charges were submitted to the jury. The jury returned a guilty verdict for
each Defendant, and the trial court proceeded to sentencing. Both Defendants were
sentenced to serve 75 days of imprisonment, suspended for 18 months of supervised
probation. As one of the special conditions of probation, each Defendant was ordered STATE V. ADAMS
to “enroll and complete any coparenting classes.” In the written judgments, the trial
court noted each Defendant had entered notice of appeal in open court but ordered as
to each Defendant that “probation is to commence once the appeal decision is reached
but the Defendant is to enroll [and] complete the co-parenting classes while the
appeal is pending.” (Capitalization altered.) Both Defendants appeal.
II. Analysis
¶9 Defendant Adams contends (1) the State presented insufficient evidence to
convict him because the child suffered no injury and no substantial risk of injury was
created by his conduct; (2) “the trial court abused its discretion when it denied [his]
motion to reopen voir dire of Juror [Clark],” (capitalization altered), because good
reason existed to reopen voir dire; and (3) the trial court violated North Carolina
General Statute § 15A-1451(a)(4) when it ordered him to serve conditions of his
probation while his appeal was pending. Defendant Pena presents substantially the
same arguments for the first two issues. Defendant Adams alone asserts the trial
court erred by ordering him to complete the conditions of his probation during the
pendency of his appeal. Defendant Pena proposed this issue for review but did not
address this error in her brief and it has been abandoned. See N.C. R. App. P. 28(a)
(“Issues not presented and discussed in a party’s brief are deemed abandoned.”). We
will address each Defendant’s argument regarding denial of the motions to dismiss
separately. We will address their arguments regarding denial of the motion to re- STATE V. ADAMS
open voir dire together, and we will address Defendant Adams’s argument regarding
the special condition of his probation last.
A. Sufficiency of the Evidence
1. Standard of Review
¶ 10 This Court’s standard of review of a trial court’s ruling on a motion to dismiss
is well-settled:
A trial court’s denial of a defendant’s motion to dismiss is reviewed de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). On appeal, this Court must determine “whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant’s being the perpetrator[.]” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (citation omitted), cert. denied, 531 U.S. 890, 121 S. Ct. 213, 148 L.Ed.2d 150 (2000).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). Evidence must be viewed in the light most favorable to the State with every reasonable inference drawn in the State’s favor. State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 115 S. Ct. 2565, 132 L.Ed.2d 818 (1995). “Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal.” Smith, 300 N.C. at 78, 265 S.E.2d at 169.
State v. Watkins, 247 N.C. App. 391, 394, 785 S.E.2d 175, 177 (2016). “[T]he only
question before us . . . is whether a reasonable juror could have concluded that the
defendant was guilty based on the evidence presented by the State. If so, even if the
case is a close one, it must be resolved by the jury.” Id. at 396, 785 S.E.2d at 178 STATE V. ADAMS
(emphasis in original).
2. Analysis
¶ 11 Both Defendants were convicted under North Carolina General Statute § 14-
318.2. Section 14-318.2 provides in relevant part:
(a) Any parent of a child less than 16 year of age, or any other person providing care to or supervision of such child, who inflicts physical injury, or who allows physical injury to be inflicted, or who creates or allows to be created a substantial risk of physical injury, upon or to such child by other than accidental means is guilty of the Class A1 misdemeanor of child abuse.
N.C. Gen. Stat. § 14-318.2 (2018). “[T]he State must introduce substantial evidence
that the parent, by other than accidental means, either (1) inflicted physical injury
upon the child; (2) allowed physical injury to be inflicted upon the child; or (3) created
or allowed to be created a substantial risk of physical injury.” Watkins, 247 N.C. App.
at 395, 785 S.E.2d at 177. There is no dispute that Defendants are the parents of the
child or that the child is less than 16 years old, and the State only sought a conviction
on the substantial risk theory of misdemeanor child abuse. Therefore, the sole
element of misdemeanor child abuse in dispute is whether each Defendant “creat[ed]
or allow[ed] to be created a substantial risk of physical injury, upon or to such child
by other than accidental means . . . .” N.C. Gen. Stat. § 14-318.2; id.
a. Defendant Adams’s Motion to Dismiss
¶ 12 This Court has recognized a “paucity of cases applying” the substantial risk STATE V. ADAMS
prong of § 14-318.2. See Watkins, 247 N.C. App. at 395, 785 S.E.2d at 177-78.
