Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

About

This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

Instructions

Navigate using the table of contents to the left or by using the search box below. Use quotations for an exact phrase search. A search for multiple terms without quotations functions as an “or” search. Not sure where to start? The 5 minute video tutorial offers a guided tour of main features – Launch Tutorial (opens in new tab).

E.g., 09/25/2021
E.g., 09/25/2021

In this sex offense and indecent liberties case, the court held: (1) a sex offense indictment that identified the child victim as “Victim #1” was fatally defective; (2) the trial court’s erroneous failure to conduct a jury instruction conference prior to submitting the existence of a statutory aggravating factor to the jury did not “materially prejudice” the defendant.

(1) Following its decision in State v. White, 372 N.C. 248 (2019), the court held that an indictment charging the defendant with committing a sex offense with a child was fatally defective and facially invalid because it identified the victim as “Victim #1.”  As in White, the court found that identifying the victim as “Victim #1” did not satisfy the requirement in G.S. 15-144.2(b) that a short form sex offense with a child indictment “[name] the child.” 

(2) The court went on to determine that the trial court’s failure to conduct an instruction conference prior to submitting the existence of the “position of trust or confidence” statutory aggravating factor to the jury was error but that it did not “materially prejudice” the defendant.  After accepting the jury’s verdict in the guilt-innocence phase of the trial, the trial court convened a proceeding for the purpose of determining whether a properly noticed “position of trust or confidence” statutory aggravating factor existed.  The record clearly established that during this proceeding the trial court did not conduct a jury instruction conference or otherwise discuss the manner in which the jury should be instructed concerning the aggravating factor.  G.S. 15A-1231(b) requires trial courts to hold a recorded conference on jury instructions but states that a failure “to comply fully” with the statute does not constitute grounds for appeal unless it “materially prejudiced the case of the defendant.”  The Court of Appeals had held, relying on its own precedent, that the total failure to conduct a jury instruction conference necessitated a new proceeding on the aggravating factor regardless of whether the defendant made a showing of “material prejudice.”  The Supreme Court rejected this approach and its distinction between cases in which the trial judge entirely fails to comply with G.S. 15A-1231(b) and those where there is partial compliance.  Overruling any earlier decisions to the contrary, the Supreme Court explained:

[T]he reference in [G.S.] 15A-1231(b) to the necessity for the trial court to “comply fully” with the statutory requirement that a jury instruction conference be conducted, instead of distinguishing between a complete and a partial failure to comply with the applicable statutory requirement, is intended to require the making of a showing of “material prejudice” a prerequisite to an award of appellate relief regardless of the nature and extent of the trial court’s non-compliance with [G.S.] 15A-1231(b).

With this explanation of the statute, the court proceeded to analyze whether the defendant was materially prejudiced in this case and concluded that he was not, noting that there was undisputed overwhelming evidence that the victim was dependent on the defendant in various ways as his step-child and that the court previously had stated that evidence establishing a parent-child relationship tends to support the aggravating factor at issue.

In separate opinions, Justices Newby and Morgan dissented in part and concurred in result only in part.  Justice Newby dissented from the portion of the majority opinion dealing with the validity of the indictment, noting that the defendant was “fully aware of the identity of the victim” and expressing his view that the indictment was sufficient.  As for the instruction conference issue, Justice Newby interpreted G.S. 15A-1231(b) as not requiring a formal instruction conference at a sentencing proceeding to determine the existence of an aggravating factor.  In a footnote, the majority opinion rejected this interpretation of the statute. 

Justice Morgan also would have found the indictment valid because, scrutinizing the whole record, it sufficiently apprised the defendant of the charge against him.  Justice Morgan noted that the victim’s initials appeared on the arrest warrant that was issued for the defendant and on an indictment returned against him for indecent liberties involving the same victim.  Justice Morgan would have reached the same conclusion as the majority with regard to the instruction conference issue but would have done so by distinguishing rather than overruling the pertinent Court of Appeals opinions.

The defendant was convicted by a jury of assault with a deadly weapon inflicting serious injury based on an altercation involving the owner of the house at which he had been living. On appeal, the defendant argued that the trial court erred by not instructing the jury on defense of habitation. Though that defense had been discussed throughout the trial—from a pretrial motion to the charge conference, and during a lunchtime recess in chambers—the defendant never requested an instruction on defense of habitation under G.S. 14-52.2. (1) On appeal, the defendant argued that the judge erred by failing to instruct the jury on defense of habitation despite his failure to request it, and that the issue was preserved because, in light of the in-chambers discussion on possible jury instructions, the charge conference was not recorded in its entirety as required by G.S. 15A-1231. The court of appeals noted that the better practice is to record the entire charge conference, but it ultimately rejected the defendant’s argument that a failure to do so entitled the defendant to raise any issue related to the instructions on appeal, even those not requested or objected to. Under G.S. 15A-1231(b), failures to comply with the statute do not constitute grounds for appeal unless the defendant is “materially prejudiced.” Here, where the trial court specifically stated its intention to get everything “firmly on the record” after the recess discussion and twice mentioned the possibility of giving the defense of habitation instruction, and where the defendant neither requested the instruction nor objected to the court’s failure to give it, the defendant was not materially prejudiced by the failure to record the entire charge conference. (2) The court of appeals concluded that plain error review was waived because the defendant invited any error through his failure to request the instruction or object to its omission after it had been discussed so extensively.

Although the trial court erred by failing to fully comply with the statutory requirements regarding a charge conference at the sentencing phase of this felony child abuse case, no material prejudice resulted. The court noted that G.S. 15A-1231(b) requires the trial court to hold a charge conference, regardless of whether a party requests one, before instructing the jury on aggravating factors during the sentencing phase of a non-capital case. Here, the trial court informed the parties of the aggravating factors that it would charge, gave counsel a general opportunity to be heard at the charge conference, and gave counsel an opportunity to object at the close of the instructions. However, because the trial court failed to inform counsel of the instructions that it would provide the jury, it deprived the parties of the opportunity to know what instructions would be given, and thus did not comply fully with the statute.

(1) The court rejected the defendant’s argument that the trial court erred by providing the jury with written jury instructions on the charge of felonious breaking or entering which conflicted and materially differed from the court’s earlier oral instructions. As a general rule, when there are conflicting instructions on a material point, a new trial is required. Here, the trial court’s initial oral instructions stated, in part, that the jury must find that, at the time of the breaking or entering, the defendant intended to commit the felony of assault. Subsequently, the trial court noted to counsel that he wanted to add the definition of “the felony of assault” in written instructions to be given to the jury. Both sides agreed to the trial court’s proposed language. The revised language stated that the felony of assault would be assault with a deadly weapon with intent to kill, inflicting serious bodily injury or an attempt to commit that crime. The court rejected the defendant’s argument that the oral and written instructions conflicted. Here, recognizing that the oral instructions may have been insufficient, the trial court provided the additional language simply to further define “the felony of assault.” The trial court may clarify its jury instructions. (2) Even assuming that the trial court erred in its jury instructions, the error did not rise to the level of plain error. 

In a footnote, the court “urge[d]” the trial courts to define all relevant terms in its jury instructions and avoid the situation that occurred here, where the trial court declined to define the relevant term and allowed counsel to argue definitions of the term to the jury. 

In this Sampson County case, the defendant was convicted of felony fleeing to elude, habitual felon, and habitual impaired driving. The focus of the defendant’s arguments on appeal were on the definition of “motor vehicle” as used in G.S. 20-141.5(a) and G.S. 20-4.01(23) at the time of the offenses in 2015. This definition excluded “mopeds” from the definition of “motor vehicles.” Within that statutory framework, a “moped” was defined as “[a] vehicle that has two or three wheels, no external shifting device, and a motor that does not exceed 50 cubic centimeters piston displacement and cannot propel the vehicle at a speed greater than 30 miles per hour on a level surface.” G.S. 105-164.3(22) (2015).

(1) The defendant argued that the State did not prove that the defendant was operating a motor vehicle, an element of felony speeding to elude arrest, based on the State’s repeated references to defendant’s vehicle as a “moped” at trial. The Court of Appeals disagreed, finding that the statutory definition of a “moped” differs from the ordinary, vernacular use of “moped,” and determining that the State presented sufficient evidence that the defendant’s vehicle was a “motor vehicle” within the meaning of the statute. According to the court:

Ultimately, the State’s evidence met the elements of the statutory definition of a ‘motor vehicle,’ despite its repeated use of the term ‘moped,’ and defendant’s motion to dismiss the charge of felony speeding to elude arrest was properly denied. Boykin Slip op. at 11.

(2) The defendant also argued that the trial court erred by failing to instruct the jury on the definition of “motor vehicle.” Reviewing for plain error, the Court of Appeals agreed. Because the evidence, especially the State’s repeated use of the word “moped” rather than “motor vehicle,” could have led the jury to reach a different determination if they had known the statutory definition of “motor vehicle,” the defendant was entitled to a new trial on the felony fleeing to elude offense. Because the defendant was found to be a habitual felon based on the fleeing to elude, that conviction was also vacated.

In this Mecklenburg County case, a jury found the defendant guilty of embezzlement of a controlled substance by an employee of a registrant or practitioner under G.S. 90-108(a)(14). While employed as a pharmacy technician at CVS, the defendant accepted $100 in exchange for processing a fraudulent prescription for Oxycodone. (1) The defendant argued on appeal that the evidence did not show embezzlement because she never lawfully possessed the prescriptions, which were obtained by fraud. The Court of Appeals disagreed, concluding that under the statute under which the defendant was convicted, G.S. 90-108(a)(14), the defendant had the requisite “access to controlled substances by virtue of [her] employment” in that she was allowed to take prescriptions filled by the pharmacist from the pharmacy’s waiting bins to the customers. (2) The court also rejected the defendant’s argument that the trial court erred in denying her motion to dismiss based on the State’s failure to establish that CVS was a “registrant” within the meaning of G.S. 90-87(25). Though the trial testimony did not clearly and specifically identify CVS as a registrant of the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services, it did indicate that CVS was “a registrant that is authorized by law to dispense medications,” and therefore permitted a reasonable inference that the defendant committed the crime. (3) Finally, the Court of Appeals concluded that the trial court did not commit plain error by not instructing the jury on the statutory definition of “registrant.” The defendant did not request the instruction at trial, the trial court’s instruction mirrored the language of G.S. 90-108(a)(14), and the defendant failed to demonstrate any prejudice stemming from the alleged error. A dissenting judge would have concluded that the defendant did not embezzle the controlled substance as charged because she obtained it through fraudulent means, and therefore did not possess it lawfully as required by our courts’ traditional understanding of embezzlement.

(1) The court rejected the defendant’s argument that the trial court erred by providing the jury with written jury instructions on the charge of felonious breaking or entering which conflicted and materially differed from the court’s earlier oral instructions. As a general rule, when there are conflicting instructions on a material point, a new trial is required. Here, the trial court’s initial oral instructions stated, in part, that the jury must find that, at the time of the breaking or entering, the defendant intended to commit the felony of assault. Subsequently, the trial court noted to counsel that he wanted to add the definition of “the felony of assault” in written instructions to be given to the jury. Both sides agreed to the trial court’s proposed language. The revised language stated that the felony of assault would be assault with a deadly weapon with intent to kill, inflicting serious bodily injury or an attempt to commit that crime. The court rejected the defendant’s argument that the oral and written instructions conflicted. Here, recognizing that the oral instructions may have been insufficient, the trial court provided the additional language simply to further define “the felony of assault.” The trial court may clarify its jury instructions. (2) Even assuming that the trial court erred in its jury instructions, the error did not rise to the level of plain error. 

State v. Combs, 226 N.C. App. 87 (Mar. 19, 2013)

The court rejected the defendant’s argument that the trial court erred by failing to give additional jury instructions in open court and make them a part of the record as required by G.S. 15A-1234. Where, as here, the trial judge simply repeats or clarifies instructions previously given and does not add substantively to those instructions, the court’s instructions are not “additional instructions” within the meaning of the statute.

The trial court did not abuse its discretion by declining to provide the jury with a written copy of the jury instructions when asked to do so by the jury.

State v. Perry, 222 N.C. App. 813 (Sept. 18, 2012)

Based on the circumstances of this felon in possession case, the trial court’s failure to further inquire into and answer the jury’s questions regarding constructive possession of the gun constituted plain error. The circumstances included the fact that the jury was instructed on actual possession even though the State had argued to the jury that there was no evidence of actual possession and that the jury was instructed on constructive possession when no evidence supported such an instruction.

The trial court did err by failing to ex mero motu investigate the competency of a juror after the juror sent two notes to the trial court during deliberations. After the juror sent a note saying that the juror could not convict on circumstantial evidence alone, the trial judge re-instructed the whole jury on circumstantial evidence and reasonable doubt. After resuming deliberations, the juror sent another note saying that the juror could not apply the law as instructed and asked to be removed. The trial judge responded by informing the jury that the law prohibits replacing a juror once deliberations have begun, sending the jury to lunch, and after lunch, giving the jury an Allen charge. The court found no abuse of discretion and noted that if the judge had questioned the juror, the trial judge would have been in the position of instructing an individual juror in violation of the defendant’s right to a unanimous verdict.

The trial court did not err by denying the defendant’s request for a special instruction on sequestration. In closing argument, the prosecutor argued, in part: “[Defendant is] cherry-picking the best parts of everybody’s story after … he’s had the entire trial to listen to what everybody else would say. You’ll notice that our witnesses didn’t sit in here while everybody else was testifying.” After the jury was instructed and left the courtroom to begin deliberations, the defendant asked the trial court to instruct the jury as follows: “In this case, all witnesses allowed by law were sequestered at the request of the State. These witnesses could not be present in court except to testify until they were released from their subpoenas, or to discuss the matter with other witnesses or observers in court. By law, the defendant and lead investigator for the State cannot be sequestered.” Given the trial court’s conclusion that the requested instruction did not relate to a dispositive issue in the case, it did not abuse its discretion in denying the defendant’s request.

State v. Starr, 209 N.C. App. 106 (Jan. 4, 2011) aff'd on other grounds, 364 N.C. 314 (Dec 9 2011)

In an assault on a firefighter with a firearm case, the trial court did not err by denying the defendant's request for a jury instruction on the elements of assault where the defendant failed to submit his requested instruction in writing. 

In a counterfeit controlled substance case, the trial court did not err by failing to give a jury instruction where the defense failed to submit the special instruction in writing.

The defendant was convicted of voluntary manslaughter and sentenced to 73 to 100 months in prison for shooting her boyfriend, Timothy Lee Fry, with whom she had lived for approximately three years. The evidence showed that their relationship was good at first but started to deteriorate after about a year. Fry verbally and physically abused her. He would choke her, pull her hair, and push her face. A gun enthusiast who kept loaded guns around the house, Fry would point the laser sight at the defendant’s forehead and chest. The abuse also included repeated instances in which Fry would coerce her into having sex with him and other, older men. The defendant suffered from depression and had once attempted suicide. On the day of the shooting, the defendant returned home from work to find Fry in the basement of their home. He asked her to go with him to South Carolina to have sex with an older man. When she refused, Fry held a handgun to her chest, acted like he was pulling the trigger, and told her he would kill her if she didn’t go. The defendant went upstairs. When she returned to the basement, Fry repeated that he was going to kill her if she didn’t go and grabbed where the gun was and started towards her. The defendant grabbed a shotgun leaning against the bathroom wall and fired five rounds, hitting him four times. The defendant testified, “The closer he came, the more I would shoot because he wouldn’t stop, he just kept coming towards me.” After each shot, she had to load a new shell into the chamber, push the slide forward, and pull the trigger. Two shots entered Fry’s chest. Another two entered through his left arm and armpit, traveling through his left lung and fracturing five ribs. The State’s forensic pathologist testified that any one of the shots would have been enough to incapacitate and kill Fry. Three bullet holes from the shotgun’s slugs were found in the carpet beneath Fry’s body, suggesting that he was on the ground when shot; and each of the four bullet wounds had a downward trajectory. After shooting Fry, the defendant called 911 and told the operator that she had shot her boyfriend.

The trial judge instructed the jury on first-degree murder, second-degree murder, voluntary manslaughter, self-defense, voluntary intoxication, and diminished capacity. In the final mandate on voluntary manslaughter, the offense for which the defendant was convicted, the trial judge instructed the jury as follows but without the underlined phrase:

 

If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant intentionally wounded the alleged victim with a deadly weapon and thereby proximately caused the alleged victim’s death, and that the defendant . . . used excessive force, it would be your duty to find the defendant guilty of voluntary manslaughter, even if the State has failed to prove that the defendant did not act in self-defense.

The Court of Appeals held that the defendant failed to preserve the erroneous omission of the underlined language for appellate review. The defendant did not object to the omission and, after the judge excused the jury to commence its deliberations, did not request any modifications to the instructions when asked by the judge. The Court distinguished decisions finding no waiver in which the trial judge agreed to give a specific instruction and failed to give it altogether rather than omitting a portion of the instruction as in this case. Reviewing the instruction for plain error, the Court found that the defendant failed to show reversible error because the trial judge in other portions of the jury instructions included the language omitted from the final mandate.

The trial court did not err in this murder case by declining to include a special jury instruction on specific intent in the final mandate. On the issue of specific intent, the trial judge gave the jury an instruction regarding voluntary intoxication and its effect on specific intent, but did not repeat the instruction as part of the final mandate. The appellate court held that the defendant failed to preserve the issue by not objecting, and further held that it was not plain error because the trial judge was not required to restate the specific intent instruction in the final mandate.

In this robbery case, no plain error occurred with respect to the trial court’s not guilty mandate. The jury instructions for the offenses of armed and common law robbery conformed to the pattern jury instructions with one exception: the court did not expressly instruct the jury that it had a “duty to return a verdict of not guilty” if it had a reasonable doubt as to one or more of the enumerated elements of the offenses. Instead, for the offense of armed robbery, the court ended its charge to the jury with the following instruction: “If you do not so find or have a reasonable doubt as to one or more of these things, then you will not return a verdict of guilty of robbery with a firearm as to that defendant.” For the offense of common law robbery, the court ended its charge similarly, substituting the words “common law robbery” for robbery with a firearm. Citing State v. McHone, 174 N.C. App. 289 (2005) (trial court erred by failing to instruct the jury that “it would be your duty to return a verdict of not guilty” if the State failed to meet one or more of the elements of the offense), the court held that the trial court’s instructions were erroneous. However, it went on to hold that no plain error occurred, reasoning in part that the verdict sheet provided both guilty and not guilty options, thus clearly informing the jury of its option of returning a not guilty verdict.

No plain error occurred with respect to the trial court’s final mandate to the jury on a first-degree murder charge. The trial court instructed the jury that it could find the defendant guilty of first-degree murder as to victim Frink under the following theories: premeditation and deliberation, felony-murder, and lying in wait. After instructing the jury on all theories, the trial court continued: “If you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.” The defendant argued that the jury could have construed this not guilty mandate as applying solely to the theory of lying in wait—the last theory explained in the instructions--as opposed to the overall charge of first-degree murder. The court rejected that argument, concluding first that “[w]hile the better practice would have been for the trial court to make clear to the jury that its final not guilty mandate applied to all three theories of first-degree murder, this — by itself — is not sufficient to establish plain error.” Next the court examined the verdict sheet and concluded that it “clearly informed the jury of its option of returning a not guilty verdict regarding this charge.” Finally, the court compared the not guilty mandate at issue with the analogous mandate regarding the first-degree murder charge as to a second victim, Jones. In the course of this examination, the court noted that “the final not guilty mandate in the Frink instruction is worded more appropriately than that in the Jones instruction,” because the “former informed the jury of its ‘duty’ to return a verdict of not guilty while the latter merely stated that the jury ‘would’ return a not guilty verdict if the State failed to prove the defendant’s guilt beyond a reasonable doubt.” In the end, the court concluded that even if the trial court erred, the error did not rise to the level of plain error.

Distinguishing State v. McHone, 174 N.C. App. 289, 294 (2005), the court held that no plain error occurred when the trial court failed to instruct that the jury must return a “not guilty” verdict if it was unable to conclude that the defendant committed first-degree murder on the basis of premeditation and deliberation. The court noted that the verdict sheet provided a space for a “not guilty” verdict and the trial court’s instructions on second-degree murder and the theory of lying in wait comported with the McHone final mandate requirement. With respect to premeditation and deliberation, the instruction stated, in part: “If you do not so find or have a reasonable doubt as to one or more of these things you would not return a verdict of “guilty of first-degree murder” on the basis of malice, premeditation and deliberation.”

Although the trial judge did not expressly instruct the jury that if it failed to find the required elements it must find the defendant not guilty, the defendant was not prejudiced by the trial court’s alternative final mandate language (“If you do not so find . . . you will not return a verdict of guilty”). Notably, the verdict sheet provided an option of returning a not guilty verdict.

Although the trial court erred by failing to give the final not guilty mandate, under the circumstances presented the error did not rise to the level of plain error.

(1) Where the defendant was charged with two counts of felony assault on two separate victims, no error occurred where in its jury instruction the trial court referred to “the victim.” The defendant argued that the trial court erred by failing to instruct the jury to consider each offense individually. The court disagreed, noting that the charges were clearly separated on the verdict sheets and the trial court referred to the two victims by name and stated that they were separate victims of two different counts of assault. (2) The court came to the same conclusion with respect to two counts of conspiracy to commit murder.

The trial court did not commit plain error by categorizing multiple identical charges in one instruction. The trial court gave the jury a copy of the instructions and separate verdict sheets clearly identifying each charge.  

In a case involving two defendants, no plain error occurred where the trial court’s instructions referred to the defendant and his accomplice collectively as “defendants.” The court noted that when two or more defendants are tried jointly for the same offense, a charge that is susceptible to the construction that the jury should convict all if it finds one guilty is reversible error. However, it noted, it is not necessary to give wholly separate instructions as to each defendant when the charges and the evidence as to each defendant are identical, provided that the trial court either gives a separate final mandate as to each defendant or otherwise clearly instructs the jury that the guilt or innocence of one defendant is not dependent upon the guilt or innocence of a codefendant. Noting that the trial court failed to give a separate mandate as to each defendant or a separate instruction clarifying that the guilt or innocence of one defendant is not dependent upon the guilt or innocence of a codefendant, the court held that even if error occurred, it did not rise to the level of plain error.

In a case in which two defendants were convicted of attempted murder and felonious assault, the trial judge committed plain error by giving jury instructions that impermissibly grouped the defendants together in presenting the charges and issues to the jury. In its instructions, the trial court repeatedly referred to the defendants collectively (e.g.,: “For you to find the defendants guilty of this offense . . . .”; the State must prove “that [when] each of the defendant had this intent[,] they performed an act that was calculated and designed to accomplish the crime”).

State v. Dale, 245 N.C. App. 497 (Feb. 16, 2016)

The trial court did not commit plain error in instructing the jury on disorderly conduct in a public building or facility where it required the State to prove an element not required by the statute (that the “utterance, gesture or abusive language that was intended and plainly likely to provoke violent retaliation, and thereby caused a breach of the peace”). Because the State had to prove more than was required to obtain a conviction, the defendant did not suffer prejudice.

State v Walston, 367 N.C. 721 (Dec. 19, 2014)

Based on long-standing precedent, the trial court’s use of the term “victim” in the jury instructions was not impermissible commentary on a disputed issue of fact and the trial court did not err by denying the defendant’s request to use the words “alleged victim” instead of “victim” in the jury charge in this child sexual abuse case. The court continued:

We stress, however, when the State offers no physical evidence of injury to the complaining witnesses and no corroborating eyewitness testimony, the best practice would be for the trial court to modify the pattern jury instructions at defendant’s request to use the phrase “alleged victim” or “prosecuting witness” instead of “victim.” 

In this Moore County case, the defendant was convicted of first-degree rape and sex offense, crime against nature, possession of firearm by felon, communicating threats and various assaults stemming from attacks on his estranged then-wife. On appeal, the defendant argued that the trial court plainly erred by permitting multiple witnesses for the State to refer to the woman as the “victim,” that his trial counsel was ineffective for failing to object to those references, and that the trial court plainly erred by using “victim” to describe the woman in its jury instructions.

(1) A total of eight witnesses for the State used the term “victim” in reference to the woman, five of whom were law enforcement officers and four of whom were expert witnesses. The defendant contended this amounted to improper vouching for the accuser’s credibility and argued the trial court should have intervened ex mero motu. The court found that the defendant could not show prejudice and therefore could not establish plain error. “…[T]he strength of the State’s evidence against defendant . . . outweighed any potential subliminal effect of the witnesses’ occasional references to [the woman] as the victim.” Slip. op. at 13.

(2) For the same reasons, the defendant’s ineffective assistance of counsel claim failed. The defendant could not demonstrate a reasonable possibility of a different result at trial had his counsel objected to the uses of the word “victim” and therefore could not establish prejudice under Strickland v. Washington, 466 U.S. 668 (1984). 

(3) According to the defendant, the trial court’s use of the word “victim” in its jury instruction violated the statutory mandate against expression of judicial opinion. Rejecting this argument, the court observed:

Our Supreme Court has consistently rejected a defendant’s attempt to couch the trial court’s use of the term “victim” in its jury instructions as an improper expression of judicial opinion in violation of N.C.G.S. §§ 15A-1222 and 1232. . . Likewise, our Supreme Court has rejected arguments that the trial court’s use of the term “victim” in its charge to the jury amounts to plain error . . . Id. at 17.

Any constitutional challenge to the jury instructions on this point was not raised in the trial court and therefore waived on appeal. The convictions were thus unanimously affirmed.

In this sexual assault case, no plain error occurred when the trial court referred to the complaining witness as “the victim” in the jury instructions. It is well-settled that when a judge properly places the burden of proof on the State, referring to the complaining witness as “the victim” does not constitute plain error. The court noted however that the best practice is for the trial court to modify the pattern jury instructions at the defendant’s request to use the phrase “alleged victim” or “prosecuting witness” instead of “victim.” Here however the defendant did not request such a change and the trial court properly placed the burden of proof on the State.

State v. Davis, 239 N.C. App. 522 (Mar. 3, 2015) modified and affirmed on other grounds, 368 N.C. 794 (Apr 15 2016)

Citing State v. Walston, 367 N.C. 721 (Dec. 19, 2014), the court held in this child sexual assault case that the trial court did not commit reversible error by using the word “victim” in the jury instructions. 

