What Happens When the Jury Is Instructed on the Wrong Theory?

Suppose the trial court, over the defendant’s objection, instructs the jury on a theory of a crime that is not supported by the evidence. Is the defendant entitled to automatic reversal on appeal? Or, alternatively, must the appellate court evaluate whether the erroneous instruction prejudiced the defendant? The North Carolina Supreme Court answered these questions in State v. Malachi, ___ N.C. ___ (2018), published last Friday, and applied its answer in State v. Fowler, ___ N.C. ___ (2018), decided the same day. State v. Malachi. Terance Germaine Malachi was charged with being a felon in possession of a firearm, carrying a concealed weapon, and having attained habitual felon status. The facts. The evidence at trial showed that the Charlotte-Mecklenburg Police Department received an anonymous call from a person who stated that he had just seen an African-American male wearing a red shirt and black pants insert a handgun into his pants while in the parking lot of the Walker's Express convenience store on Freedom Drive in Charlotte. Two police officers arrived at the Walker’s Express minutes later. They saw several people in the parking lot, including Malachi, who was the only person who matched the caller’s description. The officers grabbed Malachi, frisked and handcuffed him, and removed a revolver from the waistband of his pants. The instructions. At the charge conference during Malachi's trial, the State requested that the trial court instruct the jury using N.C. Pattern Jury Instruction Crim. No. 104.41, “Actual-Constructive possession.” Malachi objected to the State’s request on [...]