Because “substantial risk of physical injury” is not defined by § 14-318.2, this Court
engages in a fact-specific inquiry to determine if such risk exists. See id. at 395-96,
785 S.E.2d 177-78. Defendant Adams argues “State v. Watkins . . . appears to [be]
the only precedential case where a parent was convicted of child abuse without proof
of some injury, but instead for merely creating a substantial risk of injury.” He also
argues Watkins is distinguishable from this case and the State has not put forth
substantial evidence Defendant Adams created a substantial risk of physical injury
to the child by other than accidental means. He argues that the short duration of the
incident cuts against any finding of a substantial risk. We hold there was sufficient
evidence to submit the case to the jury, and the trial court did not err in denying
Defendant Adams’s motion.
¶ 13 Defendant Adams appears to be correct that Watkins is the sole reported case
applying the “substantial risk” prong of § 14-318.2. In Watkins, the defendant parked
her car outside the Madison County Sheriff’s Office and left her 19-month-old son
buckled in his car seat while she went inside the Sheriff’s Office to leave money for
an inmate in the jail. Id. at 392, 785 S.E.2d at 176. The State’s evidence showed
when she was in the lobby, she could not see her car, which was parked about 46 feet
away from the front door. Id. A detective escorted the defendant out after she argued
with employees in the lobby and saw the child in the car. Id. at 392-393, 785 S.E.2d STATE V. ADAMS
at 176.
¶ 14 The defendant in Watkins testified in her own defense. Id. at 393, 785 S.E.2d
at 176. She testified the child was very warmly dressed in a “snowsuit . . . mittens,
boots, a toboggan, pants, and a sweater.” Id. She said the car had been running
before she arrived at the Sheriff’s Office with the heater on, and the car was “hotter
than blazes” when she got out. Id. She claimed she left the windows closed when she
went inside the Sheriff’s Office, where she believed, based on past experience, it would
only take “‘three or four minutes’ to purchase [a] calling card.” Id. at 393, 785 S.E.2d
at 177. She also claimed she could see the car from where she was standing in the
lobby. Id.
¶ 15 The Watkins Court, viewing the evidence in the light most favorable to the
State, analyzed the evidence as to substantial risk of physical injury in these
circumstances:
Here, viewing the evidence, as we must, in the light most favorable to the State with every inference drawn in the State’s favor, James, who was under two years old, was left alone and helpless—outside of Defendant’s line of sight— for over six minutes inside a vehicle with one of its windows rolled more than halfway down in 18–degree weather with accompanying sleet, snow, and wind. Given the harsh weather conditions, James’ young age, and the danger of him being abducted (or of physical harm being inflicted upon him) due to the window being open more than halfway, we believe a reasonable juror could have found that Defendant “created a substantial risk of physical injury” to him by other than accidental means. See N.C. STATE V. ADAMS
Gen. Stat. § 14–318.2(a).
Id. at 395-96, 785 S.E.2d at 178.