In this child sexual abuse case, the trial court did not err by referring to the victim as the “alleged victim” in its opening remarks to the jury and referring to her as “the victim” in its final jury instructions. The court distinguished State v. Walston, 229 N.C. App. 141 (2013), rev’d, 367 N.C. 721 (Dec. 19, 2014), on grounds that in this case the defendant failed to object at trial and thus the plain error standard applied. Moreover, given the evidence, the court could not conclude that the trial court’s word choice had a probable impact on the jury’s finding of guilt.

No plain error occurred in a sexual assault case where the trial court referred to “the victim” in its jury instructions.

In this child sex case, the trial court did not commit plain error by using the word “victim” in the jury instructions. The court distinguished State v. Walston, 229 N.C. App. 141 (2013) (trial court’s use of the term “victim” in jury instructions was prejudicial error), rev’d, 367 N.C. 721 (Dec. 19, 2014). First, in Walston, the trial court denied the defendant’s request to modify the pattern jury instructions to use the term “alleged victim” in place of the term “victim,” and objected repeatedly to the proposed instructions; here, no such request or objection was made. Second, in Walston, the evidence was conflicting as to whether the alleged sexual offenses occurred; here no such conflict existed. Finally, in Walston the trial court committed prejudicial error; here, the defendant did not assert that he suffered any prejudice because of the use of the term “victim.” 

The court rejected the defendant’s argument that by using the phrase “the victim” while instructing the jury the trial court expressed an opinion regarding a fact in violation of G.S. 15A-1232; the court found that the defendant failed to show prejudice.

In a sexual assault case, the trial court did not err by using the word “victim” in the jury instructions. Use of this word did not constitute an opinion by the trial court regarding guilt and caused no prejudice.

In this homicide case, the trial court did not commit plain error in its jury instructions on the defense of automatism. The defendant argued that the jury instruction misleadingly implied that he had to prove the defense beyond a reasonable doubt. The trial court’s instructions, which were almost entirely a verbatim recitation of the Pattern Jury Instructions, explained the proper burden of proof for the defense as well as the principle that if the jury found that the defendant had met his burden of proving the defense he would be not guilty of any crime. The instructions explicitly stated that the defendant’s burden was “to establish this defense to the satisfaction of the jury,” unlike the State, which must prove all the other elements beyond a reasonable doubt. 

No plain error occurred when the trial court instructed the jury on the 404(b) evidence using N.C. Pattern Jury Instruction – Crim. 104.15 but declined to instruct that the evidence could not be used to prove defendant’s character or that he acted in conformity therewith.

Officers investigating complaints of drug activity at a home where the defendant lived with several others discovered methamphetamine, heroin, and cocaine in a small yellow tin in a dresser in the alcove near defendant’s bedroom, an area that the defendant claimed as his personal space. The defendant had allowed officers to search the area, acknowledging that he had used methamphetamine and prescription pills, and that his bedroom likely contained needles and pipes (which were in fact found by the officers), but telling the officers that he did not think they would find any illegal substances. Without the defendant’s knowledge, another resident of the home, Autumn Stepp, had placed the yellow tin, which she referred to as her “hard time stash,” in the dresser before leaving the home earlier that day.

The defendant was charged with possession with intent to sell and deliver methamphetamine, heroin, and cocaine and with maintaining a dwelling house for the sale of controlled substances. He also was indicted for having attained the status of an habitual felon. At the close of the State’s evidence, the trial court dismissed all charges except for simple possession of heroin, methamphetamine, and cocaine. The State requested, and the judge delivered over the defendant’s objection, a jury instruction on the theory of acting in concert in addition to constructive possession. The jury convicted the defendant of simple possession of heroin, methamphetamine, and cocaine and determined that he had attained the status of an habitual felon. The trial court imposed two consecutive sentences of 50 to 72 months of imprisonment. Defendant appealed. 

In a divided opinion, the court of appeals determined that the instruction was proper as it was supported by the evidence. The defendant appealed to the North Carolina Supreme Court.

The state supreme court noted that to support a jury instruction on the theory of acting in concert, the State must produce evidence that the defendant acted together with another who did the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime. Mere presence at the scene of the crime is insufficient to support such an instruction. The supreme court agreed with the dissent below that there was no evidence that the defendant acted together with Stepp pursuant to a common plan or purpose; therefore, the supreme court concluded that the trial court erred by giving the instruction. The court reasoned that the discovery of the tin in the defendant’s personal area could indicate his capability to maintain dominion and control over it, thereby supporting a theory of constructive possession, but did not show a common plan or purpose in which the defendant acted in concert with Stepp to protect her “hard time stash.” Likewise, defendant’s admission that he had used illegal drugs on the day of the search and with Stepp in the past could support a theory of constructive possession, but did not demonstrate a common plan or purpose between defendant and Stepp as to the substances in the yellow tin.

Because the State’s evidence supporting the theory of constructive possession was controverted and not exceedingly strong and given the prospect of confusion presented by proceeding on a theory of possession by acting in concert and constructive possession, the court concluded there was a reasonable possibility that had the trial court not instructed on acting in concert a different result would have been reached. The state supreme court thus reversed the decision of the court of appeals, vacated the defendant’s convictions and ordered a new trial.

Justice Newby dissented based on his view that the majority failed to consider the evidence in the light most favorable to the State. Through that lens, he would have found sufficient evidence to support the theory of acting in concert.

In this case involving three accomplices and charges of armed robbery, common law robbery and attempted armed robbery, the court rejected the defendant’s argument that he could not have been convicted of attempted armed robbery under the theory of acting in concert because the trial court did not specifically instruct the jury on that theory in its charge on that count. The trial court gave the acting in concert instruction with respect to the counts of armed and common law robbery; it did not however repeat the acting in concert instruction after instructing on attempted robbery with a firearm. Considering the jury instructions as a whole and the evidence, the court declined to hold that the trial court’s failure to repeat the instruction was likely to have misled the jury.

In a murder case, the trial court did not err by denying the defendant’s request for an alibi instruction. The alibi defense rested on the defendant’s testimony that he did not injure the child victim and that he left the child unattended in a bathtub for an extended period of time while meeting with someone else. The court concluded that this testimony was merely incidental to the defendant’s denial that he harmed the child and did not warrant an alibi instruction. The testimony did not show that the defendant was somewhere which would have made it impossible for him to have been the perpetrator, given that the precise timing of the incident was not determined and the defendant had exclusive custody of the child before his death.

In this Buncombe County case, the defendant was convicted of possession with intent to sell or deliver cocaine. The defendant sold two white rocks to an undercover officer in a parking lot. When the defendant gave the drugs to the officer, he placed them in the officer’s bare hands without any packaging. The rocks were later tested and found to contain cocaine. (1) At trial, the defendant moved to dismiss for insufficient evidence. He pointed out that the officer had handled other cocaine with his bare hands earlier in the day and had stored other cocaine in his car console where the cocaine obtained from the defendant was later stored. According to the defendant, this rendered the laboratory result unreliable and insufficient to prove possession of cocaine. The court rejected this argument, finding the handling and storing of the rocks was an issue going to the weight of the evidence and not its admissibility. While the jury was free to consider the contamination argument, there was sufficient evidence that the substance was cocaine when viewed in the light most favorable to the State.

(2) The defendant did not object to the authentication of the cocaine at trial but argued on appeal that the trial court plainly erred in admitting the evidence due to the potential contamination issue. The court again disagreed. “The possibility that physical evidence has been contaminated does not, by itself, bar that evidence from being authenticated and admitted.” Slip op. at 6. Just as with the sufficiency issue, the question of the authentication of the cocaine here went to the weight of the evidence and not admissibility.

(3) After one day of deliberations, the jury sent a note to the trial court indicating it was deadlocked. The trial court instructed the jury pursuant to G.S. 15A-1235 before dismissing the jury for the day. The next morning, the trial judge stated that the jury should resume deliberations “with a goal of reaching a unanimous decision as to each charge.” The defendant complained that this language improperly coerced the jury to render a unanimous verdict. The court disagreed:

The trial court properly gave the required Allen instructions to ensure that jurors understood they were not compelled to reach a unanimous verdict. In light of those instructions, the trial court’s decision, when deliberations resumed, to inform the jury that they should have the goal of reaching a unanimous verdict did not compel any juror to surrender his well-founded convictions or judgment to the views of the majority. It simply reinforced that the jury’s charge was to deliberate and reach a unanimous verdict if possible. Jackson Slip op. at 9.

The case was therefore affirmed in all respects.

(1) The trial court did not coerce a verdict by giving an Allen charge pursuant to G.S. 15A-1235. The jury sent the judge a note at 3:59 pm, after 70 minutes of deliberations, indicating that they were split 11-to-1 and that the one juror “will not change their mind.” The court rejected the defendant’s argument that a jury’s indication that it may be deadlocked requires the trial court to immediately declare a mistrial, finding it inconsistent with the statute and NC case law. (2) The trial court did not coerce a verdict when it told the deliberating jury, in response to the same note about deadlock, that if they did not reach a verdict by 5 pm, he would bring them back the next day to continue deliberations. Although threatening to hold a jury until they reach a verdict can under some circumstances coerce a verdict, that did not happen here. After receiving the note at approximately 4:00 pm, the trial judge told the jurors that although they were divided, they had been deliberating for only approximately 75 minutes. The judge explained that he was going to have them continue to deliberate for the rest of the afternoon and that if they needed more time they could resume deliberations the next day. The trial judge further emphasized that the jurors should not rush in their deliberations and reminded them that it was “important that every view of the jury be considered, and that you deliberate in good faith among yourselves.” The court found that these statements cannot be viewed as coercive. 

The trial court did not coerce a verdict by instructing the jurors to continue deliberating after they three times indicated a deadlock. Although the trial court did not give an Allen instruction every time, G.S. 15A-1235 does not require the trial court to do so every time the jury indicates that it is deadlocked.

(1) The trial court did not abuse its discretion by giving an Allen charge. During the jury’s second day of deliberations in a murder case, it sent a note to the trial judge stating that the jurors could not agree on a verdict. The trial judge inquired as to the numerical division, instructing the foreperson not to tell him whether the division was in favor of guilty or not guilty. The foreperson informed the judge that the jury was divided eleven to one. The trial court then gave additional instructions based on G.S. 15A-1235(b) and the jury found the defendant guilty almost two hours later. (2) Although the trial court’s Allen instruction (which was almost identical to N.C.P.I.—Crim. 101.40) varied slightly from the statutory language, no error occurred.

The trial court’s instructions to a deadlocked jury unconstitutionally coerced guilty verdicts. The jury began their initial deliberations and continued deliberating for about three hours. Following a lunch break, the jury resumed deliberations. After an hour the jury sent the following note to the court: “We cannot reach a unanimous decision on 4 of the 5 verdicts.” Upon receiving the note, the trial judge brought the jury back into the courtroom and gave the following instruction:

It’s not unusual, quite frankly, in any case for jurors to have a hard time reaching a unanimous verdict on one charge, much less four or five or more.

So what the Court is prepared to do is remind you – and if you look at the jury instructions – that it is your duty to find the truth in this case and reach a verdict.

What I’m going to do is understand that you guys are having some difficulty back there but most respectfully, direct once again you go back into that jury room, deliberate until you reach a unanimous verdict on all charges. You’ve not been deliberating that long. I understand it’s difficult and I understand sometimes it can be frustrating, but what I ask you to do is continue to be civil, professional, cordial with each other, exchange ideas, continue to deliberate and when you’ve reached a unanimous verdict, let us know. 

Thank you so much.  Once again, I ask you [to] retire to your jury room to resume deliberations.

The jury then resumed deliberations, and after approximately 90 minutes, returned three guilty verdicts. Although the trial judge’s instructions contained the substance of G.S. 15A-1235(a) and (c), they did not contain the substance of G.S. 15A-1235(b) and as a result were coercive. Nowhere in the instructions was there a suggestion to the jurors that no juror is expected to “surrender his honest conviction” or reach an agreement that may do “violence to individual judgment.” The court went onto conclude that the error was not harmless and ordered a new trial. 

Upon being notified that the jury was deadlocked, the trial judge did not err by giving an Allen instruction pursuant to N.C. Crim. Pattern Jury Instruction 101.40 and not G.S. 15A-1235, as requested by the defendant. Because there was no discrepancy between the pattern instruction and G.S. 15A-1235, it was not an abuse of discretion for the trial court to use the pattern instruction.

State v. Ross, 207 N.C. App. 379 (Oct. 19, 2010)

The trial court did not abuse its discretion by failing to give an Allen instruction after the jury reported for the third time that it was deadlocked when the trial judge had given such an instruction 45 minutes earlier.

The trial judge did not abuse his discretion in giving an Allen instruction. After an hour of deliberation, the jury foreman sent a note stating that the jury was not able to render a verdict and were split 11-1. The trial court recalled the jury to the courtroom and, with the consent of the prosecutor and defendant, instructed the jury in accordance with N.C.P.I. Criminal Charge 101.40, failure of the jury to reach a verdict. The jury then returned to deliberate for 30 minutes before the trial judge recessed court for the evening. The next morning, before the jury retired to continue deliberations, the trial court again gave the Allen instruction.

The court upheld the language in N.C. Criminal Pattern Jury Instruction 101.40, instructing the jury that “it is your duty to do whatever you can to reach a verdict.”

In this homicide case, the trial court did not commit plain error in its jury instructions on the defense of automatism. The defendant argued that the jury instruction misleadingly implied that he had to prove the defense beyond a reasonable doubt. The trial court’s instructions, which were almost entirely a verbatim recitation of the Pattern Jury Instructions, explained the proper burden of proof for the defense as well as the principle that if the jury found that the defendant had met his burden of proving the defense he would be not guilty of any crime. The instructions explicitly stated that the defendant’s burden was “to establish this defense to the satisfaction of the jury,” unlike the State, which must prove all the other elements beyond a reasonable doubt.

In a DWI case, an officer’s testimony supported an instruction that the jury could consider the defendant’s refusal to take a breath test as evidence of her guilt.

(1) At his trial for habitual DWI, the defendant took the stand, denied driving, and admitted his prior DWI convictions in explaining why he did not drive on the night in question and why, based on his past interactions with law enforcement, he did not speak to the arresting officers. On cross-examination, the State asked the defendant about the offense, date, and place of each of those convictions. The defendant asked the trial judge to instruct the jury pursuant to North Carolina Pattern Jury Instruction 105.40, which instructs that the jury should not consider a defendant’s prior convictions as evidence of the defendant’s guilt in the current case. The trial judge refused to give the instruction. Relying on State v. Jackson, 161 N.C. App. 118 (2003), the Court of Appeals found no error. Per that opinion, a defendant is not entitled to a special instruction instructing the jury to consider a defendant’s testimony about prior convictions for purposes of the defendant’s credibility only, where the defendant initially offers the testimony on direct examination. The Court held that the State’s cross-examination of the defendant in this case was limited and did not constitute sufficient impeachment to require the instruction. The Court rejected the defendant’s argument that it should reconsider Jackson, finding that it was bound by the prior decision. (2) Before his first trial on the habitual DWI charge, the defendant moved for and the trial judge conducted an in camera review of the arresting officers’ personnel records. The trial judge denied release, finding no favorable and material evidence, and the Court of Appeals upheld the denial in an unpublished opinion. On appeal in this case, the defendant asked the Court of Appeals to review the records, which the trial judge had placed under seal at the first trial. The Court of Appeals held that the defendant failed to preserve the issue for appeal, having failed to make any motion asking the trial judge to review the records before his second trial. The Court stated that a mistrial has the legal effect of no trial. Therefore, the defendant could not rely on a motion made at his first trial to preserve issues for appeal at his later trial.

State v. King, 227 N.C. App. 390 (May. 21, 2013)

The trial court did not err by denying the defendant’s request for a special instruction concerning the effect of drug use on a witness’s credibility where the trial court gave the general witness credibility instruction. 

Nothing in U.S. Supreme Court precedent clearly establishes a rule that the Fifth Amendment requires a trial judge in a capital case to give the penalty phase jury an instruction that they should draw no adverse inferences from the defendant’s failure to testify. The Kentucky Supreme Court’s rejection of such a claim was not an objectively unreasonable application of law.

Two men attempted to rob the victim in a McDonald’s parking lot. One of the suspects fired a gun, and both suspects fled. The victim ran to a nearby parking lot, where he found a law enforcement officer. The victim told the officer what had occurred and described the suspects. Two suspects matching the description were located nearby a few minutes later. When officers approached, the defendant ran. He was apprehended a few minutes later. The victim was taken to the location where the defendant was apprehended, and the victim identified the defendant as the person with a gun who had tried to rob him earlier. The identification was recorded on one of the officer’s body cameras.

The defendant was indicted for attempted robbery with a dangerous weapon. He moved to suppress the victim’s show-up identification. The trial court denied the motion, and the defendant was convicted at trial. The defendant appealed, arguing that the trial court erred when it denied his motion to suppress evidence of the show-up identification and when it failed to instruct the jury about purported noncompliance with the North Carolina Eyewitness Identification Reform Act (“the Act”).

(1) G.S. 15A-284.52(c1) of the Act provides that

  • A show-up may only be conducted when a suspect matching the description of the perpetrator is located in close proximity in time and place to the crime, or there is reasonable belief that the perpetrator has changed his or her appearance in close time to the crime, and only if there are circumstances that require the immediate display of a suspect to an eyewitness;
  • A show-up may only be performed using a live suspect; and
  • Investigators must photograph a suspect at the time and place of the show-up to preserve a record of the suspect’s appearance at the time of the show-up.

The Court of Appeals determined that the trial court made findings that supported each of these requirements. The defendant, who matched the victim’s description, was detained less than a half-mile from the site of the attempted robbery. He was suspected of a violent crime that involved the discharge of a firearm and he fled when officers first attempted to detain him. These circumstances required an immediate display of the defendant. An armed suspect who is not detained poses an imminent threat to the public. And had the victim determined that the defendant was not the perpetrator, officers could have released the defendant and continued their search. Finally, the show-up involved a live suspect and was recorded on camera.

The Court of Appeals rejected the defendant’s argument that the Act requires law enforcement officers to obtain a confidence statement and information related to the victim’s vision. G.S. 15A-284.52(c2) requires the North Carolina Criminal Justice Education and Training Standards Commission to develop a policy regarding standard procedures for show-ups. The policy must address “[c]onfidence statements by the eyewitness, including information related to the eyewitness’ vision, the circumstances of the events witnessed, and communications with other eyewitnesses, if any.” The court reasoned that because G.S. 15A-284.52 does not place additional statutory requirements on law enforcement, but instead requires the North Carolina Criminal Justice Education and Training Standards Commission to develop nonbinding guidelines, only G.S. 15A-284.52(c1) sets forth the requirements for show-up identification compliance.

The court further determined that the show-up did not violate the defendant’s due process rights as it was not impermissibly suggestive and did not create a substantial likelihood of misidentification.

(2) G.S. 15A-284.52(d)(3) provides that when evidence of compliance or noncompliance with “this section” of the Act is presented at trial, the jury must be instructed that it may consider credible evidence of compliance or noncompliance to determine the reliability of eyewitness identifications. The defendant argued on appeal that he was entitled to a jury instruction on noncompliance with the Act because the officer did not obtain an eyewitness confidence level under G.S. 15A-284.52(c2)(2). The Court of Appeals rejected that argument on the basis that G.S. 15A-284.52(c2) concerns policies and guidelines established by the North Carolina Criminal Justice Education and Training Standards Commission, not the requirements for show-up identifications. Because the officers complied with the show-up procedures in G.S. 15A-284.52(c1), the defendant was not entitled to a jury instruction on noncompliance with the Act.

(No. COA13-925). For the reasons discussed in the case summarized immediately above, the court held that the trial court did not err by refusing to give a jury instruction requested by the defendant.

(No. COA13-661). The trial court did not err by refusing to instruct the jury about the results of recent research into factors bearing upon the accuracy of eyewitness identification evidence. The eyewitness identification instruction requested by the defendant was eight pages long and strongly resembled a New Jersey jury instruction. The trial court declined to give the defendant’s proffered instruction and gave an alternate one, as well as an instruction relating to the manner in which the jury should evaluate the validity of photographic identification procedures as required by G.S. 15A-284.52(d)(3), with this instruction including a lengthy recitation of the criteria for a proper identification procedure set out in G.S. 15A-284.52(b). Citing prior NC cases, the court held that “existing pattern jury instructions governing the manner in which jurors should evaluate the weight and credibility of the evidence and the necessity for the jury to find that the defendant perpetrated the crime charged beyond a reasonable doubt sufficiently address the issues arising from the presentation of eyewitness identification testimony.” The court went on to note the absence of any evidentiary support for the requested instruction. 

The State’s evidence tended to show that the defendant was driving a van with a trailer attached behind it when he cut off two motorcycles, made rude gestures, and caused one of the motorcycles to crash. The driver of the motorcycle sustained serious injuries and a passenger died as a result of the accident. The defendant slowed down briefly and then fled the scene. 

(1) The trial court did not err in denying the defendant’s motion to dismiss the charges of felony hit and run because there was sufficient evidence that the defendant knew or reasonably should have known, that the vehicle he was driving was involved in a crash and that someone was killed or seriously injured as a result. First, the defendant argued that there was insufficient evidence that he knew or reasonably should have known that the vehicle he was operating was involved in a crash or that the crash had resulted in serious bodily injury because the evidence could have shown that the defendant could not have seen behind his van and trailer or that there may not have been contact between the victim’s motorcycle and the defendant’s trailer. The Court of Appeals rejected this argument for multiple reasons, largely centering on evidence of the defendant’s awareness of the position of his vehicle relative to the motorcyclists and other traffic and evidence that the defendant slowed down immediately following the crash and then sped away at a high rate of speed.

(2) The defendant argued that the trial court erred in giving the jury an instruction on flight as evidence of the defendant’s consciousness of guilt because “leaving the scene of the offense, which could be considered flight under the challenged instruction, is an essential element of felony hit and run.” Slip op. at ¶ 37. The Court of Appeals disagreed with the defendant’s assertion that flight is an essential element of felony hit and run, explaining that flight requires some evidence of a defendant taking steps to avoid apprehension while a driver’s motive for leaving the scene of a crash for purposes of felony hit and run is immaterial. The court went on to find the instruction supported by evidence of the defendant speeding away, later lying about why his tire was blown out, and asking for directions to a destination that would allow him to arrive there without traveling on the interstate.

The defendant was charged and convicted of first-degree felony murder for the attempted robbery and fatal shooting of a taxi cab driver whom the defendant had summoned to his apartment complex. When the taxi cab arrived, witnesses saw a man shoot the driver, drag the driver from his car, and then rummage through his pockets. The shooter then ran to a white four-door car, which then left the apartment complex. 

Officers found a sweatshirt on the rear floorboard of the taxi cab with a prepaid cell phone inside. The cell phone contained photos of the defendant, his State-issued identification card, and his electric bill. The cell phone also contained texts between the defendant and another man regarding the defendant’s obtaining a handgun and his need for money to pay his electric bill. 

Officers went to the defendant’s home a short time later. The defendant agreed to come to the station for questioning and went there in his girlfriend’s car – a white, four-door car like the one that left the crime scene.

At his trial on first degree murder charges, the defendant requested an instruction on flight that permitted the jury to infer lack of guilt from the defendant’s decision not to flee when investigators approached him at his home. The trial court declined to provide the instruction. The jury found the defendant guilty of first-degree felony murder and he was sentenced to life in prison without the possibility of parole. The defendant appealed, arguing that the trial court erred by rejecting his proposed jury instruction.

The Court of Appeals determined that the trial court did not err in failing to give the instruction because the defendant’s request was not based on his conduct at the crime scene. Indeed, the evidence established that the shooter, who the State alleged was the defendant, fled the scene after shooting the victim. The Court explained that providing an instruction on lack of flight in these circumstances would inappropriately allow defendants “‘to make evidence for themselves by their subsequent acts.’” Slip op. at ¶ 17 (quoting State v. Burr, 341 N.C. 263, 297 (1995)). As a general rule, defendants are not allowed to use their failure to flee before arrest or to escape from jail as proof of innocence.

In addition, the Court held that even assuming that the trial court erred by refusing to give the instruction, the error was harmless in light of the State’s overwhelming evidence of the defendant’s guilt.

Judge Murphy concurred in part and concurred in the result only in part. He wrote separately to express his view that though the Court was bound by caselaw to reject the defendant’s argument, he agreed with the defendant that if courts were going to continue to instruct jurors that they could consider flight as evidence of guilt, jurors should be instructed in cases when the defendant did not flee that they could consider that as evidence of innocence.

After the defendant’s wife left him due to his drinking and violence, the defendant committed a number of threatening and destructive acts towards her that culminated in the defendant shooting his estranged wife twice in the head outside her work. The victim survived and called 911, and the defendant was arrested in the woods nearby a few hours later. The defendant was indicted for attempted first degree murder, assault with a deadly weapon with intent to kill, and possession of a firearm by a felon. The defendant was convicted of all charges, sentenced to consecutive terms of 207-261 months and 96-128 months in prison, and raised three arguments on appeal.

First, the defendant argued that the trial court committed plain error by admitting a cell phone video of him kicking a dog, claiming it was irrelevant, prejudicial, and improper character evidence. Since the defendant did not object to the video at trial, the appellate court only considered whether admission of the video rose to the level of plain error. Viewed in context, the video was insignificant when compared to the other overwhelming evidence of defendant’s guilt, such as witness testimony about his prior threats against the victim, his prior possession and use of a firearm that matched the one used to shoot his wife, his arrest nearby shortly after the shooting, matching ammunition found on his person when he was arrested, and the statements he made during his arrest. Therefore, the court held that it was not plain error to admit the video, since the defendant could not show that he was prejudiced by its admission even if it was error.

Next, the defendant argued that the trial court erred by allowing opinion testimony from the state’s firearms and ballistic expert, contending that it was not based on reliable principles or methods applied to the facts of the case. At trial and again on appeal, the defendant cited to studies and cases from other jurisdictions disputing the reliability of ballistics identification. The appellate court affirmed the trial court’s decision, and held that the evidence was properly admitted under Rule 702 based on the extensive voir dire of the witness which showed that her testimony was based on sufficient facts and data, was the product of reliable principles and methods, and those principles and methods were applied to the facts of the particular case. The appellate court stressed that its role was only to review the trial court’s decision under an abuse of discretion standard, and the record demonstrated that the lower court’s decision on this issue was reasoned and not arbitrary. Moreover, as in the first argument, even if it was error, the defendant could not show prejudice due to the overwhelming evidence of his guilt even without the challenged testimony.

