State v. Fowler, 371 N.C. 718 (Dec. 7, 2018)

On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 800 S.E.2d 724 (2017), the court, in a per curiam opinion, vacated and remanded to the Court of Appeals for reconsideration in light of State v. Malachi, ___ N.C. ___, ___ S.E.2d ___ (2018). In this impaired driving case, the Court of Appeals had held that the trial court committed reversible error by instructing the jury that it could find the defendant guilty if he was driving under the influence of an impairing substance or had a blood alcohol concentration of .08 or more, where no evidence supported a conviction under the .08 prong of the impaired driving statute. The Court of Appeals reasoned that although disjunctive jury instructions generally are permissible for impaired driving, in this case the State presented no evidence supporting the .08 prong. That court thus concluded that the trial court improperly instructed the jury on alternative theories, one of which is not supported by the evidence. It further held that because it is impossible to conclude, based on the record and the general verdict form, upon which theory the jury based its verdict, it must assume that the jury based its verdict on the theory for which it received an improper instruction. The Court of Appeals went on to reject the State’s argument that the error was harmless or non-prejudicial and noted that this is not a case where there is overwhelming evidence of impaired driving.