State v. Leopard

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance with

the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-244

Filed 4 June 2025

Stanly County, Nos. 21CRS000265-830, 21CRS000268-830, 21CRS000269-830

STATE OF NORTH CAROLINA

v.

JAMES MORGAN LEOPARD

Appeal by Defendant from judgment entered 6 April 2023 by Judge Jonathan

Wade Perry in Stanly County Superior Court. Heard in the Court of Appeals 25

September 2024.

Attorney General Jeff Jackson, by Special Deputy Attorney General Mary L.

Lucasse, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katherine

Jane Allen, for Defendant-Appellant.

CARPENTER, Judge.

James Morgan Leopard (“Defendant”) appeals from judgment entered after a

jury found him guilty of two counts of attempted second-degree forcible sexual offense

and one count of crimes against nature. On appeal, Defendant argues the trial court

erred by imposing consecutive sentences based on improper considerations. After

STATE V. LEOPARD

Opinion of the Court

careful review, we discern no error.

I. Factual & Procedural Background

On 12 July 2021, Defendant was indicted on fourteen sexual offenses upon the

return of true bills of indictment by a Stanly County grand jury. On 27 March 2023,

Defendant’s trial began in Stanly County Superior Court, where the evidence tended

to show the following. Defendant was a family friend of K.R.N. In 2004, K.R.N. and

his parents moved into a home on Defendant’s property. Thereafter, Defendant’s

sexual abuse of K.R.N. began and continued into 2019.

On 6 April 2023, the jury returned guilty verdicts on two counts of attempted

second-degree forcible sexual offense and one count of crimes against nature. At

sentencing, the State sought the imposition of consecutive sentences, while

Defendant requested concurrent sentences. The State noted Defendant was

convicted of indecent liberties with a minor in 2004, had served a year in prison for

the previous conviction, and was a registered sex offender through 2016. The State

also presented virtual testimony from Defendant’s biological daughter, wherein she

stated:

This is a day that I’d lost hope for, but I’ve always prayed

for. I, his blood, am also a victim. I’ve been a victim my

whole life. I grew up manipulated and groomed and

conditioned and abused by this criminal. I know that I’m

not the first. God willing, [K.R.N.] will be the last. I speak

for all those who could not come - - could not or would not

come forward as they suffer in silence.

It was mentioned how [Defendant] had served - - or how he

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Opinion of the Court

served as a state trooper and he was spoken of as a hero.

In truth, he took an oath to serve and protect, but he took

advantage of people, his power, and his influence, where he

(inaudible) d[id] what he want[ed] (inaudible). If he got to

me, his own blood, what would he do to a random stranger?

We were all prey.

....

Over [twenty] years ago, I tried my best to beat the cycle

for another little girl. Unfortunately, (inaudible) and he

was shown special treatment and [he] was released on good

behavior and that’s why we’re here today.

Defense counsel, on the other hand, sought to have Defendant’s sentences run

“concurrently instead of consecutively because justice does need to be metered with

mercy” and argued:

[T]hese people are sitting here in support of [Defendant]

today, his family and his church family. He’s a deacon in

the church. And despite all the allegations that are made

and despite the attempts to besmirch him and despite the

district attorney’s plea, where has [Defendant] been for the

last two years?

Since he evicted this family and since these charges came

out, he’s been out on bond. He hasn’t been arrested. He

hasn’t been charged with anything. Nobody’s made any

allegations against him. He does not appear to be a danger

to society.

Defendant spoke on his own behalf at the sentencing hearing:

I’d just like to thank my church family, my minister, his

wife, my wife, and all the people from my church being here

in support of me.

....

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Opinion of the Court

Every man sins. I’ve made my mistakes. I don’t tell you I

haven’t made mistakes all of my life, because I am a sinner.

I sin daily. I try my best to pray to the Lord and say, Lord,

you know, I know I have, forgive me of my past, and I pray

these things to you, Jesus Christ, my savior. Thank you,

sir.

Thereafter, the trial court consolidated one count of attempted second-degree

forcible sexual offense with the count of crimes against nature. On this judgment,

the trial court sentenced Defendant in the presumptive range to 59 months minimum

and 131 months maximum in the custody of the Department of Adult Corrections.

On the remaining count of attempted second-degree forcible sexual offense, the trial

court sentenced Defendant in the presumptive range to 59 months minimum and 80

months maximum in the custody of the Department of Adult Corrections. The trial

court ordered that the two sentences run consecutively. Defendant entered timely

notice of appeal.

II. Jurisdiction

This Court has jurisdiction under N.C. Gen. Stat. § 7A-27(b)(1) (2023).

III. Issue

The issue is whether the trial court erred by imposing consecutive sentences

based on improper considerations.

IV. Analysis

On appeal, Defendant argues the trial court reversibly erred by considering a

victim impact statement from an individual who was not a victim, testifying witness,

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Opinion of the Court

or family member of K.R.N. during sentencing. Specifically, Defendant argues the

trial court’s decision to impose consecutive sentences was unfairly swayed by the

improper victim impact statement. We disagree.

A. Standard of Review

“When multiple sentences of imprisonment are imposed on a person at the

same time . . . the sentences may run either concurrently or consecutively, as

determined by the court.” N.C. Gen. Stat. § 15A-1354(a) (2023). “The trial court has

discretion to determine whether to impose concurrent or consecutive sentences.”

State v. Nunez, 204 N.C. App. 164, 170, 693 S.E.2d 223, 227 (2010) (citations omitted).