Finally, the defendant argued that it was error to give a jury instruction on flight under the facts of this case, but the appellate court again disagreed. The court acknowledged that mere evidence of leaving the scene is not enough to support the instruction; there must also be some evidence of taking steps to avoid apprehension, but that evidence was present in this case. After shooting his wife, the defendant did not go home but was instead found five hours later near a wooded area. When the defendant and officers saw each other, the defendant entered the woods twice and a K-9 unit had to search for the defendant, eventually finding him curled up in a ball behind a large tree. Viewed in the light most favorable to the state, there was at least some evidence reasonably supporting the theory that the defendant fled.

Judge Zachary concurred with two of the majority’s conclusions, but dissented as to the admission of the forensic firearms expert testimony based on the dispute regarding the error rate and reliability of the analysis.

The defendant was charged with four counts of engaging in sexual acts against a child under 13 and taking indecent liberties with a child. The defendant was alleged to have touched a child, A.M.D., in sexual manner on several occasions over a period of one to two years. The state’s evidence at trial consisted primarily of testimony from the victim, A.M.D., and corroborating testimony from other witnesses to whom she had disclosed the abuse. 

After the allegations in this case came to light, the defendant left the area and could not be located. The lead detective sought assistance from the U.S. Marshals, and the defendant was eventually located in and extradited from Puerto Rico. Defendant argued that the trial court erred by allowing the detective to testify about the extradition since he had no direct personal knowledge about what transpired, and argued that the court erred a second time by instructing the jury on flight. The defendant did not raise either objection at trial, so the issues were restricted to plain error review. The appellate court held that it was not plain error to allow testimony about extradition since the detective had personal knowledge based on his own attempts to locate the defendant, his act of soliciting help from the Marshals, and his oversight of the whole case as lead detective. Even if it was error, it was not prejudicial since the jury also heard testimony that the defendant escaped from jail pending trial and was recaptured hiding in a nearby home. The jury instruction on flight was likewise proper, since defendant altered his usual routine after the accusations by leaving and staying away until he was located and extradited, reasonably supporting the state’s position that he fled to avoid apprehension.

In this assault case, the trial court did not err by instructing the jury that it could consider the defendant’s alleged flight as evidence of guilt. The court began: “The probative value of flight evidence has been ‘consistently doubted’” in our legal system, and we note at the outset that we similarly doubt the probative value of Defendant’s alleged flight here.” However, it went on to conclude that the evidence supports a flight instruction. Specifically, witnesses testified that the defendant ran from the scene of the altercation.

In this burning case, the trial court erred by instructing the jury on flight. Here, the evidence raises no more than suspicion and conjecture that the defendant fled the scene. Moreover, there is no evidence that the defendant took steps to avoid apprehension. The error however was not prejudicial.

In this assault and discharging a firearm into occupied property case, the trial court did not abuse its discretion by providing a jury instruction on flight. The defendant fired his weapon at the victims as a vehicle carrying the defendant sped from a gas station. The court rejected the defendant’s argument because he was a passenger in the car—and not the driver—that there was no evidence supporting a flight instruction. The court noted that the bar for an instruction on flight “is low.” Here, the defendant fired his gun while the vehicle in which he was a passenger was speeding away from the gas station; the defendant later told the driver to stop at a specified location and then abandoned the vehicle and left the area on foot; and the defendant intentionally disposed of his weapon shortly thereafter. This evidence “plainly supports an instruction on flight in spite of the fact that Defendant was not actually driving the [vehicle] when it fled the … station.”

In this child abuse case, the trial court committed prejudicial error by giving a flight instruction where there was no evidence upon which a reasonable theory of flight could be based. The court explained: “what the trial court deemed a ‘close call’ in terms of defendant’s alleged flight amounted to mere conjecture.” It rejected the State’s argument that the defendant’s refusal to speak with law enforcement on a voluntary, pre-arrest basis was evidence of flight. It also rejected the State’s argument that there was evidence that the defendant deviated from his normal pattern of behavior, showing efforts to avoid apprehension. 

State v. Huey, 243 N.C. App. 446 (Oct. 6, 2015) rev’d on other grounds, 370 N.C. 174 (Sep 29 2017)

In this homicide case, the trial court properly instructed the jury on flight where evidence showed that the defendant shot the victim, got into his vehicle, drove off for a short period of time, and returned; the firearm used to shoot the victim was never recovered. Noting that mere evidence that the defendant left a crime scene is not enough to support an instruction on flight, the court found that here there was evidence that the defendant took steps to avoid apprehension. Specifically the evidence supported the theory that the defendant drove away briefly to dispose of the firearm used in the homicide.

In this felony breaking and entering and larceny case where the victim discovered the defendant in his home, the trial court did not err by instructing the jury regarding flight where the victim testified that when he approached his front door and saw the defendant in his living room, the defendant looked at the victim and ran out the back door. 

State v. Davis, 226 N.C. App. 96 (Mar. 19, 2013)

In a homicide case, the trial court did not err by instructing on flight. The State’s evidence showed that officers were unable to locate the defendant for several months following the shooting. The defendant resided at his aunt’s house before the 2:30 am shooting and instead of returning there, he left the state and went to Florida. The court rejected the defendant’s argument that his presence in Florida, his home state, was not indicative of whether he avoided apprehension.

The trial court erred by instructing on flight. The defendant fled from an officer responding to a 911 call regarding violation of a domestic violence protective order. After being arrested the defendant’s vehicle was searched and he was charged with perpetrating a hoax on law enforcement officers by use of a false bomb on the basis of a device found in his vehicle. The defendant’s initial flight cannot be considered as evidence of his guilt of the hoax offense. However, the error did not prejudice the defendant.

State v. Lawrence, 210 N.C. App. 73 (Mar. 1, 2011) rev’d on other grounds, 365 N.C. 506 (Apr 13 2012)

The evidence was sufficient to warrant an instruction on flight. During the first robbery attempt, the defendant and a co-conspirator fled from a deputy sheriff. During the second attempt, the defendant fled from an armed neighbor. After learning of the defendant’s name and address, an officer canvassed the neighborhood, looking for the defendant. The defendant was later arrested in another state.

In a kidnapping, sexual assault, and murder case, the trial court did not err by instructing the jury on flight. The defendant and an accomplice left the victims bound, placed a two-by-four across the inside of the apartment door, hindering access from the outside, and exited through a window. Despite the fact that the defendant lived at the apartment, there was no indication he ever returned. Although a warrant for the defendant’s arrest was issued immediately, ten years passed before the defendant was extradited. 

There was sufficient evidence to support an instruction on flight. A masked man robbed a store and left in a light-colored sedan. Shortly thereafter, an officer saw a vehicle matching this description and a high speed chase ensued. The vehicle was owned by the defendant. The driver abandoned the vehicle; a mask and a gun were found inside. Although the defendant initially reported that his car was stolen, he later admitted that his report was false. The court rejected the defendant’s argument that the instruction was improper because there was only circumstantial evidence that defendant was the person who fled the scene.

The trial judge did not err by instructing on flight where the defendant failed to appear for a court date in the case.

In a child sexual assault case, the trial court did not err by refusing the defendant’s request to instruct the jury that it could consider evidence concerning his character for honesty and trustworthiness as substantive evidence of his guilt or innocence. At trial, five witnesses testified that the defendant was honest and trustworthy. The defendant requested an instruction in accordance with N.C.P.J.I. 105.60, informing the jury that a person having a particular character trait “may be less likely to commit the alleged crime(s) than one who lacks the character trait” and telling the jury that, if it “believe[d] from the evidence [that the defendant] possessed the character trait” in question, it “may consider this in [its] determination of [Defendant’s] guilt or innocence[.]” The trial court would have been required to deliver the requested instruction if the jury could reasonably find that an honest and trustworthy person was less likely to commit the crimes at issue in this case than a person who lacked those character traits. Although “an individual’s honesty and trustworthiness are certainly relevant to an individual’s credibility, we are unable to say that a person exhibiting those character traits is less likely than others to commit a sexual offense [such as the ones charged in this case].”

(1) In this case in which the defendant was convicted of several felonies, including attempted murder, assault with intent to kill, burglary, and numerous attempted sex offenses, the trial court did not err in responding to the deliberating jury’s request that it explain the “legal definition of intent.” The State proposed that the court read to the jury the pattern instruction on intent, N.C.P.I. -Crim. 120. 10. This instruction includes a footnote setting out additional, optional instructions related to specific intent and general intent. The defendant was charged with multiple offenses, including both specific intent and general intent crimes. The defendant asked the trial court to read a special instruction pertaining only to specific intent and referencing only the charged crimes that required specific intent, omitting the charged general intent crimes. The State objected to the defendant’s proposed instruction on grounds that it was too specific and did not answer the question that the jury asked. The trial court gave State’s instruction, adding an additional sentence. The trial court’ decision to give the State’s instruction was well within its broad discretion. (2) The defendant failed to preserve for review language in the trial court’s instruction on intent that deviated from the pattern instruction. Specifically, the defendant failed to object to the additional sentence when proposed by the trial court. The court noted that the defendant failed to argue plain error on appeal.

(1) In this first-degree murder case, the trial court did not err by declining to give the defendant’s requested special jury instruction regarding potential bias of a State’s witness. Because the issue involves the trial court’s choice of language in jury instructions, the standard of review was abuse of discretion. With respect to witness Brown, the defendant requested a special jury instruction stating: “There is evidence which tends to show that a witness testified with the hope that their testimony would convince the prosecutor to recommend a charge reduction. If you find that the witness testified for this reason, in whole or in part, you should examine this testimony with great care and caution. If, after doing so, you believe the testimony, in whole or in part, you should treat what you believe the same as any other believable evidence.” The trial court denied the requested special instruction and gave the pattern jury instruction on interested witnesses and informants, N.C.P.I. 104.20; 104.30, and the general pattern jury instruction concerning witness credibility, N.C.P.I. 101.15. Considering the facts of the case, the court found that the trial court’s charge to the jury, taken as a whole, was sufficient to address the concerns motivating the defendant’s requested instruction. The entire jury charge was sufficient to apprise the jury that they could consider whether Brown was interested, biased, or not credible; was supported by the evidence; and was in “substantial conformity” with the instruction requested by the defendant. The court further noted that the defendant’s requested instruction—that Brown testified with the hope that his testimony would convince the prosecutor to recommend a charge reduction—was not supported by the law or the evidence; there was no possibility that Brown could receive any charge reduction because he had no pending charges at the time of his testimony. Even if the trial court erred with respect to the jury instruction, the defendant could not demonstrate prejudice.

(2) In this murder case, the trial court did not err by allowing a State’s witness to testify, over objection, about a jailhouse attack. Witness Brown testified that he was transferred to the county courthouse to testify for the State at a pretrial hearing. When he arrived, the defendant—who was present inside a holding cell--threatened Brown and made a motion with his hands “like he was going to cut me. He was telling me I was dead.” After Brown testified at the pretrial hearing, he was taken back to the jail and placed in a pod across from the defendant, separated by a glass window. The defendant stared at Brown through the window and appeared to be “talking trash.” A few minutes later “somebody came to him and threatened him” for testifying against the defendant. Soon after Brown returned to his cell, the same person who had threatened him moments earlier came into the cell and assaulted Brown, asking him if he was telling on the defendant. On appeal the defendant argued that evidence of the jailhouse attack was both irrelevant and unduly prejudicial.

            The evidence regarding the jailhouse attack was relevant. The defendant’s primary argument on appeal was that there was no evidence that the defendant knew about, suggested, or encouraged the attack. The court disagreed noting, among other things that the defendant stared at Brown through the window immediately before the assailant approached and threatened Brown, and that the assailant asked Brown if he was telling on the defendant. This testimony “clearly suggests” that the defendant “was, at minimum, aware of the attack upon Brown or may have encouraged it.” Evidence of attempts to influence a witness by threats or intimidation is relevant. Additionally, Brown testified that he did not want to be at trial because of safety concerns. A witness’s testimony about his fear of the defendant and the reasons for this fear is relevant to the witness’s credibility. Thus the challenged testimony is clearly relevant in that it was both probative of the defendant’s guilt and of Brown’s credibility.

            The court went on to find that the trial court did not abuse its discretion by admitting the challenged testimony under Rule 403, finding that the defendant failed to demonstrate how the challenged testimony was unfairly prejudicial or how its prejudicial effect outweighed its probative value.

The trial court did not err by denying the defendant’s request for a jury instruction on the testimony of an interested witness (N.C.P.I.-Crim. 104.20), where it gave a different instruction leaving “no doubt that it was the jury’s duty to determine whether the witness was interested or biased.”

State v. Lalinde, 231 N.C. App. 308 (Dec. 3, 2013) review granted, 367 N.C. 503 (Jun 11 2014)

Where the evidence showed that part of a child abduction occurred in North Carolina jurisdiction was established and no jury instruction on jurisdiction was required. The defendant took the child from North Carolina to Florida. The court noted that jurisdiction over interstate criminal cases is governed by G.S. 15A-134 ("[i]f a charged offense occurred in part in North Carolina and in part outside North Carolina, a person charged with that offense may be tried in this State"). It was undisputed that the defendant picked up the child in North Carolina. Therefore, the child abduction occurred, at least in part, in North Carolina. 

The trial court did not err by failing to provide a jury instruction with respect to the audio recording. The court noted that in State v. Nance, 157 N.C. App. 434 (2003), it held that the trial court did not err by declining to give a special instruction requested by the defendant concerning lost evidence when the defendant failed to establish that the police destroyed the evidence in bad faith and that the missing evidence possessed an exculpatory value that was apparent before it was lost. As in this case, the defendant failed to make the requisite showing and the trial court did not err by declining to give the requested instruction.

(1) In this impaired driving second-degree murder case, the court rejected the defendant’s argument that the trial court’s instruction on proximate cause was erroneous and that the trial court committed plain error by failing to instruct the jury on intervening negligence. The trial court instructed the jury that it had to find that “[T]he death of the victim was proximately caused by the unlawful act of the defendant” and that “[T]he State must prove beyond a reasonable doubt only that the defendant’s negligence was a proximate cause.” The court rejected the notion that the jury probably would have reached a different result if an instruction on intervening negligence was given. Overwhelming evidence showed that the defendant drove through a red light while grossly impaired and caused the crash. The only evidence hinting that the victim may have been negligent in causing the crash was the defendant’s offhand question to an officer who arrived on the scene about whether the officer had tested “the person that ran the red light.” Even if the victim had somehow been negligent, her negligent would most be a concurring proximate cause of her own death. (2) The trial court did not err in instructing the jury with respect to proximate cause as to the charge of felonious serious injury by vehicle. The defendant argued that the language of the statute “forecloses the possibility of the state proving proximate cause in conjunction with some other concurrent cause.” The court disagreed, citing prior case law rejecting this argument.

In this involuntary manslaughter case, the trial court did not commit plain error by failing to instruct the jury that foreseeability was an essential element of proximate cause. The court noted that foreseeability is an essential element of proximate cause. It further noted that a trial court should, as a general proposition, incorporate a foreseeability instruction into its discussion of proximate cause when the record reflects the existence of a genuine issue as to whether the injury which resulted from a defendant’s allegedly unlawful conduct was foreseeable. But on the facts of this case, the court found that no plain error occurred.

No plain error occurred when the trial court in its preliminary instructions before jury selection referred to reasonable doubt as “fair doubt” but correctly defined that term in its final instructions to the jury.

State v. Foye, 220 N.C. App. 37 (Apr. 17, 2012)

The trial court did not commit plain error in its jury instruction on reasonable doubt. When reinstructing on this issue, the trial court gave the pattern instruction and added: “[r]emember, nothing can be proved 100 percent basically, but beyond a reasonable doubt. So you have to decide for yourself what is reasonable, what makes sense.” The court also held that this additional instruction did not violate the trial court’s duty of impartiality or coerce a verdict.

 

In this felony murder case based on the underlying felony of assault with a deadly weapon with intent to kill inflicting serious injury, the trial court erred by not instructing the jury on self-defense and the doctrine of transferred intent.  The evidence at trial showed that the defendant and a friend arrived at the apartment of Beth and Jon intending to buy marijuana from Jon.  By the time the defendant and his friend left the apartment, Jon, Beth, and the defendant had been shot.  Jon died as a result.  The defendant testified that while in the apartment living room, he picked up a gun he found on a coffee table because “it looked cool,” which caused Jon to become aggressive and Beth to emerge from a bedroom pointing a gun at the defendant.  After convincing Beth to drop her weapon by threatening to kill Jon, the defendant testified that he ran from the apartment, saw Jon pull a gun, and felt himself be shot in the side.  This caused the defendant to shoot in Jon’s direction “as best as [he] could” and “intentionally” at him.  The court explained that this testimony taken in the light most favorable to the defendant entitled him to a jury instruction on perfect self-defense for any shot intended for Jon because , if believed, it showed (1) he subjectively believed that he was going to die if he did not return fire; (2) such a belief was reasonable; (3) he was not the aggressor; and (4) did not use excessive force.  Further, he was entitled to an instruction on self-defense through transferred intent for the AWDWIKISI charge relating to Beth as her injury could have been caused by a bullet intended for Jon.  The trial court correctly gave a self-defense instruction on premeditated murder but erred by refusing to give the defendant’s requested self-defense instruction on felony murder or any underlying felony, including the assault.  This error was prejudicial because it impaired the defendant’s ability to present his defense to felony murder and the assault charge. 

In addition, the Court of Appeals erred by remanding the case for entry of a judgment convicting the defendant of second-degree murder, a verdict the jury returned after the trial court accepted a partial verdict on the felony murder charge and directed the jury to continue to deliberate on the premeditated murder charge.  The trial court’s decision to require continued deliberation and its associated instructions could have resulted in an improper finding by the jury that the defendant was guilty of second-degree murder.  Thus, the court remanded for a new trial on all charges.

Justice Newby dissented, stating his view that the trial court’s jury instructions, which included a general transferred-intent instruction but not the specific instruction requested by the defendant, enabled the defendant to make the jury argument he desired.  Justice Newby interpreted the jury’s verdicts as a rejection of the defendant’s self-defense theory.

 

The defendant was indicted for attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and possession of a firearm by a felon. On June 7, 2016, the defendant was sitting outside of a neighbor’s house with a group of friends when the defendant’s house guest, Garris, approached defendant and punched him. The defendant got up and began walking home, followed by Garris. When the defendant arrived at his residence, he was thrown against the door and hurled over two chairs by Garris. Garris left the residence and returned with a friend, at which time he continued to strike the defendant. Garris left the home a second time and returned shortly thereafter. At that time, the defendant retrieved a gun and shot Garris, injuring him.

At trial, the defendant gave notice of his intent to rely on self-defense. The trial court denied the defendant’s requested instruction to the jury on self-defense and the defense of habitation. The jury found the defendant guilty of assault with a deadly weapon inflicting serious injury and possession of a firearm by a felon. On appeal, the defendant argued that the trial court erred by (1) denying his request to instruct the jury on self-defense, (2) failing to instruct the jury on the “stand-your-ground” provision, and (3) denying his request to instruct the jury on the defense of habitation. The Court of Appeals agreed, concluding that there was a reasonable possibility that the jury would have reached a different result if the defendant’s requested jury instruction had been given to the jury.

The Supreme Court upheld the decision of the Court of Appeals, concluding that, viewing the evidence at trial in the light most favorable to the defendant, the defendant was entitled to both instructions. The Court recognized that “the right to use deadly force to defend oneself is provided both by statute and case law.” The defendant relied on both the self-defense statute, G.S. 14-51.3, and the defense of habitation statute, G.S. 14-51.2. The Court reviewed both, as well as the right not to retreat when defending against an aggressor. The Court determined that the defendant in the instant case presented competent and sufficient evidence to warrant the self-defense instruction.

The dissenting Court of Appeals judge focused primarily on the defendant’s testimony at trial about the firing of a warning shot, concluding that the warning shot rebutted the statutory presumption of “reasonable fear of imminent death or serious bodily harm” and thereby precluding a jury instruction on self-defense and defense of habitation. The Court noted that the dissenting Court of Appeals judge’s perspective ignored the principle that although there may be contradictory evidence from the State or discrepancies in the defendant’s evidence, the trial court must nonetheless charge the jury on self-defense where there is evidence that the defendant acted in self-defense.

Confronting a question of first impression, the court held that “in narrow and extraordinary circumstances” the common law defense of justification may be an affirmative defense to a charge of possession of a firearm by a felon under G.S. 14-415.1.  Noting that justification is an affirmative defense which a defendant carries the burden of proving at trial, the court joined the Court of Appeals in adopting an analysis from United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000) andheld that a defendant invoking justification as a defense to a violation of G.S. 14-415.1 must show: 

(1) that the defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury; (2) that the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) that the defendant had no reasonable legal alternative to violating the law; and (4) that there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.

Having established that justification is a defense to a violation of G.S. 14-415.1, the court examined whether the defendant in this case was entitled to a jury instruction on the defense.  Such an instruction is required, the court explained, when each of the four “Deleveaux factors” is supported by evidence taken in the light most favorable to the defendant.  The defendant’s evidence suggested that he was under a qualifying threat as it showed that he and two friends, J and Wardell, arrived to his home to find that a group of fifteen people, some of whom were armed, had assembled at the home intending to fight the defendant.  As tensions elevated towards violence, the defendant took Wardell’s gun as Wardell seemed unfamiliar with it and, in the defendant’s view, would be unable to use it in their defense.  The court concluded that there was evidence of each of the Deleveaux factors under these facts and that the trial court committed prejudicial error by denying the defendant’s request to instruct the jury on the defense.

A dissenting justice, Justice Morgan, “welcom[ed] the establishment of the justification defense” for this criminal offense but did not believe that the evidence in the instant case was sufficient to require the trial judge to give the instruction.

In a 5-to-1 decision, the Court affirmed the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 817 S.E.2d 500 (2018) (unpublished), finding that the trial court did not err in refusing to instruct the jury on self-defense or imperfect self-defense in the stabbing death of the victim. Relying on previous decisions, the majority found that the defendant was not entitled to self-defense instructions because he referred to the stabbing as “the accident,” stated that his purpose in getting a knife was because he was “scared” that the victim was going to try to hurt him, and that what he sought to do with the knife was to make the victim leave. The majority found that the defendant’s testimony did not establish that he feared death or great bodily harm as a result of the victim’s actions or that he inflicted the fatal blow to protect himself from such harm. Because the defendant failed to present evidence that he formed a reasonable belief that it was necessary for him to fatally stab the victim in order to protect himself from death or great bodily harm, he was not entitled to an instruction on perfect or imperfect self-defense. The dissent criticized the majority for usurping the jury’s role in determining whether the killing was justified; imposing a “magic words” requirement for the defendant’s testimony; disregarding evidence favorable to the defendant and crediting contradictory evidence; and failing to take into account that the defendant was inarticulate. The opinions do not discuss the statutes on self-defense in North Carolina. [John Rubin blogged about this decision here.]

On writ of certiorari from a divided decision of the Court of Appeals, ___ N.C. App. ___, 811 S.E.2d 215 (2018), the court held that the trial court’s decision to include an “aggressor” instruction in its self-defense instructions did not constitute plain error. The trial court, without any defense objection instructed the jury on self-defense, stating that the defendant would not be excused from murder or manslaughter on self-defense grounds if he “was the aggressor with the intent to kill or inflict serious bodily harm upon the deceased.” According to the defendant, no evidence was introduced showing him to be the aggressor. The court noted however that because he did not object to the instruction at trial, he waived his right to challenge the aggressor instruction on appeal. Applying the plain error standard, the court found it not satisfied. It noted that the defendant sent multiple text messages to another individual in the hours before the victim’s death indicating that he wanted to kill the victim. Additionally, the record contains no physical evidence tending to validate the defendant’s otherwise unsupported claim of self-defense and does contain substantial physical evidence tending to undercut this claim, including evidence that the victim sustained defensive wounds to her hand, that she sustained stab wounds inflicted from the rear, and that the defendant’s wounds were much less severe than those inflicted upon the victim. As a result, given that the defendant’s claim to have acted in self-defense rested on his otherwise unsupported testimony and that the record contained ample justification for questioning the credibility of the defendant’s account surrounding the victim’s death, the court found itself unable to conclude that any error associated with the instruction rose to the level of plain error.

State v. Bass, 371 N.C. 535 (Oct. 26, 2018)

On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 802 S.E.2d 477 (2017), the court affirmed, holding that the trial court committed prejudicial error by omitting stand-your-ground language from the self-defense jury instructions. The incident in question occurred outside of the Bay Tree Apartments. The defendant gave notice of his intent to pursue self-defense and throughout the trial presented evidence tending to support this defense. At the charge conference, the defendant requested that the jury charge include language from Pattern Jury Instruction 308.45 providing, in relevant part, that the defendant has no duty to retreat in a place where the defendant has a lawful right to be and that the defendant would have a lawful right to be at his place of residence. Believing that the no duty to retreat provisions applies only to an individual located in his own home, workplace, or motor vehicle, the trial court declined to give the requested instruction. After deliberations began, the jury asked for clarification on duty to retreat. Outside the presence of the jury, the defendant again requested that the trial court deliver a no duty to retreat instruction, this time pointing to Pattern Jury Instruction 308.10, including its language that the defendant has no duty to retreat when at a place that the defendant has a lawful right to be. The trial court again concluded that because the defendant was not in his residence, workplace, or car, the no duty to retreat instruction did not apply. The Court of Appeals held that the trial court committed reversible error in omitting the no duty to retreat language from its instruction. Reviewing the relevant statutes, the Supreme Court affirmed this holding, concluding that “wherever an individual is lawfully located—whether it is his home, motor vehicle, workplace, or any other place where he has the lawful right to be—the individual may stand his ground and defend himself from attack when he reasonably believes such force is necessary to prevent imminent death or great bodily harm to himself or another.”

On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 789 S.E.2d 679 (2016), the court reversed because of errors in the jury instructions on self-defense. At trial, the parties agreed to the delivery of N.C.P.I.–Crim. 206.10, the pattern instruction on first-degree murder and self-defense. That instruction provides, in relevant part: “Furthermore, the defendant has no duty to retreat in a place where the defendant has a lawful right to be.” Additionally, N.C.P.I.–Crim. 308.10, which is incorporated by reference in footnote 7 of N.C.P.I.–Crim. 206.10 and entitled “Self-Defense, Retreat,” states that “[i]f the defendant was not the aggressor and the defendant was . . . [at a place the defendant had a lawful right to be], the defendant could stand the defendant’s ground and repel force with force.” Although the trial court agreed to instruct the jury on self-defense according to N.C.P.I.–Crim. 206.10, it ultimately omitted the “no duty to retreat” language of N.C.P.I.–Crim. 206.10 from its actual instructions without prior notice to the parties and did not give any part of the “stand-your-ground” instruction. Defense counsel did not object to the instruction as given. The jury convicted defendant of second-degree murder and the defendant appealed. The Court of Appeals affirmed the conviction, reasoning that the law limits a defendant’s right to stand his ground to any place he or she has the lawful right to be, which did not include the public street where the incident occurred. The Supreme Court allowed defendant’s petition for discretionary review and reversed.