¶ 16 In addition to Watkins, Defendant Adams argues several unreported cases
from this Court are persuasive, even if they are not binding precedent, and they
illustrate what constitutes a “substantial risk of physical injury” in violation of § 14-
318.2. See, e.g., State v. Parker, 278 N.C. App. 606, 2021-NCCOA-389, ¶ 24
(unpublished) (“[D]riving at sixty (60) miles per hour with a car door open creates a
‘substantial risk of injury’ for any passengers, including children, in the vehicle.”);
State v. Miller, 276 N.C. App. 276, 2021-NCCOA-84, ¶ 16 (unpublished) (Where
defendant “‘exceeded the speed limit for approximately one minute’ before ‘sometimes
crossing the center line to pass pulled-over vehicles’ with Deputy Rae in pursuit with
his blue lights flashing”); State v. Thomas, 217 N.C. App. 198, 719 S.E.2d 254 (2011)
(unpublished) (exposure to 41 grams of cocaine and a loaded firearm); In re I.H., No.
COA09-244, 2009 WL 2139096 (N.C. App. July 7, 2009) (unpublished) (high speed
police chase resulting in accident where children were injured).
¶ 17 But the factual circumstances here Defendant Adams seeks to distinguish from
Watkins and the unreported cases are instead similar in relevant ways. In all the
cases, the potentially dangerous incidents were quite brief, just minutes, and in all
but one case the children involved were fortunately unharmed. The question is
whether the actions “created a substantial risk of physical injury” to the child by STATE V. ADAMS
“other than accidental means.” Based upon these cases, a “substantial risk of
physical injury” may arise in an incident lasting only moments, where the defendant
has intentionally engaged in the activity presenting a risk of physical harm to the
child and has exposed the child to the risk of injury—whether the child was exposed
to illicit substances, or exposed to severe weather conditions, or risk of abduction, or
in a speeding car driven in a manner creating a substantial risk of a crash. The
circumstances in which a “substantial risk of physical injury” vary from case to case,
based on the severity and length of the risky conduct, but presented a jury question
sufficient to survive a motion to dismiss.
¶ 18 Thus, while illustrative, these cases “do not resolve the issue presently before
us—that is, whether the State’s evidence here was sufficient to raise a jury question
regarding a violation of N.C. Gen. Stat. § 14-318.2(a) by Defendant.” Watkins, 247
N.C. App. at 396, 785 S.E.2d at 178. Close questions are questions that must be
resolved by the jury, and the question before us is “whether a reasonable juror could
have concluded that [both] defendant[s] [were] guilty based on the evidence presented
by the State.” Id. (emphasis in original). Here, the State’s evidence tended to show
Defendant Adams attended the custody exchange of the parties’ four-year-old son
without a court-ordered supervisor. Defendant Adams then became incensed, for
reasons undisclosed by the record, and attempted to forcibly remove the child from
the vehicle. He grabbed the child around the child’s upper torso and began to STATE V. ADAMS
violently pull the child out of the vehicle, which appears to have caused the child to
“holler” or “cry out” in pain. Given the fact the car seat also appeared to have been
“pulled from its strapped-in position[,]” a reasonable inference to be drawn from the
evidence is that Defendant Adams pulled hard enough to move the car seat out while
attempting to take the child. Then, for 20 to 30 seconds, Defendant Adams ignored
police instructions and engaged in a “tug of war” with Defendant Pena, with the child
serving as the “rope,” placing the child at risk of physical injury from the fight
between Defendants.