“ ‘A decision entrusted to a trial judge’s discretion may be reversed only if it is

manifestly unsupported by reason or so arbitrary that it could not have been a

reasoned decision.’ ” State v. Pickens, 385 N.C. 351, 360, 893 S.E.2d 194, 200 (2023)

(quoting State v. Brown, 314 N.C. 588, 595, 336 S.E.2d 388 (1985)).

B. Sentencing

“A sentence ‘within the statutory limit will be presumed regular and valid,’

unless ‘the record discloses that the court considered irrelevant and improper

matter[s] in determining the severity of the sentence.’” State v. Meadows, 371 N.C.

742, 748, 821 S.E.2d 402, 407 (2018) (quoting State v. Johnson, 320 N.C. 746, 753,

360 S.E.2d 676, 681 (1987)); State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465

(1977). During sentencing hearings, the trial court is “permitted wide latitude and

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the rules of evidence are not strictly enforced.” State v. Smith, 300 N.C. 71, 81, 265

S.E.2d 164, 171 (1980) (citations omitted).

The primary purposes of sentencing a person convicted of

a crime are to impose a punishment commensurate with

the injury the offense has caused, taking into account

factors that may diminish or increase the offender’s

culpability; to protect the public by restraining offenders;

to assist the offender toward rehabilitation and restoration

to the community as a lawful citizen; and to provide a

general deterrent to criminal behavior.

N.C. Gen. Stat. § 15A-1340.12 (2023). The trial court may consider “‘such matters as

the age, character, education, environment, habits, mentality, propensities and

record of the defendant.’” State v. Johnson, 265 N.C. App. 85, 87–88, 827 S.E.2d 139,

141 (2019) (quoting State v. Morris, 60 N.C. App. 750, 754–55, 300 S.E.2d 46, 49

(1983)).

Where the record is clear that the trial court relied upon improper

considerations in determining the severity of a sentence, the defendant may be

entitled to a new sentencing hearing. See State v. Boone, 293 N.C. 702, 712, 239

S.E.2d 459, 465 (1977). Our precedent, some of which was decided prior to the

General Assembly’s passage of Structured Sentencing, contains guidance on what

constitutes an improper consideration. For example,

our Courts have held it is improper during sentencing for a

trial judge to consider a defendant’s refusal to accept a plea

offer, Boone, 293 N.C. at 712, 239 S.E.2d at 465, the

financial status of a defendant, State v. Massenburg, 234

N.C. App. 609, 615, 759 S.E.2d 703, 707–08 (2014), the

religious beliefs of either a defendant or the judge, State v.

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Earls, 234 N.C. App. 186, 194, 758 S.E.2d 654, 659, disc.

review denied, 367 N.C. 791, 766 S.E.2d 643 (2014), and

conduct not included in the indictment, State v. Swinney,

271 N.C. 130, 133, 155 S.E.2d 545, 548 (1967).

Johnson, 265 N.C. App. at 88, 827 S.E.2d at 141.

On the other hand, in State v. Pickens, our Supreme Court considered a

statement by the trial court where the alleged impropriety of its sentencing

considerations was less clear:

[t]o say the facts of this case are egregious is putting it

mildly. The facts of this case are among the worst I’ve ever

seen, and I’ve seen a lot of cases, thousands as a prosecutor,

thousands as a judge . . . [a]nd in truth, they get

traumatized again by being here, but it’s absolutely

necessary when a defendant pleads not guilty. They didn’t

have a choice and you [the defendant], had a choice.

Pickens, 385 N.C. at 360–61, 893 S.E.2d at 201. On appeal, this Court reasoned the

trial court’s statements “revealed that it had improperly considered [the defendant]’s

exercise of his constitutional right to a jury trial when imposing [his] sentence” and

there was a “clear inference that a greater sentence was imposed because [the]

[d]efendant did not plead guilty.” Id. at 361–62, 893 S.E.2d at 201–02. Our Supreme

Court disagreed and in reversing this Court, explained that “an equally reasonable

inference could be drawn that the [trial] court was not referring to [the defendant]’s

exercise of his right to a jury trial and instead was referring to the egregious nature

of [the defendant]’s crimes and his decision to commit those crimes.” Id. at 364, 893

S.E.2d at 203.

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Opinion of the Court

Here, the State offered a statement from Defendant’s biological daughter.

According to Defendant, the trial court improperly considered her statement because

Defendant’s daughter was not a victim, testifying witness, or relative of the victim.

But even assuming the statement was improper, the trial court gave no indication

that it considered the daughter’s statement in its imposition of consecutive sentences.

The mere fact that a trial court heard an allegedly improper statement from

Defendant’s daughter, without more, is insufficient to show the trial court

“considered” the statement in its decision to impose consecutive sentences. See

Meadows, 371 N.C. at 748, 821 S.E.2d at 407; see also State v. Smith, 352 N.C. 531,

554, 532 S.E.2d 773, 788 (2000) (holding the trial court’s decision to allow victim

impact testimony “was well within the wide latitude allowed trial judges in North

Carolina in conducting sentencing hearings.”). Therefore, Defendant failed to rebut

the presumption of regularity. See Meadows, 371 N.C. at 748, 821 S.E.2d at 407. As

the record fails to demonstrate Defendant’s sentence was swayed by any improper

consideration, the trial court did not abuse its discretion in imposing consecutive

sentences.

V. Conclusion

We conclude the trial court did not abuse its discretion in sentencing

Defendant to consecutive sentences.

NO ERROR.

Judges ARROWOOD and STADING concur.

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Opinion of the Court

Report per Rule 30(e).

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