(1) The court held that when a trial court agrees to give a requested pattern instruction, an erroneous deviation from that instruction is preserved for appellate review without further request or objection. Here, because the trial court agreed to instruct the jury in accordance with N.C.P.I.–Crim. 206.10, its omission of the required stand-your-ground provision substantively deviated from the agreed-upon pattern jury instruction, thus preserving this issue for appellate review.

(2) By omitting the relevant stand-your-ground provision, the trial court’s jury instructions were an inaccurate and misleading statement of the law. The court concluded, in part, that “[c]ontrary to the opinion below, the phrase “any place he or she has the lawful right to be” is not limited to one’s home, motor vehicle, or workplace, but includes any place the citizenry has a general right to be under the circumstances.” Here, the defendant offered ample evidence that he acted in self-defense while standing in a public street, where he had a right to be when he shot the victim. Because the defendant showed a reasonable possibility that, had the trial court given the required stand-your-ground instruction, a different result would have been reached at trial, the court reversed the Court of Appeals, finding that the defendant was entitled to a new trial.

State v. Cook, 370 N.C. 506 (Mar. 2, 2018)

The court per curiam affirmed a divided panel of the Court of Appeals, ___ N.C. App. ___, 802 S.E.2d 575 (2017). In this assault on a law enforcement officer case, the court of appeals held, over a dissent, that the trial court did not err by denying the defendant’s request for a self-defense instruction. While executing a warrant for the defendant’s arrest at his home, an officer announced his presence at a bedroom door and stated that he was going to kick in the door. The officer’s foot went through the door on the first kick. The defendant fired two gunshots from inside the bedroom through the still-unopened door and the drywall adjacent to the door, narrowly missing the officer. The charges at issue resulted. The defendant testified that he was asleep when the officer arrived at his bedroom door; that when his girlfriend woke him, he heard loud banging and saw a foot come through the door “a split second” after waking up; that he did not hear the police announce their presence but did hear family members “wailing” downstairs; that he was “scared for [his] life . . . thought someone was breaking in the house . . . hurting his family downstairs and coming to hurt [him] next;” and that he when fired his weapon he had “no specific intention” and was “just scared.” Rejecting the defendant’s appeal, the court of appeals explained: “our Supreme Court has repeatedly held that a defendant who fires a gun in the face of a perceived attack is not entitled to a self-defense instruction if he testifies that he did not intend to shoot the attacker when he fired the gun.” Under this law, a person under an attack of deadly force is not entitled to defend himself by firing a warning shot, even if he believes that firing a warning shot would be sufficient to stop the attack; he must shoot to kill or injure the attacker to be entitled to the instruction. This is true, the court of appeals stated, even if there is, in fact, other evidence from which a jury could have determined that the defendant did intend to kill the attacker.

Reversing the Court of Appeals, the Supreme Court held that the trial court’s self-defense instructions were not erroneous. The court began by considering whether “North Carolina law allows an aggressor to regain the right to utilize defensive force based upon the nature and extent of the reaction that he or she provokes in the other party.” Although historically North Carolina law did not allow an aggressor using deadly force to regain the right to exercise self-defense when the person to whom his or her aggression was directed responds by using deadly force in defense, changes in statutory law allow aggressor to regain that right under certain circumstances. But, G.S. 14-51.4(2)(a), allowing an aggressor to regain the right to utilize defensive force under certain circumstances, does not apply where the aggressor initially uses deadly force against the person provoked. Thus, the trial court did not err by instructing that a defendant who was the aggressor using deadly force had forfeited the right to use deadly force and that a person who displays a firearm to his opponent with the intent to use deadly force against him or her and provokes the use of deadly force in response is an aggressor. The court continued, noting that it also must determine whether the trial court erred by failing to instruct the jury, in accordance with the defendant’s request, that he might have regained the right to use defensive force based on the victim’s reaction to any provocative conduct in which the defendant might have engaged. The court concluded that a defendant “could have only been entitled to the delivery of such an instruction to the extent that his provocative conduct involved non-deadly, rather than deadly, force.” Here, there was a complete absence of any evidence tending to show that the defendant used non-deadly force. 

In this case where the defendant and his neighbor exchanged gunfire after an argument about the victim’s dogs killing the defendant’s cat, the trial court erred by denying the defendant’s request for a jury instruction on self-defense.  In the light most favorable to the defendant, the evidence at trial tended to show that the defendant confronted the victim at the victim’s residence because the victim’s dogs had killed the defendant’s cat and were still at large.  During this confrontation, the victim struck the defendant with a piece of lumber, causing the defendant to brandish a pistol he was carrying legally.  The defendant did not threaten to use the pistol or point it at the victim.  The victim then went inside his residence, retrieved his own pistol, and came back outside firing it at the defendant, who was at that time walking away.  The defendant, who was grazed by a bullet, returned fire, striking the victim in the leg.  The State argued that the defendant was not entitled to an instruction on self-defense because he was the aggressor by virtue of brandishing his firearm.  The court held that a jury could have determined that the defendant was permitted to brandish his firearm, and did not thereby become the aggressor, because he had a reasonable belief it was necessary to protect himself from death or great bodily harm after the victim struck him with the lumber.  Consequently, it was reversible error for the trial court to deny the defendant’s request for a self-defense jury instruction.

The court went on to determine that even assuming for argument that the defendant was the initial aggressor by virtue of brandishing his firearm, he regained the right to use force in self-defense when the victim reemerged from the residence and fired on him as the defendant was in the process of walking away from the residence towards his vehicle to leave.  The court explained that walking away and towards his vehicle clearly announced the defendant’s intention to withdraw from the encounter.

Judge Tyson fully concurred with the majority opinion but wrote separately to address additional issues the defendant raised on appeal but that the majority did not reach.  Those additional issues were: (1) whether the trial court erred by limiting the defendant’s cross-examination about the victim’s prior felony conviction and his possession of a firearm; (2) whether the trial court erred in preventing inquiry into an agreement between the State and the victim in exchange for his testimony; (3) whether the trial court erred by preventing the defendant from testifying about an after-the-fact reconciliation with the victim.

In this assault with a deadly weapon inflicting serious injury case, the trial court did not err by declining to instruct the jury on the defendant’s requested instruction on the defense of habitation. The victim was riding on his ATV when the defendant attacked him from behind and stabbed him with a steak knife, thinking the victim was on his (the defendant’s) property. During the attack, the victim said “I don’t know who you are.” After the victim identified himself and told the defendant he had permission to ride on the property, the defendant renewed his attack. The defendant testified that the purpose of the attack was get an intruder off his premises, although he also said that he was not aware of the property line. The trial court denied the defendant’s request to instruct the jury on self-defense and defense of habitation, based on the fact that the the victim was not operating the ATV in the curtilage of the defendant’s home and the defendant did not even know where the property line was. The Court affirmed the trial court’s denial of the defendant’s request for an instruction on defense of habitation when there was no evidence that the victim had entered or was in the process of entering his home as required by G.S. 14-51.2(b)(1). Though the definition of “home” includes the home’s curtilage, it does not include an area 200–250 feet away from the defendant’s residence, and apparently not on the defendant’s property at all.

The defendant was convicted after a jury trial of first-degree murder, attempted first-degree murder, and other serious felony charges after he shot and killed his former girlfriend and then pistol-whipped and fired a gun at another woman, a registered nurse. The court rejected the defendant’s argument that the trial court erred by failing to give a self-defense instruction despite the defendant’s request for instructions on both perfect and imperfect self-defense. The defendant’s testimony that he did not recall shooting the first victim and his expert’s testimony that he acted involuntarily defeated his self-defense argument.

The defendant shot and killed a police officer while the officer was approaching the defendant’s car to serve arrest warrants on him in Robeson County. The defendant claimed that he had been the victim of several recent attempted murders and was “on edge,” so that when he saw the plainclothes officer approaching with a gun on his waist, he fired on the officer from his car. The defendant testified that he thought the victim-officer was going to kill him when he saw the officer’s gun but acknowledged that the gun was not raised or pointed at him. The trial court refused to instruct the jury on self-defense or voluntary manslaughter, finding that the defendant was not under the threat of deadly force. The defendant was convicted of second-degree murder.

The trial court must instruct on all “substantial features” supported by the evidence in a case. If the defendant presents competent evidence in support of self-defense, viewed in the light most favorable to the defendant, the jury should be instructed on self-defense. “Competent evidence of self-defense is evidence that it ‘was necessary or reasonably appeared to be necessary’ for the defendant ‘to kill his adversary in order to protect himself from death or great bodily harm.’” Id. at 8. The reasonableness of a defendant’s belief of threat is judged by an objective standard. Here, even in the light most favorable to the defendant, the evidence did not establish an objective reasonable belief of death or serious harm as a matter of law. The defendant’s testimony showed that the defendant saw a gun as the officer left his vehicle, that the officer looked at the defendant “real mean,” and that the gun was not pointed at the defendant. “In the mind of a person of ordinary firmness, this evidence would not permit the use of deadly force on a complete stranger getting out of a nearby car. Accordingly, the trial court properly declined to give the requested instruction on self-defense.” Id. at 11.  For the same reason—insufficient evidence supporting self-defense (perfect or imperfect)—the defendant was also not entitled to an instruction on voluntary manslaughter. The trial court was therefore unanimously affirmed.

In this second-degree murder case, the trial court (1) did not abuse its discretion by denying the defendant’s motion for a jury view; (2) did not err with respect to a jury instruction on self-defense; and (3) correctly sentenced the defendant at prior-record level IV.

The trial court did not abuse its discretion by denying the defendant’s motion requesting a jury view of the crime scene, which the defendant argued was important to give the jury “an accurate view of what [the testifying eyewitnesses] would have been able to see and what kind of obstruction would have been in the line of sight that they would have, the area where this was occurring, as well as the distance involved[.]”. In reaching its reasoned decision to deny the motion, the trial court considered the availability of photographs, diagrams, and other material” and noted that the alleged crime occurred during daylight.

As to the instruction on self-defense, the defendant argued that the trial court erred in instructing the jury that the defendant “believed it was necessary to kill the victim in order to save the defendant from death or great bodily harm” and instead should have instructed that the defendant “believed it was necessary to use deadly force against the victim,” a modification contemplated by the pattern jury instruction on self-defense in murder cases in situations where the evidence shows that a defendant intended to use deadly force to disable but not to kill the victim (N.C.P.I. – Crim. 206.10 n.4).  The court recognized that this argument raised the unsettled issue of the extent to which the 2011 enactment of G.S. 14-51.2 and G.S. 14-51.3, creating statutory rights to self-defense, supplemented or superseded North Carolina common law concerning self-defense and defense of another.  Prior to the 2011 statutory enactments, the North Carolina Supreme Court in State v. Richardson, 341 N.C. 585, 592-94 (1995) held that “it is not necessary to change the self-defense instruction to read necessary ‘to shoot or use deadly force’ in order to properly instruct a jury on the elements of self-defense.”  The defendant argued that, notwithstanding Richardson, it was error to use the “to kill” language because G.S. 14-51.3 does not require a person to believe it is necessary to kill his or her assailant in order to save himself or herself from death or bodily harm and instead authorizes the use of deadly force if a person is “in any place he or she has the lawful right to be” and “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself . . . .”  Finding itself bound by Richardson, the court determined that the trial court did not err in its instruction to the jury on self-defense.

With regard to the trial court’s calculation of the defendant’s prior-record-level points for sentencing purposes, a calculation based upon certified copies from the Clerk of Superior Court of the defendant’s criminal records, the court found that the trial court did not err by adding one prior-record-level point for a misdemeanor assault with a deadly weapon conviction that resulted in a PJC and did not err in adding one prior-record-level point for misdemeanor breaking and entering and injury to real property offenses that were consolidated and to which the defendant pleaded guilty.  Even if the trial court erred in adding two prior-record-level points instead of one point by treating another breaking and entering conviction as a felony rather than as a misdemeanor, the assumed error was harmless because it did not change the defendant’s prior-record level.

Defendants Molly Martens Corbett (“Molly”) and Thomas Michael Martens (“Tom”), daughter and father, were convicted of second degree murder in the death of Molly’s husband, Jason Corbett (“Jason”). Evidence at trial established that Tom attempted to stop Jason from choking Molly by hitting Jason with an aluminum baseball bat. Molly also hit Jason with a brick paver. Jason’s skull was fractured from multiple blows and he died at the scene. Jason’s children from a previous marriage, Jack and Sarah Corbett, ages 11 and 8, were at home and sleeping at the time of the altercation. Jack and Sarah’s mother had died unexpectedly when they were very young, and they considered Molly to be their mother.

(1) Defendants argued that the trial court abused its discretion by denying their Motion for Appropriate Relief (MAR), as well as their request for an evidentiary hearing, because competent evidence demonstrated that certain jurors “committed gross and pervasive misconduct in their private discussions of the case”; jurors engaged in “private discussions” amongst themselves prior to deliberations; and several jurors’ statements during post-trial media interviews showed that they improperly considered and formed opinions about Molly’s mental health. The court rejected this argument, characterizing the defendants’ allegations as being, at best, general, speculative, and conclusory. Furthermore, the court concluded that even if the trial court were to hold an evidentiary hearing, which it was not required to do, precedent prohibiting verdict impeachment would bar the defendants from presenting any admissible evidence to prove the truth of their allegations.

(2) Defendants asserted that the State failed to present substantial evidence to rebut or contradict Molly’s exculpatory handwritten statement, which the State introduced, establishing that Molly and Tom acted in lawful self-defense and defense of others. The Court of Appeals disagreed.

The State was required to present substantial evidence sufficient to convince a rational trier of fact that the defendants did not act in self-defense. The appellate court determined that the case was not entirely predicated on Molly’s statement that she and Tom acted in self-defense and defense of each other. Rather, the State presented substantial circumstantial evidence from which a rational juror could reach a contrary conclusion, including that: (1) Jason suffered at least twelve blows to the head; (2) Tom had no visible injuries and Molly had only a “light redness” on her neck; (3) Jason was unarmed when the altercation occurred; (4) Jason’s children remained asleep throughout the entire altercation; (5) EMS, paramedics, and law enforcement responders observed that some of the blood on Jason’s body had dried, and that Jason’s body felt cool; (6) Tom told a coworker that he hated Jason; and (7) Jason had a life insurance policy, of which Molly was the named beneficiary.

(3) The Court of Appeals concluded, over a dissent, that certain evidentiary errors were so prejudicial as to inhibit the defendants’ ability to present a full and meaningful defense.

(a) The Court of Appeals held that the trial court erroneously concluded that statements Jack and Sarah Corbett made to workers at a children’s advocacy center were inadmissible under the hearsay exception for medical diagnosis or treatment. At the time of trial, Jack and Sarah had been taken to Ireland to live with their aunt and uncle. The appellate court determined that their statements at the advocacy center satisfied the two-part test for admissibility established in State v. Hinnant, 351 N.C. 277 (2000):  (1) the children made the statements to obtain medical diagnosis or treatment; and (2) the statements were reasonably pertinent to medical diagnosis or treatment. The court explained that the child-friendly atmosphere and the separation of the examination rooms did not indicate that the children’s statements during the interviews were not intended for medical purposes. The children were informed before their interviews that they would be receiving medical interviews together with physical examinations as part of their full evaluations at the facility. The interviewers asked non-leading, open-ended questions, instructed the children that they should not “guess at anything” and emphasized the overall significance of the child medical evaluations that they would be receiving. In addition, the court concluded that the children’s statements were reasonably pertinent to medical treatment or diagnosis. Following their forensic medical interviews, Sarah and Jack were examined by a pediatrician who diagnosed both children as “victim[s] of child abuse based on exposure to domestic violence” and recommended that they “receive mental health services” as treatment.

Moreover, the court concluded that even if the children’s forensic medical interview statements were inadmissible under the medical diagnosis or treatment exception to the rule against hearsay, they (along with statements the children made to DSS workers) were admissible under the residual hearsay exception.

(b) Stuart James, the State’s expert witness in bloodstain pattern analysis, testified at trial about untested blood spatter on the underside hem of Tom’s boxer shorts and the bottom of Molly’s pajama pants. The defendants argued that this testimony was not the product of reliable principles and methods applied reliably to the facts of this case. The Court of Appeals agreed.

While James was “unquestionably qualified to provide expert testimony on the subject” of blood spatter, he did not follow the reliability protocol establish in a treatise he coauthored on the subject. First, these particular stains were not tested for the presence of blood. Second, though James said it was the “best practice” for an analyst to view a photograph of the person wearing the blood-spattered clothes, he never viewed a photograph of Tom “wearing just the boxer shorts.” James further testified that the State provided him with just one photograph of Molly wearing the pajama pants, and that it was not readily apparent from that photograph how the pants actually fit Molly on the night of the incident. The court found James’s failure to follow the reliability standards and protocol prescribed in his own treatise as inherently suspect. It concluded that James’s testimony was based upon insufficient facts and data, and, accordingly, could not have been the product of reliable principles and methods applied reliably to the facts of the case.

The court determined that James's testimony “had the powerful effect of bolstering the State’s claim that Jason was struck after and while he was down and defenseless.” But, given the flawed methodology, the  testimony could only serve to unduly influence the jury to reach a conclusion that it was fully capable of reaching on its own.

(c) The defendants argued that the trial court erred in striking Tom’s testimony that, during the altercation, he “hear[d] Molly scream[,] ‘Don’t hurt my dad.’ ” The Court of Appeals agreed. The court reasoned that Molly’s statement was admissible for the non-hearsay purpose of illustrating Tom’s then-existing state of mind. This was “a particularly relevant issue” in light of the defendants’ claims of self-defense and defense of another.

(d) Tom argued that the trial court committed reversible error by instructing the jury that he would not be entitled to the benefit of self-defense or defense of a family member if the jury found that he were the initial aggressor in the altercation with Jason. The Court of Appeals agreed.

First, the appellate court stated that the trial court could not have based its ruling on Tom’s decision to arm himself with the baseball bat before joining the altercation. The mere fact that a defendant was armed is not evidence that he was the aggressor if he did not unlawfully use his weapon.

Moreover, the court deemed it significant that Jason was the first to employ deadly force. Tom testified that from the moment he opened the bedroom door, “Jason had his hands around Molly’s neck,” and he said he was going to kill her. Jason subsequently put Molly in a “very tight chokehold” and Tom noticed that Molly “was no longer wiggling. She was just weight, being dragged back into the hallway.”

Because Tom did not aggressively and willingly enter into the fight without legal excuse or provocation, the Court of Appeals determined that the trial court erred by instructing the jury on the aggressor doctrine. The error, the court reasoned, very likely prejudiced Molly as well as Tom, since the jury was instructed that it could find her guilty under an acting-in-concert theory.

One judge concurred in part and dissented in part. The judge concurred that the trial court did not err by denying defendants’ request for an evidentiary hearing on their MAR and the MAR itself or by denying defendants’ motions to dismiss for insufficient evidence. The judge dissented from the remainder of the majority opinion leading to its conclusion that the defendants are entitled to a new trial.

In this assault with a deadly weapon inflicting serious injury case, the trial court properly instructed the jury regarding self-defense.  The defendant was in a physical altercation with another woman, during which she cut the other woman a number of times with a knife.  “Recognizing that a defendant may only use deadly force to protect herself from great bodily injury or death,” the North Carolina Pattern Jury Instructions provide two different sets of jury instructions for self-defense: NCPI-Criminal 308.40 describes when the use of non-deadly force is justified; NCPI-Criminal 308.45 describes when the use of deadly force is justified.  The trial court instructed the jury pursuant to NCPI-Criminal 308.40 and the defendant argued that this was error because the jury could have determined that the knife was a deadly weapon, entitling her to an instruction pursuant to NCPI-Criminal 308.45.  The Court of Appeals disagreed.  Viewing the evidence in the light most favorable to the defendant, the court concluded that the evidence was not sufficient to support a finding that the defendant “reasonably apprehended death or great bodily harm when she struck the defendant with the knife,” and, thus, the trial court did not err by failing to instruct the jury pursuant to NCPI-Criminal 308.45.

State v. Copley, ___ N.C. App. ___, 828 S.E.2d 35 (May. 7, 2019) rev’d on other grounds, ___ N.C. ___, ___ S.E.2d ___ (Apr 3 2020)

In this first-degree murder case involving a shooting outside of the defendant’s home where the Court of Appeals opinion was reversed on other grounds, the court noted an error in the trial court’s jury instructions with respect to defense of habitation. Noting a problem in the current pattern jury instruction on defense of habitation, the court stated:

In the instant case, the trial court failed to provide a definition for “home” in the jury instructions. While not argued, a discrepancy exists between N.C.P.I. Crim. 308.80 and the controlling N.C. Gen. Stat. § 14-51.2. The jury could have potentially believed that Defendant could only have exercised his right of self-defense and to defend his habitation only if [the victim] was attempting to enter the physical confines of Defendant’s house, and not the curtilage or other areas.

            The absence of a definition for “home” or “curtilage” in the pattern instruction, and the reference to State v. Blue and the now repealed statute, is not consistent with the current statute. The pattern instruction should be reviewed and updated to reflect the formal and expanded definition of “home” as is now required by N.C. Gen. Stat. § 14-51.2.

[Note: I will bring this issue to the attention of the Pattern Jury Committee]

In this assault case, the trial court committed prejudicial error by failing to instruct the jury on self-defense. Aubrey Chapman and his friend Alan McGill attended a party. During the party, the defendant punched McGill in the face. Chapman saw the confrontation and hit the defendant. Security escorted the defendant out of the venue. Chapman followed, as did others behind him. The evidence conflicts as to what occurred next. Chapman claimed that the defendant charged him with a box cutter. Reggie Penny, a security guard who was injured in the incident, said that people rushed the defendant and started an altercation. Sherrel Outlaw said that while the defendant had his hands up, a group of guys walked towards him. When the defendant took a couple of steps back, someone hit him in the face and a group of guys jumped on him. Outlaw did not see the defendant with a weapon. The trial court denied the defendant’s request for a self-defense instruction. The defendant was convicted and appealed. The court found that the trial court erred by failing to instruct the jury on self-defense, finding that the defendant presented competent evidence that he reasonably believed that deadly force was necessary to prevent imminent death or great bodily harm. Citing Penny and Outlaw’s testimony, it held that the evidence is sufficient to support the defendant’s argument that the assault on him gave rise to his reasonable apprehension of death or great bodily harm. Although the State correctly asserts that some of the evidence shows that the defendant was the initial aggressor, conflicting evidence indicates that he was not brandishing a weapon and was attacked without provocation. The court noted that it must view the evidence in the light most favorable to the defendant. The court went on to conclude that the trial court’s error was prejudicial.

In a case where the defendant was found guilty of second-degree murder, assault with a deadly weapon, and discharging a firearm into an occupied dwelling, the trial court committed prejudicial error by failing to include no duty to retreat and stand your ground provisions in the jury instruction on self-defense. Viewed in the light most favorable to the defendant, the defendant was aware of the victim’s violent and dangerous propensities on the night of the shooting. The defendant’s testimony established, among other things, that the victim had achieved high-ranking gang membership by killing a rival gang member, that the defendant saw the victim rob others multiple times, and that he knew the victim always carried a gun. The defendant’s knowledge of the victim’s violent propensities, being armed, and prior acts support a finding that the defendant reasonably believed it was necessary to use deadly force to save himself from death or great bodily harm. Prior to the shooting, the victim stood outside of the defendant’s apartment with two others and waited to confront the defendant about an alleged prior incident. The defendant also testified that he borrowed a gun for protection. When the victim noticed the defendant walking towards his apartment, the victim told the defendant, “this is war, empty your pocket”, continued to advance after the defendant fired two warning shots, and lunged at the defendant while reaching behind his back towards his waistband. In the light most favorable to the defendant, a jury could conclude that the defendant actually and reasonably believed that the victim was about to shoot him and it was necessary to use deadly force to protect himself. The fact that the defendant armed himself does not make the defendant the initial aggressor. Although law enforcement officers did not find a gun when they searched the victim’s body, evidence presented at trial suggested that he may have been armed. Thus, a jury could infer that the defendant reasonably believed the victim was armed at the time of the altercation.

Although the trial court properly gave a self-defense instruction in this shooting into an occupied vehicle and injury to personal property case, it erred by failing to give a no duty to retreat instruction. Viewed in the light most favorable to the defendant, the evidence showed that the defendant was driving at night in wet conditions with a potential for ice, along a meandering two-lane highway with few street lights. The victim Parker came up behind the defendant and persistently tailgated the defendant’s vehicle with bright lights, while other traffic was traveling in front of the defendant. Although Parker had an opportunity to pass the defendant, he pulled up alongside the defendant. When the defendant slowed down, Parker also slowed and “paced” him, rather than passing, and veered closer towards the defendant’s vehicle. Parker moved his vehicle into the defendant’s lane and was driving so close to the defendant’s vehicle, that the defendant could have reached out from his driver’s side window and touched Parker’s tire. The passenger-side tires of the defendant’s vehicle were forced off the road onto the muddy shoulder. Fearing that he would lose control of his vehicle and suffer injury, the defendant shot at Parker’s tire to disable his vehicle. The trial court gave a self-defense instruction without language about duty or lack of duty to retreat. The defendant was found guilty and appealed.

            The court first held that the trial court properly instructed on self-defense, even though there was no intent to kill in this case. It noted that although the state Supreme Court has held that self-defense is not available where the defendant claims that the victim’s death was an accident, those cases were distinguishable and not controlling where, here, it is undisputed that the defendant intended to “strike the blow”—to shoot Parker’s tire. The court explained that the defendant was not required to show that he intended to kill Parker; he only needed to show the intent to strike the blow by shooting at Parker’s vehicle.

            Next, the court concluded that the trial court committed prejudicial error by denying the defendant’s request for an instruction on no duty to retreat. The court reasoned: “Defendant was present in a location he lawfully had a right to be: driving inside his vehicle upon a public highway. Defendant was under no legal obligation to stop, pull off the road, veer from his lane of travel, or to engage his brakes and risk endangering himself.”

