State v. Walker

798 S.E.2d 529, 252 N.C. App. 409, 2017 N.C. App. LEXIS 173, 2017 WL 1055664
CourtCourt of Appeals of North Carolina
DecidedMarch 21, 2017
DocketCOA16-109
StatusPublished
Cited by13 cases

This text of 798 S.E.2d 529 (State v. Walker) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Walker, 798 S.E.2d 529, 252 N.C. App. 409, 2017 N.C. App. LEXIS 173, 2017 WL 1055664 (N.C. Ct. App. 2017).

Opinion

INMAN, Judge.

*409 Michael Todd Walker ("Defendant") appeals from judgments entered on 19 June 2015 convicting him of, inter alia , two counts of assault with *410 a deadly weapon with intent to kill inflicting serious injury upon K.D. 1 , assault with a deadly weapon with intent to kill inflicting serious injury upon D.C., and attempted first degree murder of K.D. Defendant asserts that the State failed to present sufficient evidence to support the intent elements of each of these four convictions. After careful review, we hold Defendant failed to preserve his arguments before the trial court, and affirm his convictions, dismissing Defendant's appeal.

Procedural History

Defendant was indicted on thirty-four counts, including three counts of assault with a deadly weapon with intent to kill inflicting serious injury ("AWDWWIKISI"), and one count of attempted first degree murder. After waiving his right to a jury trial, Defendant *530 was convicted on the above mentioned charges as well as twenty-six of the remaining thirty charges. The trial court consolidated the convictions and sentenced Defendant to three consecutive life terms without the possibility of parole.

Defendant timely appealed.

Analysis

As an initial matter, the State challenges Defendant's preservation of his arguments on appeal. Specifically, the State asserts that Defendant failed to challenge the sufficiency of the evidence as to the intent elements of the four challenged convictions before the trial court, and therefore did not preserve those arguments for appellate review. We agree.

To preserve an issue for appellate review, "a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C. R. App. P. 10(a)(1) (2015). Rule 10(a)(3) of the North Carolina Rules of Appellate Procedure provides further that

[i]n a criminal case, a defendant may not make insufficiency of the evidence to prove the crime charged the basis of an issue presented on appeal unless a motion to dismiss the action, or for judgment as in case of nonsuit, is made at trial. If a defendant makes such a motion after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, defendant's motion for dismissal or judgment in *411 case of nonsuit made at the close of State's evidence is waived. Such a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.
A defendant may make a motion to dismiss the action, or for judgment as in case of nonsuit, at the conclusion of all the evidence, irrespective of whether defendant made an earlier such motion. If the motion at the close of all the evidence is denied, the defendant may urge as ground for appeal the denial of the motion made at the conclusion of all the evidence. However, if a defendant fails to move to dismiss the action, or for judgment as in case of nonsuit, at the close of all the evidence, defendant may not challenge on appeal the sufficiency of the evidence to prove the crime charged.

N.C. R. App. P. 10(a)(3).

Our courts have long held that "where a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount in the appellate courts." State v. Holliman , 155 N.C.App. 120 , 123, 573 S.E.2d 682 , 685 (2002) (internal quotation marks and citations omitted). This "swapping horses" argument historically has applied to circumstances in which the arguments on appeal were grounded on separate and distinct legal theories than those relied upon at the trial court, or when a sufficiency of the evidence challenge on appeal concerns a conviction different from a charge challenged before the trial court. See id. , 155 N.C.App. at 123-24 , 573 S.E.2d at 685-86 (arguing before the trial court that the defendant's confession was coerced, while arguing on appeal that the defendant's seizure was improper for lack of probable cause); State v. Baldwin , 117 N.C.App. 713 , 717, 453 S.E.2d 193 , 195 (1995) (arguing double jeopardy concerns at trial, while arguing on appeal a variance between the indictment and the proof offered at trial); State v. Willams , 209 N.C.App. 757 , 710 S.E.2d 707 , 2011 WL 693281 *1, *3, 2011 N.C. App. LEXIS 339 *1, *7-9 (Mar. 1, 2011) (unpublished) (holding the defendant did not preserve a challenge to the sufficiency of the evidence for a possession of a firearm by a felon charge, when at trial the defendant argued only that there was insufficient evidence for a first-degree kidnapping charge).

In State v. Chapman , this Court applied the "swapping horses" rule to a scenario in which the defendant argued before the trial court that the State presented insufficient evidence as to one element of a charged offense, and on appeal asserted the State presented insufficient evidence as to a different element of the same charged offense.

*412 --- N.C.App. ----, ----, 781 S.E.2d 320

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Cite This Page — Counsel Stack

Bluebook (online)
798 S.E.2d 529, 252 N.C. App. 409, 2017 N.C. App. LEXIS 173, 2017 WL 1055664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-walker-ncctapp-2017.