¶ 19 It is not difficult to conclude the child was at a substantial risk of being injured
in many ways during the “tug of war.” The evidence, viewed in the light most
favorable to the State, shows that Defendant Adams “created a substantial risk of
physical injury” to his child. Watkins, 247 N.C. App. at 395, 785 S.E.2d at 177. Many
of these injuries may occur very quickly, and Defendant Adams’s argument that the
short duration of the incident cuts against a finding of “substantial risk of physical
injury” is not persuasive. The evidence simply creates a question for the jury to
resolve as to whether the duration of the incident was long enough to create a
“substantial risk of physical injury.” During the struggle, the child could have been
dropped and suffered injury. The child could have been harmed by the mere act of
pulling the child in two directions. Defendant Adams had wrapped his arm around
the child’s upper torso, and the child’s neck or head could have been compressed or STATE V. ADAMS
contorted as a result of the struggle. If either parent lost their grip on the child, the
child could have been thrown to the ground by the force exerted by the other parent
and injured. And the record reflects that none of Defendant Adams’s conduct was
accidental. His attempts to wrest the child away from Defendant Pena were quite
intentional, even though he did not intend to harm the child. There was no indication
in Watkins or any of the unreported cases cited by Defendant Adams that the
defendants had any intention or desire of harming the children in those situations;
they intentionally engaged in risky activities in a time and manner that also placed
a child at risk of injury. The State presented substantial evidence Defendant
“create[d] or allow[ed] to be created a substantial risk of physical injury, upon or to
[his] child by other than accidental means” in violation of North Carolina General
Statute § 14-318.2. The trial court did not err by denying his motion to dismiss.
b. Defendant Pena’s Motion to Dismiss
¶ 20 Much of the evidence presented by the State as to Defendant Adams’s
culpability under § 14-318.2 is equally applicable to the prosecution of Defendant
Pena. Upon a de novo review of the evidence presented by the State, viewed “in the
light most favorable to the State[,]” Watkins, 247 N.C. App. at 394, 785 S.E.2d at 177
(quotation omitted), the State’s evidence was sufficient to show Defendant Pena
“created or allowed to be created a substantial risk of physical injury” to the child and
thus must be resolved by the jury. See id. at 395, 785 S.E.2d at 177. STATE V. ADAMS
¶ 21 The State’s evidence tended to show Defendant Pena was an equal participant
in the “tug of war” over the Defendants’ child. When Detective Preslar was
approaching the vehicle in the Sheriff’s Office parking lot, he observed Defendant
Pena with her arms around the “[m]iddle of the [child’s] legs.” As Detective Preslar
approached, Defendant Pena also ignored his instructions to “put the child down” and
continued to pull the child in the direction opposite Defendant Adams for
approximately 20 to 30 seconds. Additionally, although Defendant Adams was not
seriously injured, Defendant Adams told Detective Preslar that Defendant Pena
became violent in close proximity to the child during the physical struggle and “bit
[Defendant Adams] on the forearm and punched him in the face several times.”
Detective Preslar characterized Defendant Pena as pulling on the child “hard” or
“violent[ly].” Even though Defendant Adams “was supposed to be getting custody of
the child that day[,]” Defendant Pena resisted a cooperative custody exchange and
instead engaged in a violent physical struggle over possession of the child, starting
in the confines of a vehicle.
¶ 22 Defendant Pena cites State v. Noffsinger, 137 N.C. App. 418, 426, 528 S.E.2d
605, 611 (2000), and argues “‘a parent owes a special duty to her child which has long
been recognized by statute and by common law’ and that ‘a parent has a duty to take
affirmative action to protect her child and may be held criminally liable if she is
present when someone harms her child and she does not take reasonable steps to STATE V. ADAMS
prevent it.’” She frames the struggle over the child as “taking affirmative action to
protect her son from [Defendant] Adams, who arrived without the court ordered
custody [supervisor] and forcibly removed [the child] from her car, and [to] keep
[Defendant] Adams from driving away with [the child] in the erratic and dangerous
state in which he was in.” But Defendant Pena does not address another possible
interpretation of the evidence: that even though they met in the parking lot of the
Sheriff’s Office (and across the street from the Police Department), where she could
have quickly summoned an officer to assist if Defendant Adams was in an “erratic
and dangerous” state, she instead participated in an unreasonable struggle over
physical possession of the child with the child’s father. Instead of seeking help, she
took affirmative action that placed the child in danger by engaging in the “tug of war”
over him. Regardless, even though Defendant Pena “offered an innocent explanation
for [her] conduct,” the State’s evidence need not “‘rule out every hypothesis of
innocence.’” State v. Winkler, 368 N.C. 572, 582, 780 S.E.2d 824, 830 (2015) (quoting
State v. Thomas, 350 N.C. 315, 343, 514 S.E.2d 486, 503 (1999)). “[A] reasonable juror
could have concluded that the defendant was guilty based on the evidence presented
by the State.” Watkins, 247 N.C. App. at 396, 785 S.E.2d at 178 (emphasis in
original).