In this voluntary manslaughter case, the trial court committed prejudicial error by denying the defendant’s request for a jury instruction on defense of habitation. The trial court denied the defendant’s requested instruction, finding no evidence that the victim was “trying to break in.” According to the trial court, the defendant’s evidence demonstrated that he was attempting to prevent injury to himself, not trying to prevent someone coming into his curtilage or home. The trial court’s ruling was erroneous. As explained in the “Note Well” in the jury instruction, the use of force is justified when the defendant is acting to prevent a forcible entry into the defendant’s home or to terminate an intruder’s unlawful entry into the home, a term that includes the curtilage. Here, the victim was standing within the curtilage of the defendant’s property when the defendant fired the fatal shot. The court rejected the State’s argument that the defendant was not entitled to the instruction because the victim never came onto the defendant’s porch and never tried to open the door to the defendant’s trailer, finding that it “defies the plain language of the statute.” Despite numerous requests to leave and multiple orders from law enforcement, the victim continued to return to the curtilage of the defendant’s property while repeatedly threatening bodily harm. Thus, the trial court erred by denying the defendant’s request for the jury instruction, and this error required reversal.

Where there was evidence that the defendant was the aggressor, the trial court did not err by instructing the jury on the aggressor doctrine as it relates to self-defense. The court noted that based on the defendant’s own testimony regarding the incident, it was possible for the jury to infer that the defendant was the initial aggressor. Additionally, the victim was shot twice in the back, indicating either that the defendant continued to be the aggressor or shot the victim in the back during what he contended was self-defense. As a result, the trial court properly allowed the jury to determine whether or not the defendant was the aggressor.

 

State v. Crump, ___ N.C. App. ___, 815 S.E.2d 415 (Apr. 17, 2018) rev’d on other grounds, ___ N.C. ___, ___ S.E.2d ___ (Dec 18 2020)

No prejudicial error occurred with respect to the trial court’s self-defense instructions. With respect to an assault with a deadly weapon with intent to kill charge, the defendant raised the statutory justifications of protection of his motor vehicle and self-defense. The trial court found that the defendant’s evidence did not show that his belief that entry into his motor vehicle was imminent and gave the pattern jury instruction N.C.P.I.-Crim 308.45 (“All assaults involving deadly force”) and not N.C.P.I.-Crim. 308.80 (“defense of motor vehicle”), as requested by defendant. The trial court instructed the jury pursuant to N.C.P.I.-Crim 308.45, incorporating statutory language indicating that self-defense is not available to one who was attempting to commit, was committing, was escaping from the commission of a felony. The State requested that the trial court also define for the jury the felonies that would disqualify the defendant’s claim of self-defense. The trial court agreed and instructed the jury, using the language of G.S. 14-51.4(1), that self-defense was not available to one who engaged in specified felonious conduct. On appeal, the defendant first argued that G.S. 14-51.4(1) requires both a temporal and causal nexus between the disqualifying felony and the circumstances which gave rise to the perceived need to use defensive force. The court agreed that the statute contains a temporal requirement but disagreed that it contains a causal nexus requirement.

Second, the defendant argued that the inclusion of assault with a deadly weapon with intent to kill as a qualifying felony was circular and therefore erroneous. The court agreed, but found the error was not prejudicial.

In a case where the defendant was charged with attempted murder and assault, the trial court did not err by instructing the jury that the defendant could not receive the benefit of self-defense if he was the aggressor. The incident in question involved a shooting; the defendant argued that he shot the victim in self-defense. The two sides presented differing evidence as to what occurred. During the charge conference, defense counsel objected to the inclusion of the aggressor doctrine in the pattern jury instruction for self-defense. The defendant argued that because the victim had approached his car before the defendant said anything, the victim initiated the fight. The State contended that because its evidence showed only that the victim told the defendant to step out of his vehicle, the question should go to the jury as to who was the aggressor. The trial court overruled the defendant’s objection and gave the aggressor instruction. The jury found the defendant guilty on the assault charge. The court noted that the law does not require that a defendant instigate a fight to be considered an aggressor. Rather, even if his opponent starts a fight, a defendant who provokes, engages in, or continues an argument which leads to serious injury or death may be found to be the aggressor. Where there is conflicting evidence as to which party was the aggressor, the jury should make the determination. Here, the State’s evidence tended to show that the defendant was the aggressor. The victim testified that he told the defendant to step out of his car so they could talk, he did not threaten the defendant, touch the defendant’s car or approach the defendant. And the victim was unarmed. After speaking with the defendant, the victim testified that he stepped into the yard to allow the defendant to exit his car, only to be shot by the defendant. Although the defendant’s testimony materially differed from the State’s evidence, the issue was one for the jury.

In this murder case, the court rejected the defendant’s argument that the trial court should have granted the defendant’s motion to dismiss because the State failed to present substantial evidence that the defendant did not act in self-defense. Ample evidence contradicted the defendant’s claim of self-defense, including that the victim had medical issues and was so frail that the VA had approved a plan to equip the victim and the defendant’s home with a wheelchair lift, ramps, and a bathroom modification; the defendant was physically active; after the victim was twice wounded by gunshots, the defendant stabbed him 12 times; and the victim suffered minimal injuries compared to the nature and severity of the victim’s injuries.

In this felony-murder case where the underlying felony was discharging a firearm into an occupied vehicle, the trial court did not err by declining to instruct on self-defense. The court rejected the defendant’s argument that a reasonable jury could have found that the shooting constituted perfect self-defense. Viewing the facts in the light most favorable to the defendant, the first three elements of self-defense were present: the defendant testified that he believed two individuals were about to shoot him or another person; a reasonable person would have so concluded; and until he fired, the defendant had not attacked or threatened the victim in any way. However, the defendant’s own testimony indicated that he did not shoot to kill. “Such an intent is required for a trial court to instruct a jury on perfect self-defense.”

State v. Clonts, ___ N.C. App. ____, 802 S.E.2d 531 (June 20, 2017) aff'd on other grounds, ___ N.C. ___, 813 S.E.2d 796 (Jun 8 2018)

The trial court did not err by failing to instruct the jury on imperfect self-defense and imperfect defense of others where the defendant did not request that the trial court give any instruction on imperfect self-defense or imperfect defense of others. In fact, when the State indicated that it believed that these defenses were not legally available to the defendant, defense counsel agreed with the State. The defendant cannot show prejudice from invited error. 

In this DWI case, the trial court erred by refusing to instruct the jury on the defense of necessity. The defendant was arrested for DWI while driving a golf cart. The evidence showed that the defendant and his wife used the golf cart on paths connecting their home to a local bar, that he drove the golf cart to the bar on those paths on the evening in question, and that he planned to return the same way. However when a fight broke out at the bar, the defendant and his wife fled on the golf cart, driving on the roadway. The defendant was convicted and he appealed. The court began its analysis by noting that the affirmative defense of necessity is available to DWI defendants and involves these elements: reasonable action, taken to protect life, limb, or health of a person, and no other acceptable choices available. The trial court erred by applying an additional element, requiring that the defendant’s action was motivated by fear. The court went on to determine that an objective standard of reasonableness applies to necessity, as compared to duress which appears to involve a subjective standard. The evidence was sufficient to satisfy the first two elements of the defense: reasonable action taken to protect life, limb, or the health of a person. Here, the bar attracted a rough clientele, including “the biker crowd.” It was not unusual for fights to break out there, but the bar had no obvious security. On the night in question, the bar atmosphere became “intense” and “mean” such that the two decided to leave. The defendant then argued with several men in the parking lot, which escalated to shouting and cursing. The main person with whom the defendant was arguing was described as the “baddest mother_cker in the bar.” The defendant punched the man, knocking him to the ground. The man was angry and drew a handgun, threatening the defendant. Neither the defendant nor his wife were armed. The scene turned “chaotic,” with a woman telling the defendant’s wife that the man was “crazy” and that they needed to “get out of [t]here.” The defendant’s wife was concerned that the man might shoot the defendant, her or someone else. When the defendant saw the gun, he screamed at his wife to leave. The defendant’s wife said she had no doubt that if they had not fled in the golf cart they would have been hurt or killed by the man with the gun. On these facts the court held:

[S]ubstantial evidence was presented that could have supported a jury determination that a man drawing a previously concealed handgun, immediately after having been knocked to the ground by Defendant, presented an immediate threat of death or serious bodily injury to Defendant, [his wife], or a bystander, and that attempting to escape from that danger by driving the golf cart for a brief period on the highway was a reasonable action taken to protect life, limb, or health.

The court also found that there was sufficient evidence as to the third element of the defense: no other acceptable choices available. With respect to whether the perceived danger had abated by the time the defendant encountered the officer, the court noted that the defendant had pulled off the highway approximately 2/10 of a mile from the bar and the defendant’s wife said that she saw the officer within minutes of the altercation. The court concluded: “On the facts of this case, including . . . that there was a man with a firearm who had threatened to shoot Defendant, and who would likely have access to a vehicle, we hold two-tenths of a mile was not, as a matter of law, an unreasonable distance to drive before pulling off the highway.” The court further clarified that the defenses of necessity and duress are separate and distinct. And it held that the evidence also supported a jury instruction on duress.

 

The trial court did not err by denying the defendant’s request for a special instruction on sequestration. In closing argument, the prosecutor argued, in part: “[Defendant is] cherry-picking the best parts of everybody’s story after … he’s had the entire trial to listen to what everybody else would say. You’ll notice that our witnesses didn’t sit in here while everybody else was testifying.” After the jury was instructed and left the courtroom to begin deliberations, the defendant asked the trial court to instruct the jury as follows: “In this case, all witnesses allowed by law were sequestered at the request of the State. These witnesses could not be present in court except to testify until they were released from their subpoenas, or to discuss the matter with other witnesses or observers in court. By law, the defendant and lead investigator for the State cannot be sequestered.” Given the trial court’s conclusion that the requested instruction did not relate to a dispositive issue in the case, it did not abuse its discretion in denying the defendant’s request.

The trial court’s jury instruction regarding the duty to reach a verdict did not coerce a guilty verdict. The relevant pattern instruction (N.C.P.I.--Crim. 101.35), based on G.S. 15A-1235(a), reads: "All twelve of you must agree to your verdict. You cannot reach a verdict by majority vote. When you have agreed upon a unanimous verdict(s) (as to each charge) your foreperson should so indicate on the verdict form(s)." Here, the trial court instructed: "You must be unanimous in your decision. In other words, all twelve jurors must agree. When you have agreed upon a unanimous verdict, your foreperson may so indicate on the verdict form that will be provided to you." The defendant argued that telling the jurors that they had to agree, rather than that they had to agree to a verdict, caused the jurors to erroneously construe the charge to be a mandatory instruction that a verdict must be reached. Although it concluded that the “pattern instruction more carefully instructs the jury,” the court found that the instruction in this case, when viewed in context, was not coercive of the jury's verdict.

In an indecent liberties case where the defendant alleged that she did not know the victim’s age, the trial court did not err by declining the defendant’s proposed instruction on willfulness which would have instructed that willfully means something more than an intention to commit the offense and implies committing the offense purposefully and designed in violation of the law. Instead, the trial court instructed that willfully meant that the act was done purposefully and without justification or excuse. Although not given verbatim, the defendant’s instruction was given in substance.

In a triple murder case in which the defendant asserted an insanity defense, the trial court did not err by failing to give the defendant’s requested jury instruction on the commitment process and instead instructing the jury on the issue pursuant to N.C.P.J.I—Crim. 304.10. The pattern instruction adequately charged the jury regarding procedures upon acquittal on the ground of insanity. 

In this Duplin County case, the defendant was convicted by a jury of financial card fraud, obtaining property by false pretenses, identity theft, and habitual felon. She appealed, arguing that her motion to dismiss for insufficiency of the evidence should have been granted as to the identity theft and that she received ineffective assistance of counsel. The Court of Appeals unanimously affirmed.

(1) The evidence showed that the defendant used the credit cards of two other people to make purchases for herself, representing herself as the owner of the cards. The defendant eventually admitted to police that she used the credit cards and provided a full written confession. At the close of evidence, the defendant asked the trial court to dismiss two (of six) counts of identity theft regarding Victim #1 based on a lack of proof that the defendant acted without that victim’s permission. On appeal, the defendant challenged all six identity theft convictions, contending that there was no evidence she meant to represent herself as the two victims. This was a different argument than the one made to the trial court and was not preserved under State v. Walker, 252 N.C. App. 409 (2017) (holding that, without a “global” motion to dismiss, sufficiency arguments not raised in the trial court are waived on appeal).

Defendant failed to preserve any argument as to the four charges of identity theft pertaining to [Victim #2]. Likewise, the defendant failed to preserve the specific argument—that there was insufficient evidence that Defendant intended to represent that she was [Victim #1]. We thus decline to reach the merits of her argument.

The court declined to invoke its discretionary authority under Rule 2 of the Appellate Rules of Procedure to consider the unpreserved arguments.

(2) The defendant argued that she received ineffective assistance of counsel based on her trial lawyer’s failure to preserve the above issues, arguing that the motion to dismiss for insufficiency would have been granted if had her trial lawyer made the argument. While ineffective assistance claims should normally be litigated through a motion for appropriate relief, here, the “cold record” was sufficient to allow appellate review of the claim. The defendant’s argument that the State failed to present evidence that she represented herself as the victims was meritless under State v. Jones, 367 N.C. 299, 304 (2014) (rejecting interpretation of identity theft statute to require use of the victim’s name, which would cause “absurd” results). The defendant’s use of the victims’ credit card numbers was sufficient “identifying information” under the statute and it was not error for defense counsel to fail to make this argument. The defendant did not therefore receive ineffective assistance of counsel.

(3) The trial court instructed the jury on false or conflicting statements of the defendant under N.C. P. I.—Crim. 105.21. The defendant originally told police that an ex-boyfriend was responsible for the fraud before later admitting to the conduct. On appeal, she argued that this instruction to the jury prejudiced her trial by impugning her character. The court disagreed.

[This] instruction is proper not only where defendant’s own statements contradict each other but also where the defendant’s statements flatly contradict relevant evidence. The instruction is in appropriate if it fails to make clear to the jury that the falsehood does not create a presumption of guilt.

The statements of the defendant to law enforcement were contradictory and conflicting, “tending to reflect the mental processes of a person possessed of a guilty conscience seeking to divert suspicion and to exculpate [her]self.” The instruction was given in accordance with the considerable warnings in the commentary to that pattern instruction, was supported by the evidence, and was therefore proper under these facts.  

State v. Grainger, 367 N.C. 696 (Dec. 19, 2014)

In this murder case, the trial court did not err by denying the defendant’s request for a jury instruction on accessory before the fact. Because the defendant was convicted of first-degree murder under theories of both premeditation and deliberation and the felony murder rule and the defendant’s conviction for first-degree murder under the theory of felony murder is supported by the evidence (including the defendant’s own statements to the police and thus not solely based on the uncorroborated testimony of the principal), the court of appeals erred by concluding that a new trial was required.

In a case in which the victim died after consuming drugs provided by the defendant and the defendant was convicted of involuntary manslaughter, the trial court did not err by instructing the jury on second-degree murder and the lesser offense of involuntary manslaughter. The defendant objected to submission of the lesser offense. The evidence showed that the defendant sold the victim methadone and that the defendant had nearly died the month before from a methadone overdose. There was no evidence that the defendant intended to kill the victim by selling him the methadone. This evidence would support a finding by the jury of reckless conduct under either second-degree murder or involuntary manslaughter. 

State v. Hobbs, ___ N.C. App. ___, 817 S.E.2d 779 (July 17, 2018) rev’d on other grounds, ___ N.C. ___, ___ S.E.2d ___ (May 1 2020)

In this murder and armed robbery case, the trial court did not abuse its discretion by denying defense counsel’s proffered jury instructions. The additional jury instructions requested by the defense all relate to the defendant’s mental and/or emotional condition at the time of the murder and whether the defendant had the mental capacity to consider the consequences of his actions. However, the substance of the requested instructions was included in the instructions given to the jury. Additionally, the trial court gave the defendant’s proposed instruction on lack of mental capacity, informing the jury that if as a result of post-traumatic stress disorder, persistent depressive disorder, or other mental infirmity, the defendant did not have the specific intent to kill, formed after premeditation and deliberation, he would not be guilty of first-degree murder. The jury was clearly instructed concerning their ability to consider the defendant’s mental illnesses and condition as part of their deliberations. Finally, because the defendant was found guilty of first-degree murder based both on premeditation and deliberation and felony murder, even if the trial court erred by denying the defendant’s requested instructions, no prejudice would have occurred.

The trial court did not err by instructing the jury that it could consider wounds inflicted after the victim was felled in determining whether the defendant acted with premeditation and deliberation. The trial court instructed the jury:

Neither premeditation nor deliberation are usually susceptible of direct proof. They may be proved by circumstances by which they may be inferred such as lack of provocation by the victim; conduct of the defendant before, during, and after the attempted killing; threats and declarations of the defendant; use of grossly excessive force; or inflictions of wounds after the victim is fallen.

The defendant argued this instruction was improper because there was no evidence that he inflicted wounds on the victim after the victim was felled. Following State v. Leach, 340 N.C. 236, 242 (1995)(trial court did not err by giving the instruction, “even in the absence of evidence to support each of the circumstances listed” because the instruction “informs a jury that the circumstances given are only illustrative”), the court found no error.

State v. Hobbs [Duplicated], ___ N.C. App. ___, 817 S.E.2d 779 (July 17, 2018) rev’d on other grounds, ___ N.C. ___, ___ S.E.2d ___ (May 1 2020)

In this murder and armed robbery case, the trial court did not abuse its discretion by denying defense counsel’s proffered jury instructions. The additional jury instructions requested by the defense all relate to the defendant’s mental and/or emotional condition at the time of the murder and whether the defendant had the mental capacity to consider the consequences of his actions. However, the substance of the requested instructions was included in the instructions given to the jury. Additionally, the trial court gave the defendant’s proposed instruction on lack of mental capacity, informing the jury that if as a result of post-traumatic stress disorder, persistent depressive disorder, or other mental infirmity, the defendant did not have the specific intent to kill, formed after premeditation and deliberation, he would not be guilty of first-degree murder. The jury was clearly instructed concerning their ability to consider the defendant’s mental illnesses and condition as part of their deliberations. Finally, because the defendant was found guilty of first-degree murder based both on premeditation and deliberation and felony murder, even if the trial court erred by denying the defendant’s requested instructions, no prejudice would have occurred.

State v. Juarez, 369 N.C. 351 (Dec. 21, 2016)

Reversing the Court of Appeals in this first-degree felony murder case, the court held that the trial court did not commit reversible error by failing to instruct the jury on the lesser included offenses of second-degree murder and voluntary manslaughter. The underlying felony for first-degree felony murder was discharging a firearm into an occupied vehicle in operation. The trial court denied the defendant’s request for instructions on second-degree murder and voluntary manslaughter. The Court of Appeals held that it was error not to instruct on the lessers because the evidence was conflicting as to whether the defendant acted in self-defense. The court found this reasoning incorrect, noting that self-defense is not a defense to felony murder. Perfect self-defense may be a defense to the underlying felony, which would defeat the felony murder charge. Imperfect self-defense however is not available as a defense to the underlying felony use to support a felony murder charge because allowing such a defense when the defendant is in some manner at fault “would defeat the purpose of the felony murder rule.” In order to be entitled to instructions on the lesser included offenses, “the conflicting evidence must relate to whether defendant committed the crime charged, not whether defendant was legally justified in committing the crime.” Here, there is no conflict regarding whether the defendant committed the underlying felony. The defendant does not dispute that he committed this crime; rather he claims only that his conduct was justified because he was acting in self-defense. 

In a case where the defendant was convicted of first-degree murder, the trial court did not err by failing to submit an instruction on second-degree murder and/or voluntary manslaughter. The defendant argued that the evidence negated premeditation and deliberation. The court disagreed, finding that the State offered substantial evidence of those elements. Specifically, the defendant had a tumultuous relationship with the victim, with ill-will existing between the two. The victim planned to call off their wedding and sent the defendant a text message telling him that he needed to move out of the home and that she would be changing the locks. Moreover, she told the defendant, who had financial troubles, that she would continue to seek child support payments. Her body was found the next day. After the killing, the defendant gave inconsistent statements about events of the day. He told the victim’s friend that he left early for work and that the victim was not at the home, and said that she had a doctor’s appointment. However, the defendant had the victim’s vehicle and the keys to his own car with him, leaving her with no vehicle. When the friend asked the defendant whether the victim’s vehicle was at the home when he went to work, the defendant never responded. Moreover, there was no evidence that the victim provoked the defendant. This constituted substantial evidence of premeditation and deliberation. The only evidence claimed by the defendant to negate premeditation and deliberation is the text message from the victim telling him to move out and signs of struggle in the home. From this evidence, the defendant claims that premeditation and deliberation were negated because the jury could have concluded that an argument aroused a sudden passion in him. The court rejected the notion that this evidence negated premeditation and deliberation. Likewise the court determined that the trial court did not err by failing to instruct the jury on voluntary manslaughter, again noting the lack of evidence of heat of passion.

(1) In this case in which the defendant was convicted of felony murder with the underlying felony being child abuse, the trial court did not err by denying the defendant’s request to instruct the jury on premeditated and deliberate murder and all lesser included offenses. There was no evidence that the defendant possessed a specific intent to kill formed after premeditation and deliberation where the evidence showed that the defendant “snapped” and “lost control.” (2) Second-degree murder is not a lesser included offense of first-degree felony murder.

In this felony-murder case the trial court did not err by denying the defendant’s request to instruct on second-degree murder. The underlying felony was armed robbery and the defendant’s own testimony established all the elements of that offense.

Where no evidence negated the State’s proof of first-degree murder, the trial court did not err by denying the defendant’s request for an instruction on second-degree murder.

In a case in which the victim died after consuming drugs provided by the defendant and the defendant was convicted of involuntary manslaughter, the trial court did not err by instructing the jury on second-degree murder and the lesser offense of involuntary manslaughter. The defendant objected to submission of the lesser offense. The evidence showed that the defendant sold the victim methadone and that the defendant had nearly died the month before from a methadone overdose. There was no evidence that the defendant intended to kill the victim by selling him the methadone. This evidence would support a finding by the jury of reckless conduct under either second-degree murder or involuntary manslaughter.

In a case in which the defendant was charged with first-degree murder, the trial court did not err by denying the defendant’s request for a second-degree murder charge where there was no evidence to negate the State’s proof of every element of first-degree murder; the defendant’s defense was simply an assertion that he did not shoot the victim.

State v. Miles, 222 N.C. App. 593 (Aug. 21, 2012) aff’d per curiam, 366 N.C. 503 (Apr 12 2013)

In a case in which the defendant was convicted of first-degree murder, the trial court did not err by failing to instruct the jury on second-degree murder. The court found that the record supported the inference that the defendant murdered the victim after premeditation and deliberation. The defendant harassed the victim over the telephone at least 94 times and visited the victim’s home at least twice; the defendant threatened the victim’s life by voicemail on the day of the murder; the defendant stated his intention to murder the victim to a confidant; the defendant and the victim had a heated relationship and argued over money; the defendant anticipated a confrontation whereby he would use deadly force; the defendant crafted a false alibi; the defendant fled the scene leaving the victim to die; and the defendant sold his wife’s R.V., which the jury could infer was the vehicle the defendant drove on the night of the murder, less than two months after the crime. “Most notably,” the victim died as a result of a gunshot wound to the center back of the head, discharged at close range, indicating that the defendant not only inflicted a brutal, fatal wound with a deadly weapon, but that even if the defendant and the victim were fighting at the time, the victim’s back was to defendant and the victim was fleeing or turning away at the time of his death. The court rejected the defendant’s argument that certain facts suggested that a fight precipitated the murder and thus warranted an instruction on the lesser offense. It noted that even evidence of an argument, “without more, is insufficient to show that defendant’s anger was strong enough to disturb his ability to reason and hinder his ability to premeditate and deliberate the killing.”  

In a case in which the defendant was convicted of first-degree murder, the trial court did not err by failing to instruct the jury on second-degree murder. The defendant conceded that the evidence warranted an instruction on first-degree murder. However, he argued that because the evidence failed to illustrate the circumstances immediately preceding the murder, the jury should have been allowed to consider that he formed the intent to kill absent premeditation and deliberation and, therefore, was entitled to an instruction on second-degree murder. The court concluded that in the absence of evidence suggesting that the victim was killed without premeditation and deliberation, an instruction on second-degree murder would be improper.

In a murder case, the trial court did not commit plain error by failing to instruct the jury on the lesser-included offense of second-degree murder. For reasons discussed in the opinion, the evidence showed that the defendant acted with premeditation and deliberation.

The trial court did not err by declining to instruct the jury on second-degree murder when no evidence negated the State’s evidence of first-degree murder. The defendant argued that the evidence showed that he killed the victim in a “frenzied, crack-fueled explosion” of a long-simmering “rage of jealousy.” However, the court noted, premeditation and deliberation do not imply a lack of passion, anger or emotion. Nor, the court noted, does the defendant’s possible drug intoxication support an inference that he did not premeditate and deliberate. The State presented evidence of the defendant’s conduct and statements before the killing, including threats towards the victim; ill-will and previous difficulties between the parties; lethal blows rendered after the victim had been felled and rendered helpless; the brutality of the killing; and the extreme nature and number of the victim’s wounds.

The trial court did not commit plain error by failing to instruct the jury on the lesser-included offense of involuntary manslaughter. In the context of a shooting, the charge of involuntary manslaughter requires evidence of the absence of intent to discharge the weapon. This fact distinguishes involuntary manslaughter from its voluntary counterpart, which requires proof of intent. The defendant’s argument fails because there was no evidence at trial suggesting that the defendant did not intend to shoot his wife. Rather, the defendant’s defense relied on his argument that he was in a state of automatism--a complete defense to all criminal charges--which the jury rejected. Here, there was no evidence suggesting that the shooting was an accident.

In this assault and second-degree murder case, the trial court did not err by denying the defendant’s request to instruct the jury on involuntary manslaughter. Involuntary manslaughter is a killing without malice. However, where death results from the intentional use of a firearm or other deadly weapon, malice is presumed. Here, the defendant intentionally fired the gun under circumstances naturally dangerous to human life and the trial court did not err by refusing to give an instruction on involuntary manslaughter. 

In this murder case, the trial court did not commit plain error by failing to submit involuntary manslaughter to the jury. The trial court submitted first-degree murder, second-degree murder, voluntary manslaughter, and not guilty to the jury. The jury found the defendant guilty of second-degree murder. By finding the defendant guilty of this offense, the jury necessarily found, beyond a reasonable doubt, that the defendant acted with malice. Involuntary manslaughter is a homicide without malice, a fact rejected by the jury.

State v. Epps, 231 N.C. App. 584 (Jan. 7, 2014) aff’d, 368 N.C. 1 (Apr 10 2015)

(per curiam). In a first-degree murder case, the court held, over a dissent, that the trial court did not err by declining to instruct the jury on involuntary manslaughter. The evidence showed that the defendant fought with the victim in the yard. Sometime later the defendant returned to the house and the victim followed him. As the victim approached the screen door, the defendant stabbed and killed the victim through the screen door. The knife had a 10-12 inch blade, the defendant’s arm went through the screen door up to the elbow, and the stab wound pierced the victim’s lung, nearly pierced his heart and was approximately 4 1/2 inches deep. The court rejected the defendant’s argument that his case was similar to those that required an involuntary manslaughter instruction where the “defendant instinctively or reflexively lashed out, involuntarily resulting in the victim’s death.” Here, the court held, the “defendant’s conduct was entirely voluntary.”

In a case in which the victim died after consuming drugs provided by the defendant and the defendant was convicted of involuntary manslaughter, the trial court did not err by instructing the jury on second-degree murder and the lesser offense of involuntary manslaughter. The defendant objected to submission of the lesser offense. The evidence showed that the defendant sold the victim methadone and that the defendant had nearly died the month before from a methadone overdose. There was no evidence that the defendant intended to kill the victim by selling him the methadone. This evidence would support a finding by the jury of reckless conduct under either second-degree murder or involuntary manslaughter. 

In a case in which the defendant was convicted of second-degree murder, the trial court committed reversible error by denying the defendant’s request for a jury instruction on involuntary manslaughter. The evidence tended to show that the defendant did not intend to kill or seriously injure the victim: the victim became angry at the defendant when the defendant offered drugs to the victim’s girlfriend; after the victim punched or shoved the defendant, others separated the men; the victim then charged at the defendant, who struck him on the head or neck with a beer bottle, shattering the bottle; the defendant and the victim struggled and fell; and the defendant did not stab the victim. Cause of death was a large laceration to the neck. The court rejected the State’s argument that the defendant’s admission that he intentionally hit the victim with the bottle supported the trial court’s refusal to instruct on involuntary manslaughter. Although the intentional use of a deadly weapon causing death creates a presumption of malice, if the defendant adduces evidence or relies on a portion of the State’s evidence raising an issue on the existence of malice and unlawfulness, the presumption disappears, leaving only a permissible inference which the jury may accept or reject. Here, the defendant’s evidence sufficed to so convert the presumption.

State v. Juarez, 369 N.C. 351 (Dec. 21, 2016)

Reversing the Court of Appeals in this first-degree felony murder case, the court held that the trial court did not commit reversible error by failing to instruct the jury on the lesser included offenses of second-degree murder and voluntary manslaughter. The underlying felony for first-degree felony murder was discharging a firearm into an occupied vehicle in operation. The trial court denied the defendant’s request for instructions on second-degree murder and voluntary manslaughter. The Court of Appeals held that it was error not to instruct on the lessers because the evidence was conflicting as to whether the defendant acted in self-defense. The court found this reasoning incorrect, noting that self-defense is not a defense to felony murder. Perfect self-defense may be a defense to the underlying felony, which would defeat the felony murder charge. Imperfect self-defense however is not available as a defense to the underlying felony use to support a felony murder charge because allowing such a defense when the defendant is in some manner at fault “would defeat the purpose of the felony murder rule.” In order to be entitled to instructions on the lesser included offenses, “the conflicting evidence must relate to whether defendant committed the crime charged, not whether defendant was legally justified in committing the crime.” Here, there is no conflict regarding whether the defendant committed the underlying felony. The defendant does not dispute that he committed this crime; rather he claims only that his conduct was justified because he was acting in self-defense. 

In a case where the defendant was convicted of first-degree murder, the trial court did not err by failing to submit an instruction on second-degree murder and/or voluntary manslaughter. The defendant argued that the evidence negated premeditation and deliberation. The court disagreed, finding that the State offered substantial evidence of those elements. Specifically, the defendant had a tumultuous relationship with the victim, with ill-will existing between the two. The victim planned to call off their wedding and sent the defendant a text message telling him that he needed to move out of the home and that she would be changing the locks. Moreover, she told the defendant, who had financial troubles, that she would continue to seek child support payments. Her body was found the next day. After the killing, the defendant gave inconsistent statements about events of the day. He told the victim’s friend that he left early for work and that the victim was not at the home, and said that she had a doctor’s appointment. However, the defendant had the victim’s vehicle and the keys to his own car with him, leaving her with no vehicle. When the friend asked the defendant whether the victim’s vehicle was at the home when he went to work, the defendant never responded. Moreover, there was no evidence that the victim provoked the defendant. This constituted substantial evidence of premeditation and deliberation. The only evidence claimed by the defendant to negate premeditation and deliberation is the text message from the victim telling him to move out and signs of struggle in the home. From this evidence, the defendant claims that premeditation and deliberation were negated because the jury could have concluded that an argument aroused a sudden passion in him. The court rejected the notion that this evidence negated premeditation and deliberation. Likewise the court determined that the trial court did not err by failing to instruct the jury on voluntary manslaughter, again noting the lack of evidence of heat of passion.

In this case where the defendant was convicted of first-degree murder, the trial court did not err by failing to instruct the jury on the lesser included offense of voluntary manslaughter. On appeal, the defendant argued that he acted in the heat of passion. The defendant did not testify at trial, nor did any witness testify on his behalf. The State’s evidence indicated that the defendant was the initial aggressor and that he was the only one to make any threats or perform any violent acts. The court determined that there “simply [was] no evidence” to support heat of passion.

The trial court did not err by declining to instruct the jury on voluntary manslaughter. The trial judge instructed the jury on first- and second-degree murder but declined the defendant’s request for an instruction on voluntary manslaughter. The jury found the defendant guilty of second-degree murder. The defendant argued that the trial court should have given the requested instruction because the evidence supported a finding that he acted in the heat of passion based on adequate provocation. The defendant and the victim had been involved in a romantic relationship. The defendant argued that he acted in the heat of passion as a result of the victim’s verbal taunts and her insistence, shortly after they had sex, that he allow his cell phone to be used to text another man stating that the victim and the defendant were no longer in a relationship. The court rejected this argument, concluding that the victim’s words, conduct, or a combination of the two could not serve as legally adequate provocation. Citing a North Carolina Supreme Court case, the court noted that mere words, even if abusive or insulting, are insufficient provocation to negate malice and reduce a homicide to manslaughter. The court rejected the notion that adequate provocation existed as a result of the victim’s actions in allowing the defendant to have sex with her in order to manipulate him into helping facilitate her relationship with the other man. The court also noted that that there was a lapse in time between the sexual intercourse, the victim’s request for the defendant’s cell phone and her taunting of him and the homicide. Finally the court noted that the defendant stabbed the victim 29 times, suggesting premeditation.

In this assault and second-degree murder case, the trial court did not err by refusing to instruct the jury on self-defense and by omitting an instruction on voluntary manslaughter. The court noted that the defendant himself testified that when he fired the gun he did not intend to shoot anyone and that he was only firing warning shots. It noted: “our Supreme Court has held that a defendant is not entitled to jury instructions on self-defense or voluntary manslaughter ‘while still insisting . . . that he did not intend to shoot anyone[.]’” 

In this murder case, the trial court did not err by denying the defendant’s request for jury instructions on self-defense and voluntary manslaughter. The defendant’s theory was that the gun went off accidentally. Additionally, there was no evidence that the defendant in fact formed a belief that it was necessary to kill his adversary in order to protect himself from death or great bodily harm.

The trial court did not err by denying the defendant’s request for a voluntary manslaughter instruction. Although the defendant knew that his wife was having sex with other men and she threatened to continue this behavior, the defendant did not find her in the act of intercourse with another or under circumstances clearly indicating that the act had just been completed. Additionally, the defendant testified that he strangled his wife to quiet her.

State v. Edgerton, 368 N.C. 32 (Apr. 10, 2015)

In a case where the defendant was found guilty of violation of a DVPO with a deadly weapon, the court per curiam reversed and remanded for the reasons stated in the dissenting opinion below. In the decision below, State v. Edgerton, 234 N.C. App. 412 (2014), the court held, over a dissent, that the trial court committed plain error by failing to instruct the jury on the lesser included offense, misdemeanor violation of a DVPO, where the court had determined that the weapon at issue was not a deadly weapon per se. The dissenting judge did not agree with the majority that any error rose to the level of plain error.

The defendant met his former girlfriend and new boyfriend, the victim in the case, at a bar. The defendant asked the victim to step outside to talk. During the exchange, the victim told the defendant to hit him. (According to the concurrence, the victim said, “If you want to hit me, hit me, but this is not the way we need to solve this issue.”). The defendant hit the victim and broke his jaw in two places, requiring surgery to repair the damage. (1) The defendant argued that the trial court erred in refusing to instruct the jury on consent concerning AISBI. The majority stated that consent is not a defense to assault in North Carolina and held that the trial court did not err in refusing to instruct on consent for AISBI. The concurring judge found it unnecessary to decide whether consent is an element of or defense to assault, finding that the trial judge did not err in refusing to instruct on consent because the evidence did not show the victim consented to an assault inflicting serious bodily injury and arguably did not consent to an assault all.


(2) At sentencing, the State advised the trial judge that it had failed to disclose the fee paid to an expert to testify about the victim’s injuries. The trial judge found the failure to disclose was an “honest mistake.” The Court stated that it was not clear whether the trial judge found that a discovery violation had occurred, but assuming a violation occurred, the defendant was not prejudiced.

In this assault inflicting serious bodily injury case, no plain error occurred with respect to the trial court’s jury instructions defining “serious bodily injury” as to victim E.D. The court noted that while it prefers trial courts to use the Pattern Jury Instructions, an instruction is sufficient if it adequately explains each essential element of the offense. The Pattern Instruction provides that “[s]erious bodily injury is bodily injury that creates or causes [a substantial risk of death][serious permanent disfigurement].” Here, the trial court’s instruction stated, in pertinent part: “Serious bodily injury is injury that creates or causes a substantial risk of serious permanent disfigurement.” Although the trial court’s instruction was imperfect, the jury was not misled:

The instruction, viewed as a whole, correctly placed the burden of proof on the State for the two elements of felonious assault inflicting serious bodily injury. The trial court merely conjoined the language of two parentheticals from the pattern jury instruction. Moreover, the evidence put on by the State goes to prove the creation of serious permanent disfigurement, not a risk of serious substantial disfigurement. Therefore, even though the jury was incorrectly instructed that the State’s burden may be satisfied by the Defendant causing a substantial risk of serious permanent disfigurement, the State’s evidence sufficiently proved that E.D. actually suffered serious permanent disfigurement. We cannot say that it is reasonably probable that the outcome would have been different, but for the error in the jury instruction.

 

In a case in which the defendant was convicted, among other things, of assault with a deadly weapon on a governmental official, the trial court committed plain error by failing to instruct the jury on the lesser included offense of misdemeanor assault on a government official. Because the trial court did not conclude as matter of law that the weapon was a deadly one, but rather left the issue for the jury to decide, it should have instructed on the lesser included non-deadly weapon offense.

In this child abuse case, the trial court did not err by using the term “handling” to describe the element of intentional assault that was part of the child abuse charge. The trial court’s instruction was sufficient to explain the term assault as it related to the case.

Where the trial court submitted an instruction on automatism as a defense to a charge of felony child abuse, it was not required to instruct the jury on lesser included child abuse offenses. Automatism is a complete defense to a criminal charge and did not render any of the elements of felonious child abuse in conflict. 

Contrary to the conclusion of the Court of Appeals below, the trial court did not err in this felony child abuse case under G.S. 14-318.4 by failing to instruct the jury that the term “sexual act” for purposes of the offense is the definition provided for the term in what is now Article 7B of G.S. Chapter 14 (Rape and Other Sex Offenses).  Conducting a statutory construction analysis, the Supreme Court concluded that the legislative history of the Article 7B definitions statute, G.S. 14-27.20, indicated that the provided definition of “sexual act” was intended by the legislature to apply within its own article and, consequently, not to the offense of felony child abuse.  The court noted that since its enactment and throughout numerous legislative changes the definitions statute in Article 7B consistently has stated that its applicability is limited to its own article.  As neither the defendant nor the state presented the issue for the court in their petitions for discretionary review, the court declined to reach the defendant’s argument that the trial court’s instruction on the term “sexual act,” which seemed to match the definition of indecent liberties under G.S. 14-202.1, was erroneously overbroad.

State v. Stepp, 367 N.C. 772 (Jan. 23, 2015)

(per curiam). For reasons stated in the dissenting opinion below, the court reversed the court of appeals. In the decision below, State v. Stepp, __ N.C. App. __, 753 S.E.2d 485 (Jan. 21, 2014), the majority held that the trial court committed reversible error by failing to instruct the jury on an affirmative defense to a felony that was the basis of a felony-murder conviction. The jury convicted the defendant of first-degree felony-murder of a 10-month old child based on an underlying sexual offense felony. The jury’s verdict indicated that it found the defendant guilty of sexual offense based on penetration of the victim’s genital opening with an object. At trial, the defendant admitted that he penetrated the victim’s genital opening with his finger; however, he requested an instruction on the affirmative defense provided by G.S. 14-27.1(4), that the penetration was for “accepted medical purposes,” specifically, to clean feces and urine while changing her diapers. The trial court denied the request. The court of appeals found this to be error, noting that the defendant offered evidence supporting his defense. Specifically, the defendant testified at trial to the relevant facts and his medical expert stated that the victim’s genital opening injuries were consistent with the defendant’s stated purpose. The court of appeals reasoned:

We believe that when the Legislature defined “sexual act” as the penetration of a genital opening with an object, it provided the “accepted medical purposes” defense, in part, to shield a parent – or another charged with the caretaking of an infant – from prosecution for engaging in sexual conduct with a child when caring for the cleanliness and health needs of an infant, including the act of cleaning feces and urine from the genital opening with a wipe during a diaper change. To hold otherwise would create the absurd result that a parent could not penetrate the labia of his infant daughter to clean away feces and urine or to apply cream to treat a diaper rash without committing a Class B1 felony, a consequence that we do not believe the Legislature intended.

(Footnote omitted). The court of appeals added that in this case, expert testimony was not required to establish that the defendant’s conduct constituted an “accepted medical purpose.” The dissenting judge did not believe that there was sufficient evidence that the defendant’s actions fell within the definition of accepted medical purpose and thus concluded that the defendant was not entitled to an instruction on the affirmative defense. The dissenting judge reasoned that for this defense to apply, there must be “some direct testimony that the considered conduct is for a medically accepted purpose” and no such evidence was offered here.

State v. Carter, 366 N.C. 496 (Apr. 12, 2013)

The court reversed the decision below in State v. Carter,216 N.C. App. 453 (Nov. 1, 2011) (in a child sexual offense case, the trial court committed plain error by failing to instruct on attempted sexual offense where the evidence of penetration was conflicting), concluding that the defendant failed to show plain error. The court held that when applying the plain error standard

[t]he necessary examination is whether there was a “probable impact” on the verdict, not a possible one. In other words, the inquiry is whether the defendant has shown that, “absent the error, the jury probably would have returned a different verdict.” Thus, the Court of Appeals‟ consideration of what the jury “could rationally have found,” was improper.

Slip Op at 7 (citations omitted). Turning to the case at hand, the court found even if the trial court had erred, the defendant failed to show a probable impact on the verdict.

State v. Smith, 362 N.C. 583 (Dec. 12, 2008)

When instructing on indecent liberties, the trial judge is not required to specifically identify the acts that constitute the charge.

The defendant was tried for possession of a firearm by a felon, first-degree kidnapping, burglary, DVPO violations with a deadly weapon, first-degree rape and first-degree forcible sexual offense arising from the violent kidnapping and rape of his former girlfriend.

(1) The morning before the sixth day of the trial, the defendant jumped feet first from a second-floor mezzanine in the jail, injuring his left leg and ribs. The defendant was taken to the hospital for surgery. After a hearing, the trial court determined that the defendant’s absence from trial was voluntary and announced that the trial would proceed without him. The trial court considered and denied defense counsel’s motion that the court inquire into defendant’s capacity to proceed. The trial continued, and the defendant was convicted. He appealed, arguing that the trial court erred by denying defense counsel’s motion for an inquiry into capacity.

The Court of Appeals rejected the defendant’s argument. Nothing in the defendant’s prior record, conduct or actions provided the trial court with notice or evidence that the defendant may have been incompetent. For that reason, the court did not err by declining to conduct a more intensive hearing on the defendant’s capacity. The trial court had the opportunity to personally observe the defendant’s conduct and demeanor, heard arguments from the State and defense counsel, and took evidence concerning the defendant’s competency, including watching recorded footage of the defendant jumping 16 feet from the second-floor mezzanine.

(2) The trial court instructed the jury that it could find the defendant guilty of a first-degree sexual offense, if, in addition to the other required elements, it found the defendant had engaged in fellatio or anal intercourse. The defendant argued that this instruction deprived him of a unanimous jury verdict. The Court of Appeals rejected that argument, citing precedent that a jury verdict does not need to make a specific finding regarding precisely which sexual acts proscribed by G.S. 14-27.26 the defendant committed.

The defendant became abusive and violent toward his romantic partner, D.C., after finding out that she had engaged in an intimate relationship while he was in prison for a year. The defendant forced D.C. to drive him to his cousin’s house, while telling her that she would be having sex with both the defendant and his cousin. During the drive, the defendant repeatedly beat D.C. and threatened to hit her with grip pliers. Once the cousin got in the car, the defendant instructed D.C. to drive to the cousin’s sister’s house, where the three entered a shed behind the house.

While in the shed, the defendant demanded D.C. to perform oral sex on him while the cousin watched and told the cousin to prepare to have sex with D.C. Throughout the incident, D.C. refused the defendant’s demands several times, which resulted in him beating her with his hands, feet, and pliers. The defendant and the cousin forcibly removed D.C.’s shorts as she continued to object. At one point, and after several beatings, D.C. was able to escape and drive to the police station to report the crimes.

At trial, the jury found the defendant guilty of first-degree kidnapping and first-degree sex offense. On appeal, the defendant argued that the trial court should have given a jury instruction for the lesser included offense of second-degree forcible sex offense. Specifically, the defendant argued that the evidence of the element requiring that the perpetrator be “aided or abetted by one or more persons” supported the instruction on the lesser-included offense. Slip op. at ¶ 22.

The Court of Appeals disagreed, finding that the cousin willingly accompanied and rode in the car with the couple; the cousin followed instructions from the defendant and waited while the defendant forced D.C. to enter the shed; the cousin helped the defendant restrain and remove D.C.’s shorts; and the cousin stated to D.C. she “might as well get it over with,” referring to submission to the sexual assault. The Court determined that the cousin was not a passive bystander and in fact assisted, promoted, and encouraged the defendant in the sexual offense. Thus, the Court held that no contradictory evidence was presented in relation to the element in question to justify an instruction on a lesser-included offense.

The defendant and his longtime friend, Ivy, began dating in 2017. Per Ivy’s clear and constant requests, their sexual contact with each other was limited to kissing and touching above the waist. Whenever the defendant tried to touch her below the waist, she told him to stop.

On August 1, 2017, Ivy visited the defendant at his home and went with the defendant into his bedroom where they began watching television. They then began to engage in “hot and heavy” physical contact, including kissing, touching Ivy’s breasts, and removing Ivy’s shirt, which she was “okay” with. When the defendant attempted to put his hand down Ivy’s shorts, she pushed him away and told him “no.” The defendant removed his hand momentarily but made repeated attempts. Ivy twisted her legs to keep them together, but eventually the defendant was able to remove her shorts. Ivy again told the defendant “no” and to stop because she “wasn’t ready for that.” The defendant then pinned Ivy’s hands over her head, pushed her underwear aside, and penetrated her vagina with his penis. Ivy told the defendant to stop and said “no,” but he continued to penetrate her. Eventually, Ivy gave up because the defendant did not listen.

After the events, Ivy got dressed and left the home. The defendant walked with her outside, asking if she was okay, to which she responded that she was. Ivy then left in her car. The defendant repeatedly texted Ivy after the incident, asking her via text to promise him she was okay and continuing to text her daily. The defendant made continued attempts to talk to and see Ivy, despite her pleas that he leave her alone. Five days after the incident, Ivy reported the incident to police.

The defendant was indicted on charges of second-degree forcible rape and attempted second-degree forcible rape. The defendant testified that he thought Ivy consented to sex although he admitted Ivy stated “she was not ready” that night and conceded that “she may have pushed me a little bit” when he initiated sexual contact. The defendant was found guilty of second-degree forcible rape and not guilty of attempted second-degree forcible rape.

On appeal, the defendant argued that the trial court erred, or plainly erred, by failing to provide a jury instruction on the defense of consent based on the defendant’s “reasonable belief” that Ivy consented to the sexual acts. The Court of Appeals reviewed the argument under the plain error standard because the defendant did not request this instruction at trial. The Court rejected this argument, noting that neither the Court nor the State Supreme Court have recognized a “reasonable belief of consent” defense to rape. The Court cited State v. Moorman, 320 N.C. 387, 389–92 (1987), in which the Supreme Court held “that a defendant could be convicted of rape by force and against the will of the victim, who was incapacitated and asleep at the time, despite the defendant’s testimony that he mistook the victim for someone he knew and believed she consented to vaginal intercourse.” The Court concluded that because a defendant’s knowledge of whether the victim consented is not a material element of rape and mistaken belief in consent has not been recognized as a defense to rape, the trial court did not err in failing to provide an instruction to that effect. The Court contrasted other statutes involving rape and sex offense in which the General Assembly has used reasonableness language, such as with respect to revocation of consent in G.S. 14-27.20(1a)(b).

The defendant alternatively argued that he had been denied his right to effective assistance of counsel because his defense counsel did not request an instruction on the defendant’s reasonable belief of consent defense. The Court rejected that argument based on the conclusion that the defendant was not entitled to the instruction.

The defendant was convicted of indecent liberties with a child and felony child abuse by sexual act based on crimes committed against his daughter and stepdaughter. 

(1) The court of appeals determined that the trial court did not plainly err in instructing the jury on felonious child abuse by sexual act. G.S. 14-318.4(a2) provides that any parent or legal guardian of a child under 16 who “commits or allows the commission of any sexual act upon the child is guilty of a Class D felony.” The trial court instructed the jury in accordance with NC Pattern Jury Instruction – Criminal 239-55B that a “sexual act is an immoral, improper or indecent touching or act by the defendant upon the child.” On appeal, the defendant argued that the definition of “sexual act” in G.S. 14-27.20(4) should apply. The term is therein defined as “[c]unninglingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse.” It also includes “the penetration, however slight, by any object into the genital or anal opening of another person’s body.” 

The court of appeals in Wohlers found the defendant’s argument foreclosed by State v. Alonzo, 373 N.C. 437 (2020). In Alonzo, the state supreme court concluded that the definitions in G.S. 14-27.20 applied only within Article 7B of Chapter 14. Thus, the Alonzo court held that it was error for the court of appeals below to have concluded that the definition of sexual act in G.S. 14-27.20(4) applied to offenses under G.S. 14-318.4(a2), which is contained in Article 39 of Chapter 14. 

(2) The court of appeals determined that even if the trial court erred in failing to strike testimony from a forensic interviewer that arguably vouched for the victim’s credibility, the defendant could not show he was prejudiced by the error. The interviewer testified that the defendant’s stepdaughter’s disclosure was “tentative,” and that “she’s a child who falls into the I want to tell someone so this will stop, but I don’t really want it to go past that, and I just want it to be done.” The defendant did not move to strike the testimony at trial, but argued on appeal that it was impermissible vouching of the victim’s credibility. 

The court held that the defendant could not show that the alleged error had a probable impact on the jury’s finding that he was guilty, noting that the defendant himself had provided a written statement that was consistent with the victim’s testimony and which was introduced as evidence at trial.

(3) The court of appeals held that the trial court properly determined the defendant’s maximum term of imprisonment for felony child abuse by sexual act, a Class D felony, based upon the minimum term it had selected (64 months) rather than the minimum term permitted by statute (51 months). G.S. 15A-1340.17(f) provides that, for offenders sentenced for reportable convictions that are Class B1 through E felonies, the maximum term of imprisonment “shall be equal to the minimum term of imprisonment and twenty percent (20%) of the minimum term of imprisonment, rounded to the next highest month, plus 60 additional months.” Once the trial court set the defendant’s minimum term of imprisonment at 64 months (the top of the presumptive range), it properly added 64 plus 13 (20 percent of 64, 12.8, rounded to the next highest month) plus 60, totaling 137 months.

In this second-degree rape case, the trial court did not commit plain error by failing to instruct the jury that lack of consent was an element of rape of a physically helpless person. Because lack of consent is implied in law for this offense, the trial court was not required to instruct the jury that lack of consent was an essential element of the crime.

In this rape case, because the evidence was clear and positive and not conflicting with respect to penetration, the trial court did not err by failing to instruct on attempted rape. Here, among other things, a sexual assault nurse testified that the victim told her she was penetrated, the victim told the examining doctor at the hospital immediately after the attack that the defendant had penetrated her, the defendant’s semen was recovered from inside the victim’s vagina.

In a multi-count indecent liberties with a student case, the trial court did not err by failing to instruct the jury using the specific acts alleged in the amended bill of particulars. The trial court properly instructed the jury that it could find the defendant guilty if it concluded that he willfully took “any immoral, improper, or indecent liberties” with the victim. The actual act by the defendant committed for the purpose of arousing himself or gratifying his sexual desire was immaterial. The victim’s testimony included numerous acts, any one of which could have served as the basis for the offenses.

In a rape of a child by an adult case, the trial court did not commit plain error by failing to instruct the jury on the lesser offense of first-degree rape where there was no dispute that the defendant was at least 18 years of age. 

In a child sexual offense case in which the indictment specified digital penetration and the evidence supported that allegation, the trial court was not required to instruct the jury that it only could find the defendant guilty if the State proved the specific sex act stated in the indictment.

The trial court did not err by failing to define the term “larceny” for the jury. The court noted that it has previously determined that “larceny” is a word of “common usage and meaning to the general public[,]” and thus it is not error to not define it in the jury instructions. It further noted: “While we disagree that the legal term “larceny” is commonly understood by the general public, we are bound by precedent . . . and thus this issue is overruled.”