¶ 23 The State presented substantial evidence to submit to the jury the question of
whether Defendant Pena “create[d] or allow[ed] to be created a substantial risk of STATE V. ADAMS
physical injury, upon or to [her] child by other than accidental means” in violation of
North Carolina General Statute § 14-318.2. The trial court did not err by denying
Defendant Pena’s motion to dismiss.
c. Conclusion
¶ 24 Because the State presented substantial evidence of each element of
misdemeanor child abuse, see Watkins, 247 N.C. App. at 394, 785 S.E.2d at 177, “a
reasonable juror could have concluded that [both] defendant[s] [were] guilty based on
the evidence presented by the State.” Id. at 396, 785 S.E.2d at 178 (emphasis in
original). The trial court did not err by denying Defendants’ motions to dismiss.
B. Defendants’ Motions to Reopen Voir Dire
¶ 25 “In order for a defendant to show reversible error in the trial court’s regulation
of jury selection, a defendant must show that the court abused its discretion and that
he was prejudiced thereby.” State v. Rodriguez, 371 N.C. 295, 312, 814 S.E.2d 11, 23-
24 (2018) (quotation omitted). “Abuse of discretion results where the court’s ruling is
manifestly unsupported by reason or is so arbitrary that it could not have been the
result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523,
527 (1988); see also White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (“A
trial court may be reversed for abuse of discretion only upon a showing that its actions
are manifestly unsupported by reason . . . [or] upon a showing that [the trial court’s STATE V. ADAMS
decision] was so arbitrary that it could not have been the result of a reasoned
decision.”).
¶ 26 All parties agree North Carolina General Statute § 15A-1214 governs jury
selection. Section 15A-1214(g) provides:
(g) If at any time after a juror has been accepted by a party, and before the jury is impaneled, it is discovered that the juror has made an incorrect statement during voir dire or that some other good reason exists:
(1) The judge may examine, or permit counsel to examine, the juror to determine whether there is a basis for challenge for cause.
(2) If the judge determines there is a basis for challenge for cause, he must excuse the juror or sustain any challenge for cause that has been made.
(3) If the judge determines there is no basis for challenge for cause, any party who has not exhausted his peremptory challenges may challenge the juror.
N.C. Gen. Stat. § 15A-1214(g) (2018). Section 15A-1214(g) gives the court “leeway to
make an initial inquiry when allegations are received before a jury has been
impaneled that would, if true, establish grounds for reopening voir dire . . . .” State
v. Boggess, 358 N.C. 676, 683, 600 S.E.2d 453, 457 (2004). “As part of this initial
investigation, the judge may question any involved juror and may consult with
counsel out of the juror’s presence. Based on information thus developed, the judge
has discretion to reopen voir dire or take other steps suggested by the circumstances.” STATE V. ADAMS
Id.
¶ 27 Defendants argue there was “good reason . . . to challenge [Juror Clark] for
cause or, alternatively, to exercise a peremptory challenge[.]” (Capitalization
altered.) The State argues that even with good cause, “the trial court is permitted,
but is not required to reopen voir dire.” The trial court did not abuse its discretion,
and Defendants’ arguments are overruled.
¶ 28 Here, the trial court questioned Juror Clark after he offered his opinion that
he thought Defendants should “answer the questions themselves.” The trial court
sought to clarify Juror Clark’s opinion, then carefully instructed him “that [the
Defendants] have a right to testify if they wish and they have a right not to testify if
they wish, and you cannot hold that against them if they choose not to testify.” The
trial court stretched this examination over two days, allowing Juror Clark to think
on his opinion overnight before reexamining him the next morning. The trial court
also heard arguments from counsel on both days. The trial court “ha[d] discretion to
reopen voir dire or take other steps suggested by the circumstances[]” after its initial
inquiry, Boggess, 358 N.C. at 683, 600 S.E.2d at 457, and ultimately chose to question
Juror Clark without reopening voir dire.
¶ 29 Both Defendants cite our decision in Bond. See State v. Bond, 345 N.C. 1, 478
S.E.2d 163 (1996). They argue a juror’s equivocal statements as to the death penalty
qualify as “good reason” to reopen voir dire, as were the juror’s statements in Bond, STATE V. ADAMS
see id. at 20, 478 S.E.2d at 172, and Juror Clark’s statement here is a similarly “good
reason” to reopen voir dire. But Bond is distinguishable. In Bond, the trial court
reopened the prosecution’s voir dire after the juror appeared to have changed his
mind regarding the death penalty between the State’s and the defense’s voir dire. Id.
at 18-19, 478 S.E.2d at 171-72. Voir dire was still ongoing at the time of the trial
court’s ruling, and the juror had not yet been passed upon by both the prosecution
and the defense. Id. Here, as far as the record reflects, Juror Clark did not make
equivocal statements until after jury selection was completed.2 Juror Clark made a
single statement after both parties had passed on him and he had been seated in seat
2. Bond is not controlling. But, more importantly, even if equivocal statements like
those by the juror in Bond or Juror Clark’s statements volunteering an opinion can
constitute “good cause” to reopen voir dire, the decision to reopen voir dire is still
squarely within the discretion of the trial court. See N.C. Gen. Stat. § 15A-1214(g);
Rodriguez, 371 N.C. at 312, 814 S.E.2d at 23-24; see also Bond, 345 N.C. at 19-20, 478
S.E.2d at 172 (“This Court has previously interpreted the language of N.C.G.S. § 15A-
1214(g) and found that the decision to reopen voir dire rests in the trial court’s
discretion. . . . [A]bsent a showing of abuse of discretion, the trial court’s decision to
reopen the examination of prospective juror Robbins will not be disturbed.”). We
2Because jury selection was unrecorded, our record is limited to statements made after voir dire, but there is no contention the issue arose earlier. STATE V. ADAMS
must still review the trial court’s decision not to reopen voir dire for an abuse of
discretion.
¶ 30 After examination of Juror Clark on the first day, the court expressed concerns
about reopening voir dire:
We’ve already passed on jurors. If you didn’t ask them that question, you know that -- it concerns me obviously that you’re going to have other jurors stepping up saying the same thing. That’s the attorneys’ responsibility from both sides to ask what questions they feel are necessary to get a picture of whether or not, in their own mindset a juror can be fair and impartial to both sides.
I have great concerns about just starting back again with number two, and then even greater concerns if we were to do that in front of all the other jurors. It just opens a Pandora’s box, and I’m not going to allow that to happen. I’ll hear any further arguments in the morning if you want to go get me some case law or if you want to do a little research and you feel like you need to do a brief, any of those things are acceptable to the court.
The trial court reasoned that reopening voir dire would have a negative impact on
the orderly disposition of Defendants’ charges, possibly resulting in a lengthy delay,
and instead opted to perform the extensive examination of Juror Clark, giving him
overnight to continue to consider the trial court’s instructions, to determine if his
opinion would prevent him from serving as a fair and impartial juror. The trial court
also allowed parties an additional opportunity to develop their arguments and be
heard the next day. At the end of the first day, the trial court did not doubt Juror STATE V. ADAMS
Clark’s ability to remain fair and impartial:
The Court was satisfied when [Juror Clark] left yesterday that regardless of how he felt about the law, whether he liked it or disliked it, that he indicated that he would follow and obey the law as the Court instructed him.