The defendant was tried in Guilford County on charges of discharging a weapon into occupied property, firearm by felon, first-degree burglary, trafficking cocaine, possession with intent, and two counts of habitual felon. At the charge conference, the defendant requested an instruction on misdemeanor breaking or entering, which the trial judge agreed to give. The defendant objected to jury instructions on actual and constructive possession for the drug offenses, but the trial court overruled the objection and instructed the jury on both theories of possession. The jury convicted on all counts and the defendant appealed.

(1) In its instruction to the jury on misdemeanor breaking or entering, the trial court deviated from the language of the pattern instruction. While the pattern instruction states the offense need not require felonious intent “so long as the breaking or entering was wrongful, that is, without any claim of right,” the trial court instructed the jury that the defendant could be found guilty of the crime if they believe he lacked felonious intent but acted “without consent of the owner or tenant.” Slip op. at 11-12. This “minor deviation” from the pattern instruction did not amount to error, as the instruction was supported by the evidence and “correct in law.” Id. at 13. Even assuming error, the defendant could not show prejudice—he did not make any claim of right to enter the property and the jury convicted on first-degree burglary in any event.

(2) As to the jury instructions on actual and constructive possession, it was error to instruct the jury on actual possession where no evidence supported that theory. However, the defendant again could not demonstrate prejudice. The evidence of defendant’s constructive possession of the drugs was “exceedingly strong,” and this defeated any claim of prejudice.

(3) At the initial sentencing hearing, the trial court failed to impose a sentence for one of the two habitual felon convictions. The next day, the trial court realized its error and imposed the second habitual sentence. The defendant gave notice of appeal following the first hearing and contended the trial court lacked jurisdiction to sentence the defendant at the second hearing. The trial court normally loses jurisdiction to act once notice of appeal has been given. However, G.S. 15A-1448(a)(3) authorizes the trial court to act to correct a sentencing error within 14 days of the original sentence, even if the defendant has given notice of appeal and even without a motion for appropriate relief. See State v. Lebeau, ___ N.C. App. ___, 843 S.E.2d 317 (April 21, 2020). The trial court was required to sentence the defendant as a habitual felon once the verdict was returned and doing so was not a substantive amendment of the sentence but merely a “statutorily ‘necessary by-product’ of the sentence.” McMillan Slip op. at 20. The trial court therefore retained jurisdiction to correct the sentence, and the convictions were unanimously affirmed.

The trial court did not commit plain error by failing to define larceny in instructions it provided to the jury on burglary. Because evidence was presented permitting the inference that the defendants intended to steal property and there was no evidence suggesting that they intended to merely borrow it, the jury did not need a formal definition of the term “larceny” to understand its meaning and to apply that meaning to the evidence.

In a burglary case, the trial court did not err by failing to reiterate an instruction on the doctrine of recent possession when instructing the jury on the lesser-included offense of felonious breaking or entering. The trial court properly instructed the jury on felonious breaking and entering by describing how the elements of that offense differed from first-degree burglary, an offense for which they had already received instructions. By describing the differences in charges the trial court left the recent possession instruction intact and applicable to the lesser charge of felonious breaking and entering.

In a burglary case, instructions which allowed the jury to find the defendant guilty if they found that he intended to commit a felony larceny, armed robbery, or sexual offense did not impermissibly allow for a non-unanimous verdict.

State v. Boyd, 366 N.C. 548 (June 13, 2013)

For the reasons stated in the dissenting opinion below, the court reversed State v. Boyd, 222 N.C. App. 160 (Aug. 7, 2012), and held that no plain error occurred in a kidnapping case. In the decision below, the court of appeals held, over a dissent, that the trial court committed plain error by instructing the jury on a theory of second degree kidnapping (removal) that was not charged in the indictment or supported by evidence. The dissenting judge did not believe that the error constituted plain error.

In this kidnapping case, although the trial court erred by instructing the jury on theories that were not alleged in the indictment, no plain error occurred. After rejecting the State’s argument that the defendant was precluded from plain error review, the court noted that the instruction error pertained to the elements that elevate a kidnapping to first-degree: failure to release in a safe place; serious injury to the victim; or sexual assault of the victim. Here, although the indictment charged only the element of sexual assault, the trial court instructed the jury that it could find the defendant guilty based on failure to release in a safe place, sexual assault or serious injury to the victim. Thus, the jury was instructed on elements not charged in the indictment, and this was error. However, the jury was given a special verdict sheet that separately listed all of the elevating elements, and the jury found the defendant guilty based on each individual elevating element. Because the State presented compelling evidence to support the elevating element of failure to release in a safe place (among other things, the defendant left the victim alone at the bottom of a rocky creek embankment under a bridge near a deserted stretch of road) and because the jury separately found the defendant guilty of first-degree kidnapping based on all of the elevating elements, no plain error occurred.

The defendant, the former District Attorney for Person and Caldwell Counties, was tried for obtaining property by false pretenses, conspiracy to obtain property by false pretenses, aiding and abetting obtaining property by false pretenses, three counts of obstruction of justice, and failure to discharge the duties of his office. The jury acquitted on one count of felony obstruction and the conspiracy count but convicted on the remaining charges (with the exception that the jury returned a verdict of guilty of misdemeanor obstruction on one of the remaining felony obstruction counts). The trial court subsequently arrested judgment on the aiding and abetting obtaining property conviction. The charges stemmed from a scheme whereby the defendant and another elected District Attorney hired each other’s wives to work in each other’s offices. Under this arrangement, both wives were wrongfully paid for working hours that they had not actually worked.

(1) There was insufficient evidence to support the conviction for obtaining property by false pretenses. The State alleged that the defendant acted in concert with the employee who improperly submitted work hours. Acting in concert requires the actual or constructive presence of the defendant at the scene of the crime. “A person is constructively present during the commission of a crime if he is close enough to provide assistance if needed and to encourage the actual execution of the crime.” Slip op. at 15 (citation omitted). Although the employee at issue worked for the defendant, she was allowed to work at her husband’s office in another district. The defendant was therefore not physically present when the fraud of reporting unworked hours occurred. The State argued that the defendant was constructively present, pointing out that the fraudulent hours were approved by a supervisor at the defendant’s direction. The court rejected this argument, noting that the approval of hours occurred at a much later time than when the hours were submitted. While “actual distance is not determinative, . . . the accused must be near enough to render assistance if need be and to encourage the actual perpetration of the crime.” Id. at 19 (citation omitted). Here, the defendant was not in the same county as the employee who submitted the fraudulent hours at the time they were submitted. The fact that the employee could have called the defendant for help with the crime at the time was not enough to satisfy the constructive presence element. “To hold the theory of acting in concert would be satisfied merely where ‘remote assistance’ is possible would broadly expand the universe of criminal conduct under this theory.” Id. at 22. Thus, the defendant’s conviction for acting in concert to obtain property by false pretenses was vacated for insufficient evidence [although the trial court was instructed on remand to reinstate the judgment previously arrested for aiding and abetting obtaining property].

(2) There was also insufficient evidence of felony obstruction of justice. That offense requires the State to prove that the defendant actually impeded the administration of justice. The indictment alleged that the defendant made false statements to an SBI investigator concerning the employee. One of the defendant’s statements at issue was “at most misleading, and not false,” as it was a misrepresentation by omission and not affirmatively a false statement as the indictment charged. There was sufficient evidence that another of the defendant’s statements to the investigator was false, but there was no evidence that this statement actually obstructed the course of the investigation. The defendant responded truthfully to some of the investigator’s questions about the employee, which actually facilitated the investigation. The defendant was never directly asked whether the employee was in fact performing work for the defendant. “To support a conviction for obstruction of justice, the State must establish substantial evidence for every element of the crime, including that the act in question ‘obstructed justice[.]’” Id. at 27 (citation omitted). The motion to dismiss for felony obstruction of justice therefore should have been granted, and that conviction was vacated. 

(3) The defendant argued that the trial court improperly excluded testimony regarding an email sent by an assistant to the Administrative Office of the Courts at the defendant’s direction. At trial, the defendant argued that the email fell within the business records exception to the prohibition on hearsay, that the email was simply not hearsay, and that the State opened the door to the admission of the email through its questions of the witness. On appeal, the defendant argued that the email should have been admitted because it was a directive to his employee, pointing to cases holding that commands are not hearsay because they are not offered for the truth of the matter (rather, they are offered to show that the command was given). It was not apparent from context that the defendant was arguing for the email’s admission as a command, and the parties and trial court did not address that argument. Since this argument was not made at the trial level, it was not preserved and was waived on appeal.

(4) The trial court did not commit plain error by failing to instruct the jury on the specific misrepresentations for the obtaining property by false pretenses offenses. “[A] jury instruction that is not specific to the misrepresentation in the indictment is acceptable so long as the court finds ‘no variance between the indictment, the proof presented at trial, and the instructions to the jury.’” Id. at 34 (citation omitted). The defendant argued that the evidence showed alternative false representations that the jury could have improperly relied on in rending its verdict of guilty for the two offenses. Reviewing the evidence, the court rejected this argument. “We hold the trial court did not err, nor plainly err, in failing to give an instruction about the misrepresentation alleged in the indictment.” Id. at 37.

(1) The trial court did not err in its obtaining property by false pretenses instructions. The charge arose out of the defendant’s alleged fraud in connection with an insurance claim. The trial court instructed the jury that to find the defendant guilty it must find that he made a representation, that the representation was false, that it was calculated and intended to deceive, that the victim was deceived by it, and that the defendant thereby obtained property from the victim. The defendant argued that the lack of specificity in the instructions would allow the jury to convict him if they found any false representation. The court noted prior case law holding that a jury instruction that is not specific as to the misrepresentation in the indictment is acceptable so long as there is no fatal variance between the indictment, proof at trial, and the jury instructions. Here, the indictment alleged that the defendant obtained the property by failing to disclose on his insurance application that he had previously pled guilty to a felony offense. At trial the defendant stipulated that he had pled guilty to a felony offense. The defendant failed to show any fatal variance between the indictment, proof, and jury instructions and thus no error occurred.

(2) The trial court did not err with respect to its instructions on insurance fraud. The instructions informed the jury that to find the defendant guilty they must find that an insurance policy existed; that the defendant presented a written statement in support of the claim; that the statement contained material false or misleading information; that the defendant knew the statement contained false or misleading information; and that the defendant acted with intent to defraud. The court noted that it has found plain error where there is evidence of various misrepresentations which the jury could have considered in reaching a verdict and the trial court fails to instruct on the specific misrepresentation. Here, however, the only evidence of false or misleading information was the defendant’s affidavit in which he failed to disclose that major repairs were done to the vehicle after purchase. Thus, no fatal variance exists between the indictment, the evidence, and the jury instructions, and no error occurred.

In an obtaining property by false pretenses case, the trial did not err by failing to specify in the jury instructions the misrepresentation made by defendant or the property the defendant received. Noting that the trial court used the standard pattern jury instruction, N.C.P.I--Crim. 219.10, the court found no error. 

(1) The defendant was indicted for trafficking in MDMA, among other charges. When the case came on for trial, the trial judge called in prospective jurors and questioned them about undue hardships and conflicts with the parties and informed them of the charges against the defendant. The prosecutor then requested a bench conference at which he pointed out that the substance in the lab report showed that the relevant substance was methamphetamine, not MDMA. The prosecutor gave the defendant the choice between having the State dismiss the MDMA charge and reindict for trafficking in methamphetamine, or waiving indictment and proceeding by bill of information. The defendant chose the latter and was convicted at trial. On appeal, the defendant argued that the trial court lacked subject matter jurisdiction because the State did not file the superseding information “before . . . commencement of trial” within the meaning of G.S. 15A-646. The Court of Appeals disagreed, concluding that G.S. 15A-646 does not place any timing deadline on the State, but rather merely imposes a ministerial duty on the judge to dismiss the initial charge if a superseding indictment or information is filed before trial. The appellate court also rejected the defendant’s argument that the trial court lacked subject matter jurisdiction because the defendant was not formally arraigned on the new charge, as the lack of formal arraignment is not revisable error when the defendant does not object and assert inadequate knowledge of the charge. (2) The defendant also argued that the trial court committed plain error by failing, despite the lack of a request or objection, to instruct the jury on the requirement that the defendant have guilty knowledge of the methamphetamine. The Court of Appeals rejected the argument, distinguishing an earlier case, State v. Coleman, 227 N.C. App. 354 (2013). In Coleman, the court found plain error when the trial court failed to instruct on guilty knowledge for a defendant convicted of trafficking heroin who knew he possessed drugs, but who thought he had marijuana and cocaine, not heroin. Here, the defendant denied any knowledge about the existence of the methamphetamine and argued that it belonged to someone else. Even assuming the trial court erred by not giving the instruction, the Court of Appeals concluded it would not rise to the level of plain error given the evidence against the defendant.

The defendant was convicted of trafficking in opium among other crimes. He argued on appeal that the trial court committed plain error when, despite the lack of a request by the defendant, it failed to instruct the jury on the lesser-included offense of selling hydrocodone. The Court of Appeals found no error. The court applied the rule that the trial judge should instruct the jury on any lesser included offense supported by any version of the evidence when there is conflicting evidence on an essential element of the charged. Here, there was no conflicting evidence. An analyst testified that the total weight of the drug tablets sold by the defendant was over 8 grams, while another witness testified that the defendant sold twenty “10-milligram hydrocodone” pills. The testimony was not conflicting, however, because only the total weight of the pill mixture mattered in establishing the elements of the charged offense. In the absence of conflicting evidence, the trial judge did not err by not instructing on a lesser-included offense.

The trial court did not err by failing to instruct the jury on an exemption to a drug trafficking charge. The defendant argued that he was exempt from prosecution as an “ultimate user” pursuant to G.S. 90-101(c). The statute defines an ultimate user as a person who lawfully possesses a controlled substance for his own use, or for the use of a member of his household. The defendant was found in possession of 54 dosage units of oxycodone weighing 6.89 grams. The defendant argued that the trial court erred by not instructing the jury sua sponte on the ultimate user exception. The court found however that the record lacked substantial evidence by which a jury instruction on this exemption would have been required. The evidence showed that the defendant did not lawfully possess his father’s oxycodone pills solely for his father’s prescribed use, as required to fall within the ultimate user exemption. Rather, the record reflects overwhelming evidence that the defendant possessed his father’s oxycodone for his own purpose of unlawfully selling the pills. Although the defendant presented evidence that the oxycodone was prescribed to his father, that the defendant drove his father to and from appointments related to his care, and that the defendant lived with and cared for his father, “no reasonable person could conclude that Defendant was in lawful possession of his father’s oxycodone at the time of his arrest.” Among other things the defendant gave a written confession admitting that he was selling the pills to make money. Because the defendant failed to present substantial evidence that he possessed the pills solely for his father’s use, he was not entitled to the instruction.

State v. Godwin, 369 N.C. 604 (June 9, 2017)

In this DWI case, the trial court did not err by denying the defendant’s request for a special jury instruction explaining that results of a chemical breath test are not conclusive evidence of impairment. Following the pattern jury instructions for DWI, the trial court explained to the jury that impairment could be proved by an alcohol concentration of .08 or more and that a chemical analysis was “deemed sufficient evidence to prove a person’s alcohol concentration.” The trial court also inform the jury that they were the sole judges of the credibility of each witness and the weight to be given to each witness’s testimony. This statement signaled to the jury that it was free to analyze the weight and effect of the breathalyzer evidence, along with all the evidence presented at trial. Therefore, the standard jury instruction on credibility was sufficient and the trial court adequately conveyed the substance of the defendant’s request instructions to the jury.

In this DWI case, the trial court erred by refusing to instruct the jury on the defense of necessity. The defendant was arrested for DWI while driving a golf cart. The evidence showed that the defendant and his wife used the golf cart on paths connecting their home to a local bar, that he drove the golf cart to the bar on those paths on the evening in question, and that he planned to return the same way. However when a fight broke out at the bar, the defendant and his wife fled on the golf cart, driving on the roadway. The defendant was convicted and he appealed. The court began its analysis by noting that the affirmative defense of necessity is available to DWI defendants and involves these elements: reasonable action, taken to protect life, limb, or health of a person, and no other acceptable choices available. The trial court erred by applying an additional element, requiring that the defendant’s action was motivated by fear. The court went on to determine that an objective standard of reasonableness applies to necessity, as compared to duress which appears to involve a subjective standard. The evidence was sufficient to satisfy the first two elements of the defense: reasonable action taken to protect life, limb, or the health of a person. Here, the bar attracted a rough clientele, including “the biker crowd.” It was not unusual for fights to break out there, but the bar had no obvious security. On the night in question, the bar atmosphere became “intense” and “mean” such that the two decided to leave. The defendant then argued with several men in the parking lot, which escalated to shouting and cursing. The main person with whom the defendant was arguing was described as the “baddest mother_cker in the bar.” The defendant punched the man, knocking him to the ground. The man was angry and drew a handgun, threatening the defendant. Neither the defendant nor his wife were armed. The scene turned “chaotic,” with a woman telling the defendant’s wife that the man was “crazy” and that they needed to “get out of [t]here.” The defendant’s wife was concerned that the man might shoot the defendant, her or someone else. When the defendant saw the gun, he screamed at his wife to leave. The defendant’s wife said she had no doubt that if they had not fled in the golf cart they would have been hurt or killed by the man with the gun. On these facts the court held:

[S]ubstantial evidence was presented that could have supported a jury determination that a man drawing a previously concealed handgun, immediately after having been knocked to the ground by Defendant, presented an immediate threat of death or serious bodily injury to Defendant, [his wife], or a bystander, and that attempting to escape from that danger by driving the golf cart for a brief period on the highway was a reasonable action taken to protect life, limb, or health.

The court also found that there was sufficient evidence as to the third element of the defense: no other acceptable choices available. With respect to whether the perceived danger had abated by the time the defendant encountered the officer, the court noted that the defendant had pulled off the highway approximately 2/10 of a mile from the bar and the defendant’s wife said that she saw the officer within minutes of the altercation. The court concluded: “On the facts of this case, including . . . that there was a man with a firearm who had threatened to shoot Defendant, and who would likely have access to a vehicle, we hold two-tenths of a mile was not, as a matter of law, an unreasonable distance to drive before pulling off the highway.” The court further clarified that the defenses of necessity and duress are separate and distinct. And it held that the evidence also supported a jury instruction on duress.

 

In this impaired driving case, the trial court did not err by denying the defendant’s requested special jury instruction and instructing instead using Pattern Jury Instruction 270.20A. The special instruction would have informed the jury that the results of the chemical analysis did not create a presumption that the defendant was impaired or that the defendant had an alcohol concentration of .08 or greater; the jury was permitted to find that the defendant had an alcohol concentration of .08 or greater based on the results of the chemical analysis but was not required to do so; and the jury was allowed to consider the credibility and weight to be accorded to the results of the chemical analysis.

In this Bladen County case, the defendant was convicted of second-degree murder and possession of a firearm by a felon after shooting a man in an altercation between several people at an apartment complex. There were conflicting accounts about which of the people involved had guns, although the defendant testified that he fired his weapon when he believed that one of the men with which he was fighting had a gun, and that he was about to be killed. On appeal, the defendant argued that the trial court erred in declining his request to instruct the jury on the affirmative defense of justification to possess a firearm as a felon—a defense recently recognized by the Supreme Court in State v. Mercer, 373 N.C. 459 (2020). To be entitled to a jury instruction on justification, a defendant must meet a four-part test: (1) that the defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury; (2) that the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) that the defendant had no reasonable legal alternative to violating the law; and (4) that there was a direct causal relationship between the criminal action and the avoidance of the threatened harm. Id. at 464. Additionally, to be entitled to the justification defense, the defendant must possess the firearm only while under threat. Id. Here, taking the evidence in the light most favorable to the defendant, the Court of Appeals concluded that the defendant presented evidence of all the required elements. As to the imminent threat, the victim had knocked the defendant onto his buttocks and heard others saying someone had a gun and “pop him.” As to the second element, the defendant was not the aggressor and attempted to explain to the victim that he was not there to fight. As to the availability of an alternative, evidence showed that the victim attacked the defendant, and a reasonable jury could have concluded that it was too late to call 911 and that running away would have put the defendant at risk of being shot. And as to the causal relationship between the avoidance of harm and the criminal conduct, testimony indicated that the defendant took possession of the firearm only after he heard others saying the victim had a gun, and that he abandoned it when he was able to run away. Finally, the court concluded that the defendant was prejudiced by the trial judge’s failure to give the instruction, as a reasonable jury may have acquitted the defendant on the firearm charge if it had been permitted to consider whether he was justified in possessing it. Accordingly, the majority reversed the conviction and remanded the case for a new trial.

A dissenting judge would have concluded that the required elements for the justification instruction were not met because the defendant intentionally placed himself in a dangerous situation, and because he had many reasonable alternatives to violating the law.

(1) The State and the defendant’s version of events were inconsistent. For purposes of determining the sufficiency of the evidence supporting a jury instruction on justification, the Court of Appeals recounted the defendant’s version of events. The defendant was in David Harrison’s trailer drinking bourbon when Harrison suddenly stood up while only a few feet from the defendant, pulled a pistol out of his pocket, pointed it toward the wall near the defendant, and fired a shot at the wall. Before pulling out the gun, Harrison had not threatened the defendant in any way, nor did he appear angry or upset. As soon as Harrison fired the shot at the wall, the defendant grabbed the pistol from Harrison and left the trailer. The defendant went to look for Karen Tucker, who was dating his father, and who he believed would be sober and safely able to take the gun from him. When the defendant did not find Karen in her trailer, he waited with the gun in his possession, in the presence of Karen’s daughters, until Karen arrived. The defendant then gave Karen the gun.

Law enforcement officers who later arrived on the scene did not find bullet holes inside of Harrison’s trailer but did find a shell casing sitting on a coffee table. The defendant was charged with a number of offenses, including possession of a firearm by a felon. At trial, the defendant requested a jury instruction on the defense of justification. The trial court denied the request, and the jury found the defendant guilty.

On appeal, the defendant argued that the trial court erred by denying his request for a jury instruction on the defense of justification. Using the test outlined in State v. Mercer, 373 N.C. 459, 463 (2020), the Court of Appeals determined that the evidence at trial was insufficient to establish the first factor of the test, which requires “that the defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury.” The Court concluded that even assuming Harrison’s drunken act of firing his pistol into the wall or ceiling of his house represented an “impending threat of death or serious bodily injury” to the defendant, that threat was gone once the defendant left Harrison’s trailer with the gun, and the defendant did not take advantage of other opportunities, described in the opinion, to dispose of the gun.

(2) The State conceded that the trial court erred in imposing attorneys’ fees without providing the defendant with notice and an opportunity to be heard. At the time of sentencing, the defendant’s court-appointed counsel had not yet calculated the number of hours worked on the case. The trial court explained to the defendant that those would be calculated later and submitted to the court. The court advised the defendant that it would sign what it felt to be a reasonable fee. The court later entered a civil judgment for $2,220 without first informing the defendant of the amount. The Court of Appeals held that the defendant was not provided sufficient opportunity to be heard before entry of that civil judgment. It thus vacated the civil judgment and remanded the matter to the trial court for further proceedings on that issue.

The defendant was convicted at trial of impersonating an officer and possession of a weapon of mass destruction (flashbang grenades) in Onslow County. On appeal, the Court of Appeals determined that flashbang grenades did not qualify as a weapon of mass destruction and vacated that conviction. The N.C. Supreme Court reversed on that point and remanded for the Court of Appeals to consider the defendant’s other arguments. The defendant filed a new brief with the court, arguing the trial court erred by failing to instruct the jury about the exception for lawful possession of weapons of mass destruction. See G.S. § 14-288.8(b)(3). The defendant contended that he presented evidence that he qualified for the exception as a person “under contract with the United States” and it was error to fail to instruct the jury on the exception. While the defendant challenged jury instructions in his original brief to the Court of Appeals, he did not raise this issue. He therefore asked the court to invoke Rule 2 of the Rules of Appellate Procedure to review this argument, and the court granted that request.

At trial, the defendant presented evidence that he was an active-duty U.S. Marine serving as a weapons technician, and that he came into possession of the grenades as part of his duties in that capacity. The State did not contest this evidence at trial, but argued on appeal that the defendant failed to promptly return the weapons to the Marine Corps and that the defendant was “on a detour” (and not acting in his capacity as a solider) at the time of the offense. “Even if the State’s argument is true, this would not overcome Defendant’s properly admitted testimony and his right for the jury to resolve this issue.” Carey Slip op. at 8. The trial court had a duty to instruct the jury on all substantial features of the case, including the defense of lawful possession raised by the defendant’s evidence, and its failure to do so was plain error. The judgment of conviction for possession of a weapon of mass destruction was therefore vacated and the matter remanded for a new trial on that offense.

Judge Young dissented. According to his opinion, the N.C. Supreme Court’s decision remanding the case was limited to “the defendant’s remaining challenges” – those that were raised but not decided in the defendant’s original appeal to the Court of Appeals. The mandate therefore did not include new arguments that had not previously been raised at all, and Judge Young would not have considered the lawful possession argument.

The defendant appealed from his conviction for the first-degree murder of his grandfather based on the felony murder rule using the attempted murder of his mother with a deadly weapon as the predicate felony. The trial court instructed the jury that it could find the defendant guilty of first-degree murder if it found that he killed his grandfather as part of a continuous transaction during which he also attempted to murder his mother using either his hands or arms or a garden hoe as a deadly weapon. The defendant appealed, arguing that his hands and arms were not properly considered a deadly weapon for purposes of the felony murder rule and that the trial court’s erroneous instruction that the jury could find that he attempted to murder his mother using a garden hoe was prejudicial error.

The defendant was at the home of his mother and grandfather on November 5, 2013. He owed money to both and they had recently told him that they would lend him no more.  As his mother went outside the defendant followed behind her, saying he was leaving to go to work. His mother walked into a storage shed behind the house, where she remained for five or 10 minutes. She did not hear the defendant get into his car or hear the vehicle leave. While she was in the shed, she thought she heard raised voices. She came out to check on her father. As she walked toward the house, she felt someone put an arm around her neck. Her attacker put a hand over her nose and mouth and she lost consciousness. The next thing she remembered was someone opening her eyelid as she lay on the ground. She saw defendant’s face and thought he was there to help her.

The defendant worked from 11 p.m. to 7 a.m., returning home the following morning. When he got home he saw that his mother had been attacked and called for emergency assistance. The defendant’s grandfather was dead when the paramedics arrived. He was face down near the back door, covered in blood, with a large pool of blood around his head. A garden hoe covered in blood was next to his body. The grandfather’s wallet was near his body and did not contain the money usually kept there.