And, after hearing additional arguments from counsel the next day, the trial court
was still “satisfied with the answer of [Juror Clark]” and denied both Defendants’
motions.
¶ 31 “A trial court may be reversed for abuse of discretion only upon a showing that
its actions are manifestly unsupported by reason . . . [or] upon a showing that [the
trial court’s decision] was so arbitrary that it could not have been the result of a
reasoned decision.” White, 312 N.C. at 777, 324 S.E.2d at 833. The trial court in this
case denied Defendants’ motions after inquiring into Juror Clark’s opinion and only
after determining Juror Clark would be able to follow the law. Defendants’ motions
were denied because the trial court was concerned that reopening voir dire would
“open[] a Pandora’s box” and cause delays during Defendants’ trial, Defense counsel
for both parties had already passed on Juror Clark, and Juror Clark gave repeated
affirmations that he understood and could apply the law. The trial court came to “a
reasoned decision” when it denied Defendants’ motions. Id.
¶ 32 We do not need to reach Defendants’ alternative argument that, “if voir dire of
[Juror Clark] had been reopened and the trial court did not dismiss him for cause, STATE V. ADAMS
[Defendants] could have used a peremptory challenge to remove him[,]” because the
trial court did not abuse its discretion by refusing to reopen voir dire. See N.C. Gen.
Stat. § 15A-1214(c)-(f) (2021) (establishing that peremptory challenges may only be
exercised while voir dire is open). Because the trial court did not abuse its discretion
by denying Defendants’ motions after examining Juror Clark without reopening voir
dire, the trial court committed no error and did not violate § 15A-1214(g).
C. Defendant Adams’s Conditions of Probation
¶ 33 “An alleged error in statutory interpretation is an error of law, and thus our
standard of review for this question is de novo.” State v. Skipper, 214 N.C. App. 556,
557, 715 S.E.2d 271, 272 (2011) (quoting Armstrong v. N.C. State Bd. of Dental
Examiners, 129 N.C. App. 153, 156, 499 S.E.2d 462, 466 (1998)).
¶ 34 Defendant Adams asserts the trial judge violated North Carolina General
Statute § 15A-1451(a)(4) by “order[ing] him to enroll in co-parenting classes and serve
the active portion of his split sentence before the appeal was decided.” The State
concedes that this was an error. After a review of the judgment, we agree the trial
court did err by ordering Defendant Adams to fulfill conditions of his probation while
his appeal was pending. Although the trial court’s judgment is identical as to
Defendant Pena, she failed to argue this issue on appeal and it has been abandoned.
See N.C. R. App. P. 28(a).
¶ 35 North Carolina General Statute § 15A-1451(a)(4) provides: “(a) When a STATE V. ADAMS
defendant has given notice of appeal: . . . (4) Probation or special probation is stayed.”
N.C. Gen. Stat. § 15A-1451(a)(4) (2018). Defendant Adams gave notice of appeal in
open court after the trial court suspended his sentence and ordered the co-parenting
classes as conditions of probation. Then, the trial court included the following in its
written judgment: “Probation is to commence once the appeal decision is reached but
the Defendant is to enroll [and] complete the co-parenting classes while the appeal is
pending . . . .” (Capitalization altered and emphasis added.) Because Defendant
Adams’s probation was stayed by North Carolina General Statute § 15A-1451 upon
his notice of appeal, the trial court erred when it ordered Defendant Adams to
complete conditions of his probation while his appeal was pending. We remand for
resentencing.
III. Conclusion
¶ 36 We conclude the trial court did not err by denying Defendants’ motions to
dismiss and motions to reopen voir dire of Juror Clark. We also conclude the trial
court erred by ordering Defendant Adams to complete his probation while his appeal
was pending. The case is remanded for resentencing as to Defendant Adams only.
NO ERROR IN PART; REMANDED IN PART.
Judges ARROWOOD and WOOD concur.