The defendant denied his involvement in the assault and murder. He gave different explanations for the presence of scratches on his arm. DNA evidence from the scene did not connect him to the crime. The defendant’s mother (who experienced a traumatic brain injury) initially told investigators that the defendant left the home before she was attacked and said the person who attacked her was shorter than the defendant and was wearing a ski mask. She testified differently at trial, stating that it was the defendant who had choked her and that there had been no ski mask.

The trial court instructed the jury on multiple theories of first-degree murder, including the felony-murder rule using the attempted murder of the defendant’s mother as the predicate felony. As to the deadly weapon requirement, the court told the jury that the “State contends and the defendant denies that the defendant used his hands and/or arms, and or a garden hoe as a deadly weapon.” The jury convicted the defendant of first-degree murder based on this theory, and the defendant appealed.

The supreme court relied upon a “virtually uninterrupted line of appellate decisions from this Court and the Court of Appeals interpreting the reference to a ‘deadly weapon’ in N.C.G.S. § 14-17(a) to encompass the use of a defendant’s hands, arms, feet, or other appendages” and the “fact that the General Assembly has not taken any action tending to suggest that N.C.G.S. § 14-17(a) should be interpreted in a manner that differs from the interpretation deemed appropriate in this line of decisions” to establish that the General Assembly intended for the term “deadly weapon” to include a defendant’s hands, arms, feet or other appendages. The court rejected the defendant’s invitation to overrule or limit to child victims its holding in State v. Pierce, 346 N.C. 471 (1997) that the offense of felony child abuse could serve as the predicate felony for felony-murder when the defendant used his hands as a deadly weapon in the course of committing the abuse. The court also rejected the defendant’s invitation to rely on State v. Hinton, 361 N.C. 207 (2007) for the proposition that the term “deadly weapon” has different meanings in different contexts and should have a felony-murder specific definition. The Hinton court held that the reference to “any firearms or other dangerous weapon, implement or means” as used in N.C.G.S. § 14-87(a) (defining robbery with a dangerous weapon) did not encompass the use of a defendant’s hands because the statute was intended to provide a “more severe punishment when the robbery is committed with the ‘use or threatened use of firearms or other dangerous weapons’” than when the defendant committed common law robbery, which did not involve the use of such implements. The court reasoned that the logic in Hinton had no application to its interpretation of the felony-murder statute as nothing in the language or legislative history of G.S. 14-17 suggested that its reference to “deadly weapon” should be defined in a way that differed from the traditional definition, which included a person’s appendages.

Finally, the court rejected the notion that its interpretation meant that every killing perpetrated with the use of a defendant’s hands, arm, legs, or other appendages could constitute felony murder, thus undermining the General Assembly’s attempt to limit the scope of the rule when it revised the statute in 1977. The court noted that the extent to which hands, arms, legs, and other appendages can be deemed deadly weapons depends upon the nature and circumstances of their use, including the extent to which there is a size and strength disparity between the perpetrator and his or her victim. Moreover, something more than a killing with hands, arms, legs, or other bodily appendages must be shown (a felony) to satisfy the rule.

The court then considered whether the trial court’s instructions to the jury that it could find that the defendant attempted to murder his mother using a garden hoe was prejudicial error, concluding that it was as there was a reasonable possibility that the jury would not have convicted the defendant of first-degree murder without the erroneous instruction. The court explained that to conclude otherwise, “[w]e would be required to hold that the State’s evidence that defendant killed his grandfather as part of a continuous transaction in which he also attempted to murder his mother using his hands and arms as a deadly weapon was so sufficiently strong that no reasonable possibility exists under which the jury would have done anything other than convict defendant of first-degree murder on the basis of that legal theory.” The sharply disputed evidence over whether the defendant was the perpetrator, including the lack of physical evidence, the defendant’s trial testimony, and the conflicting nature of the statements made by the defendant’s mother, prevented the court from concluding that the error was harmless. Even more central to the court’s analysis was the dispute over the extent to which the defendant’s hands and arms were a deadly weapon. The court noted that although the size and strength differential between defendant and his mother was sufficient to permit a determination that defendant’s hands and arms constituted a deadly weapon, the differences were not so stark as to preclude a reasonable jury from concluding that defendant’s hands and arms were not a deadly weapon. If the jury had reasonably concluded that the defendant’s hands and arms were not used as a deadly weapon, it could not have convicted the defendant of the first-degree murder of his grandfather on the basis of the felony-murder rule, contrary to the suggestion in the jury instruction. As a result, the Court held that the trial court’s instruction concerning the use of the garden hoe as a deadly weapon during defendant’s alleged attempt to murder his mother was prejudicial error necessitating a new trial for the murder of his grandfather.

Justice Newby, joined by Justice Morgan, concurred in part and dissented in part. He agreed with the majority that the defendant’s hands and arms were deadly weapons, but disagreed that the instruction regarding the garden hoe resulted in prejudicial error.

Justice Earls concurred in the result only in part and dissented in part. She agreed with the majority that the instruction regarding the garden hoe was error warranting a new trial. She dissented from the majority’s conclusion that a jury could properly consider a person’s hands, arms, feet, or other body parts to be deadly weapons for purposes of the felony murder statute, reasoning that the legislative history and spirit of the statute demonstrate that the deadly weapon requirement refers to an external instrument.

On discretionary review of a unanimous decision below, 259 N.C. App. 127 (2018), the court reversed the Court of Appeals and held that appellate counsel was not ineffective for failing to cite a particular line of cases because the facts of this case were distinguishable from those in the line of cases the Court of Appeals would have had appellate counsel cite.  The Court of Appeals had held that appellate counsel was ineffective for failing to make the argument under State v. Pakulski, 319 N.C. 562 (1987) that a trial court commits plain error when it instructs a jury on disjunctive theories of a crime, one of which is erroneous, and it cannot be discerned from the record the theory upon which the jury relied.  Noting that its opinion in Pakulski “lacks clarity” with respect to the standard of review applied there, the court explained that Pakulski applied the harmless error rather than plain error standard, as evidenced by subsequent precedent.  Because the defendant in this case did not object to the trial court’s jury instructions, the court explained that Pakulski “would have had little precedential value in the instant case, and appellate counsel’s failure to cite it was not objectively unreasonable.”  The court went on to explain that the arguments made by appellate counsel were appropriate for plain error review as counsel argued that the jury was presented with multiple theories of guilt, one of which was erroneous, and the error had a probable impact on the jury’s verdict.

Justice Ervin, joined by Justice Newby, concurred, agreeing with the court’s interpretation of Pakulski and its determination that appellate counsel was not ineffective, but writing separately to clarify the general matter that a defendant may be convicted of possession of a firearm by a felon under an acting in concert theory.  Noting that neither the North Carolina Supreme Court nor the Court of Appeals has ever directly held that a defendant can be convicted of that offense on the basis of an acting in concert theory, Justice Ervin described the “general availability of the acting in concert doctrine in possession-related cases” and stated that he was not persuaded that the theory is inapplicable to the offense of possession of a firearm by a felon.

Justice Earls, joined by Justice Davis, dissented, expressing the view that the majority opinion’s explanations of Pakulski and appellate counsel’s arguments were inaccurate.  In Justice Earls’ view, Pakulski applied the plain error standard of review and appellate counsel did not meet the obligation to argue to the Court of Appeals that the defendant could not be convicted of possession of a firearm by a felon based on someone else’s possession.

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.

State v. Malachi, 371 N.C. 719 (Dec. 7, 2018)

On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 799 S.E.2d 645 (2017), in this felon in possession of a firearm case, the court reversed, holding that though the trial court erred in its jury instructions with respect to possession of a firearm, the error did not require a new trial. At trial, the defendant objected to any reference in the jury instructions to constructive possession, arguing that the facts showed only actual possession. The trial court overruled the defendant’s objection and instructed that possession could be either actual or constructive. During deliberations, the jury requested “a legal definition of possession of a firearm,” and the court re-instructed the jury consistent with its prior instructions. The defendant was convicted and he appealed. The Court of Appeals awarded the defendant a new trial, finding that the evidence supported an instruction only for actual possession and that the trial court erred by instructing on constructive possession. That court reasoned that inclusion of a jury instruction unsupported by the evidence is reversible error. The State sought discretionary review and the Supreme Court reversed.

          The Supreme Court began by noting that it has treated actual and constructive possession as alternative means of showing possession of an item necessary for guilt. Thus, the Court of Appeals correctly determined that the trial court erred by allowing the jury to potentially convict the defendant of possession of a firearm by a felon on the basis of constructive possession where no evidence supported that theory.

          Turning to whether that error required a new trial, the court held that it did not. Concluding that its “existing jurisprudence does not conclusively establish that existing North Carolina law encompasses an automatic reversal rule” in these circumstances, it turned to a determination of whether it should adopt such a rule. It declined to do so, holding that the defendant’s challenge to an unsupported constructive possession instruction is subject to traditional harmless error analysis. The court went on to note that as a general matter, a defendant seeking to obtain appellate relief on the basis of an error to which there was an objection at trial must establish that there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. It noted however that cases involving submission of erroneous jury instructions are “exceedingly serious and merit close scrutiny to ensure that there is no ‘reasonable possibility’ that the jury convicted the defendant on the basis of such an unsupported legal theory.” However, if the State presents exceedingly strong evidence of guilt on the basis of a theory and that evidence is neither in dispute nor subject to serious credibility-related questions, “it is unlikely that a reasonable jury would elect to convict the defendant on the basis of an unsupported legal theory.” Turning to the case at hand, it noted that the undisputed evidence showed that officers went to a location after receiving report that an individual possessed a firearm. They discovered the weapon while searching the defendant, who matched the description that had been provided. On these facts the defendant failed to establish that there is a reasonable possibility that, in the absence of the erroneous instruction, the jury would have acquitted. Justice Morgan dissented.

In this capital case the court rejected the defendant’s argument that the trial court erred in the guilt phase by instructing the jury that it could find the defendant guilty of sexual offense if it found either vaginal or anal penetration where the State failed to present any evidence of anal penetration and it cannot be discerned from the record upon which theory or theories the jury relied in arriving at its verdict. The court also rejected the defendant’s related argument that the trial court erred in the sentencing phase by instructing the jury that it could find the (e)(5) aggravating circumstances that the capital felony was committed while the defendant was engaged in the commission of, or flight after committing, the act of sexual offense with a child. Noting that the trial judge should never give instructions to a jury which are not based upon facts presented by some reasonable view of the evidence, the court found that here there was sufficient evidence of anal penetration.

The defendant was tried in Guilford County on charges of discharging a weapon into occupied property, firearm by felon, first-degree burglary, trafficking cocaine, possession with intent, and two counts of habitual felon. At the charge conference, the defendant requested an instruction on misdemeanor breaking or entering, which the trial judge agreed to give. The defendant objected to jury instructions on actual and constructive possession for the drug offenses, but the trial court overruled the objection and instructed the jury on both theories of possession. The jury convicted on all counts and the defendant appealed.

(1) In its instruction to the jury on misdemeanor breaking or entering, the trial court deviated from the language of the pattern instruction. While the pattern instruction states the offense need not require felonious intent “so long as the breaking or entering was wrongful, that is, without any claim of right,” the trial court instructed the jury that the defendant could be found guilty of the crime if they believe he lacked felonious intent but acted “without consent of the owner or tenant.” Slip op. at 11-12. This “minor deviation” from the pattern instruction did not amount to error, as the instruction was supported by the evidence and “correct in law.” Id. at 13. Even assuming error, the defendant could not show prejudice—he did not make any claim of right to enter the property and the jury convicted on first-degree burglary in any event.

(2) As to the jury instructions on actual and constructive possession, it was error to instruct the jury on actual possession where no evidence supported that theory. However, the defendant again could not demonstrate prejudice. The evidence of defendant’s constructive possession of the drugs was “exceedingly strong,” and this defeated any claim of prejudice.

(3) At the initial sentencing hearing, the trial court failed to impose a sentence for one of the two habitual felon convictions. The next day, the trial court realized its error and imposed the second habitual sentence. The defendant gave notice of appeal following the first hearing and contended the trial court lacked jurisdiction to sentence the defendant at the second hearing. The trial court normally loses jurisdiction to act once notice of appeal has been given. However, G.S. 15A-1448(a)(3) authorizes the trial court to act to correct a sentencing error within 14 days of the original sentence, even if the defendant has given notice of appeal and even without a motion for appropriate relief. See State v. Lebeau, ___ N.C. App. ___, 843 S.E.2d 317 (April 21, 2020). The trial court was required to sentence the defendant as a habitual felon once the verdict was returned and doing so was not a substantive amendment of the sentence but merely a “statutorily ‘necessary by-product’ of the sentence.” McMillan Slip op. at 20. The trial court therefore retained jurisdiction to correct the sentence, and the convictions were unanimously affirmed.

Two men (“Stroud” and “Bernard”) hosted two young women  (“Jermisha” and “Kendretta”) at Stroud’s home on two occasions. During the second visit, Kendretta experienced a “spell” where she fell down and started kicking, apparently as a result of consuming alcohol and synthetic weed. About an hour after Kendretta recovered and left, the defendant showed up at Stroud’s house in a car, accompanied by at least two other individuals. The defendant identified himself as “KP” and confronted Stroud on the front porch, where he accused him of trying to take sexual advantage of Kendretta. The defendant stated he was here to kill Stroud and pulled out a gun. Stroud initially struggled with the defendant, but once the defendant drew and aimed his gun, Stroud fled inside. The defendant fired multiple shots into Stroud’s home and then drove away. Stroud’s niece was able to identify “KP” as the defendant, and she later spoke to the defendant about what happened and he admitted shooting into the house. The defendant was indicted, tried, and convicted on charges of discharging a firearm into an occupied dwelling and possession of a firearm by a convicted felon.

On appeal, the defendant argued that the trial court erred by instructing the jury on the theory of acting in concert (over the defendant’s objection and a request for a special verdict form) because that theory was not supported by the evidence and including it in the instructions was prejudicial. Pursuant to State v. Malachi, 371 N.C. 719 (2018), even if the jury was instructed on an unsupported legal theory, the appellate court must engage in a two-part inquiry to determine prejudice: “first we ask whether the State presented ‘exceedingly strong evidence of defendant’s guilt on the basis of a theory that has sufficient support’ from the evidence presented; and, second, we must ensure that ‘the State’s evidence is neither in dispute nor subject to serious credibility-related questions[.]’ […] If we are satisfied that those conditions have been met, we must conclude ‘it is unlikely that a reasonable jury would elect to convict the defendant on the basis of an unsupported legal theory.’” Reviewing the evidence in the case, the court found that both parts of the inquiry were satisfied by the state’s evidence. First, the eyewitness testimony, along with physical evidence such as a bullet recovered from inside the home, provided exceedingly strong evidence that the defendant did discharge a firearm into an occupied dwelling. Second, minor discrepancies in the trial testimony such as what type of car the defendant drove to Stroud’s house did not rise to the level of presenting a material dispute in the evidence, nor were there “serious credibility-related questions” with the evidence. The court acknowledged that Stroud’s niece, a key witness for the state, was cross-examined about her potential bias against the defendant, but “she answered the questions about her alleged bias head-on and flatly denied having any bias against Defendant, going as far as to say she cares for him and his family. We find this testimony remediates the seriousness of any credibility-related questions.” Therefore, even assuming arguendo that it was error to instruct the jury on acting in concert in this case, the state presented “exceedingly strong evidence of Defendant’s guilt that was neither in dispute nor subject to serious credibility-related questions,” so the error was not prejudicial.

In this embezzlement case, the trial court did not commit plain error with respect to the jury instructions. The defendant argued that the trial court committed plain error by instructing the jury on an alternative theory of guilt not supported by the evidence; specifically, by including as an element of embezzlement that she “did take and make away with” money entrusted to her. She conceded however that the jury was correctly instructed on the law during the trial court’s summation of the elements of embezzlement. Nevertheless the defendant argued she was deprived of a right to a unanimous jury because of the trial court’s error. No plain error occurred where the evidence that the defendant misapplied money entrusted to her in a fiduciary capacity was overwhelming and it cannot reasonably be argued that the jury would have returned a different verdict but for the trial court’s error in instructing on the alternate theory.

State v. Gentle [Duplicated], ___ N.C. App. ___, 817 S.E.2d 833 (July 3, 2018) aff’d per curiam, ___ N.C. ___, 822 S.E.2d 616 (Feb 1 2019)

In this rape and sex offense case, the court rejected the defendant’s argument that the trial court committed plain error by instructing the jury that it could find that the victim suffered serious personal injury in the form of mental injury; even if error occurred, it had no probable impact on the verdict. The defendant argued that the jury instruction was improper because the State presented no evidence of mental injury. The court noted that for several decades the appellate courts had held that it was per se error for the trial court to instruct the jury on a theory that was not supported by the evidence. However, in State v. Boyd, 366 N.C. 548 (2013) (per curiam), the Supreme Court shifted away from the per se rule. Now, a reviewing court must determine whether such an instruction constituted reversible error, without being required to assume that the jury relied on the inappropriate theory. Under North Carolina law, evidence of bodily or mental injuries can constitute serious personal injury for the purposes of forcible rape and forcible sex offense. Here, there was substantial evidence that the defendant inflicted bodily harm on the victim, who was seven months pregnant. The victim struggled to protect her stomach while the defendant forcibly dragged her down 33 concrete stairs and into nearby woods. She sustained extensive bruises and abrasions to most of the left side of her body, including her leg, abdomen, back, side, arm, and shoulder. Although some of the wounds were superficial, others were more significant abrasions. A nurse who testified at trial compared her injuries to “road rash” that a person might suffer after falling off a motorcycle traveling at 55 mph. The victim testified that her injuries were painful and she still bore extensive scars at trial. The court concluded that even assuming arguendo that there was no evidence to support the trial court’s instruction on mental injury, the defendant failed to meet his burden of showing that the alleged error had any probable impact on the jury’s verdict.

(1) The trial court committed plain error with respect to its jury instructions on obtaining property by false pretenses; the instructions allowed the jury to convict the defendant of a theory not alleged in the indictment. The indictment alleged that the false pretense at issue was the filing a fire loss claim under the defendant’s homeowner insurance policy, when in fact the defendant had intentionally burned her own residence. In its instructions to the jury, the trial court did not specify the false pretense at issue. Although the State’s evidence supported the allegation in the indictment, it also supported other misrepresentations made by the defendant in connection with her insurance claim. The court concluded: “Where there is evidence of various misrepresentations which the jury could have considered in reaching a verdict for obtaining property by false pretense, we hold the trial court erred by not mentioning the misrepresentation specified in the indictment in the jury instructions.”

(2) The trial court committed plain error with respect to its jury instructions for insurance fraud. The indictment for insurance fraud alleged that the defendant falsely denied setting fire to her residence. The trial court’s instructions to the jury did not specify the falsity at issue. Following the same analysis applied with respect to the false pretenses charge, the court held that because the trial court’s instructions allowed the jury to convict the defendant of insurance fraud on a theory not alleged in the indictment, the instructions constituted plain error.

In this kidnapping case, although the trial court erred by instructing the jury on theories that were not alleged in the indictment, no plain error occurred. After rejecting the State’s argument that the defendant was precluded from plain error review, the court noted that the instruction error pertained to the elements that elevate a kidnapping to first-degree: failure to release in a safe place; serious injury to the victim; or sexual assault of the victim. Here, although the indictment charged only the element of sexual assault, the trial court instructed the jury that it could find the defendant guilty based on failure to release in a safe place, sexual assault or serious injury to the victim. Thus, the jury was instructed on elements not charged in the indictment, and this was error. However, the jury was given a special verdict sheet that separately listed all of the elevating elements, and the jury found the defendant guilty based on each individual elevating element. Because the State presented compelling evidence to support the elevating element of failure to release in a safe place (among other things, the defendant left the victim alone at the bottom of a rocky creek embankment under a bridge near a deserted stretch of road) and because the jury separately found the defendant guilty of first-degree kidnapping based on all of the elevating elements, no plain error occurred.

No plain error occurred in this drug case where the trial court instructed the jury that it could convict the defendant if it found that he was in actual or constructive possession of the contraband. Although there was no evidence that the defendant actually possessed the contraband, no plain error occurred where there was substantial evidence that the defendant constructively possessed the items and where the defense at trial was that the defendant’s sister-in-law planted the drugs and that his brother-in-law was storing weapons in his house. 

(1) In this habitual misdemeanor larceny case, the court rejected the defendant’s argument that the trial court created a fatal variance when it instructed the jury on a theory of acting in concert not alleged in the indictment. Citing prior case law, the court held that the theory of acting in concert need not be alleged in the indictment. (2) The court rejected the defendant’s argument that a fatal variance existed between the indictment, the jury instructions, and the verdict sheets because each held him accountable for stealing a different number of items. Neither the jury instructions nor the verdict sheet were required to specify the number of items stolen.

In this child sex case, no prejudicial error occurred when the trial court instructed the jury on a sexual act that was not supported by the evidence. The defendant was convicted of four felonies under G.S. 14-27.4(a)(1) (first degree sexual offense with a child) and two felonies under G.S. 14-27.7(a) (sex offense in a parental role). Both statutes require that the defendant engage in a “sexual act” with the victim. The term sexual act is defined as cunnilingus, fellatio, analingus, or anal intercourse. The evidence at trial showed that the defendant engaged in fellatio and anal intercourse with victim. There was however no evidence that the defendant engaged in analingus with the victim. However, the trial court instructed the jury that it could find the defendant guilty of the six felonies if it found that he committed fellatio, anal intercourse, or analingus with the victim. The court noted that it cannot be discerned from the verdict sheets which theory the jury relied upon to find the defendant guilty. In its first opinion in the case, the court held that the trial court’s inclusion of analingus, where no evidence of that act was offered at trial, constituted plain error per se. The Supreme Court however remanded, instructing the court to revisit its holding in light of State v. Boyd, 366 N.C. 548 (2013). In Boyd, the trial court instructed the jury that it could convict the defendant of kidnapping based on three alternative theories: confinement, restraint, or removal. On appeal to the court of appeals, two members of the panel held that the instruction constituted plain error because there was no evidence that the defendant had removed the victim. A dissenting judge agreed with the majority that the trial court erred by instructing on the theory of removal but disagreed that the error rose to the level of plain error. The dissenting judge did not assume that the jury relied on the theory of removal to support the kidnapping conviction; rather, she cited the overwhelming evidence supporting the other kidnapping theories, confinement and restraint, to conclude that the defendant failed to show that absent the error the jury would have returned a different verdict. The Supreme Court reversed the court of appeals in Boyd, adopting the dissenting opinion from the intermediate appellate court. In this second appeal, the court noted that the Supreme Court’s approach in Boyd represented a shift away from the per se rule that had been previously applied in cases involving disjunctive instructions where one of the theories was not supported by the evidence. Turning to the case at hand, the court concluded that the defendant failed to meet his burden of showing that the trial court’s inclusion of analingus in the jury instruction had any probable impact on the verdict. It noted that the victim was clear in her testimony regarding the occasions where fellatio and anal intercourse had occurred. 

In this armed robbery case, the trial court did not err by failing to designate in its jury instruction the two individuals named in the indictment as the alleged victims.  The defendant was indicted for armed robbery of two boys, Elijah and Shalik, who were specifically identified as victims in the indictment.  The jury heard evidence that on the evening of the crime the defendant obtained the shotgun he used when robbing Elijah and Shalik by taking it without authorization from a vehicle occupied by two men, Desean and Tevin, and that he had threatened them with the shotgun after taking it.  The jury also heard evidence that prior to taking the shotgun the defendant had attempted to rob a woman, Yvette, using a handgun. 

The trial court instructed the jury using NCPJI CRIM 217.20, applicable to armed robberies involving a firearm, but, in a departure from the indictment, did not designate the victims Elijah and Shalik.  Because the evidence before the jury did not support a conviction for robbery with a firearm of Desean, Tevin, or Yvette, the court rejected the defendant’s argument that the trial court’s instruction left the jury free to convict him based on the uncharged offenses involving those people.  The court noted, however, that the better practice is to designate the victim in jury instructions for robbery with a firearm.

The defendant was charged with assault with a deadly weapon inflicting serious injury for his role in an assault that occurred inside a jail. The defendant and two other inmates assaulted the victim by punching, kicking, and hitting him with a broom. As a result of the assault, the victim suffered a bloody nose, bruises and red marks, and multiple fractures around his nose and eye. During the charge conference at the defendant’s trial, the court agreed to submit the lesser-included offenses of assault inflicting serious injury and simple assault, but did not submit the lesser-included offense of assault with a deadly weapon, despite the defendant’s request. The jury convicted the defendant of the charged offense, and the defendant appealed.

The appellate court agreed with the defendant that it was error not to submit the lesser-included offense of assault with a deadly weapon, and reversed his conviction and remanded for a new trial. The decision to submit a lesser-included offense is reviewed de novo, and the offense should be submitted to the jury if there is evidence in the record, when viewed in the light most favorable to the defendant, from which a rational juror could convict of the lesser charge. In this case, there was evidence from which a rational juror could have concluded that the victim did not suffer serious injury. The victim’s medical treatment was relatively brief, and the trial testimony indicated that the victim’s facial fractures were less serious and less painful than a broken arm, an injury which past cases have held warranted submitting the lesser offense to the jury.

 The defendant also challenged the imposition of a civil judgment for attorney fees without providing notice and an opportunity to be heard. Since the underlying conviction was reversed and remanded, the appellate court vacated the civil judgment as well.

The trial court did not err by denying the defendant’s motion to dismiss a charge of second-degree kidnapping and did not commit plain error by failing to instruct the jury on the confinement theory of kidnapping alleged in the indictment.  The second-degree kidnapping indictment alleged that the defendant unlawfully confined the victim without consent and for the purpose of facilitating felony armed robbery.  In moving to dismiss the kidnapping charge, the defendant argued that the victim was not restrained to a degree over that inherent in the underlying robbery, which involved the defendant entering the victim’s bedroom while brandishing a gun and motioning for the victim to move from that room to another and ordering the victim to lie on the ground upon moving rooms.  Noting the State’s acknowledgement that the question of whether confinement or restraint is of a degree beyond that inherent in robbery such that a kidnapping conviction also is proper involves “a very tangled area of the law,” the court reviewed relevant precedent on its way to determining that there was no error in the defendant’s kidnapping conviction.  The court explained that the movement of the victim from his bedroom to the other room was not essential to complete the robbery, that the victim was held in the other room for some time, and was exposed to greater danger by being moved and held at gunpoint.

In response to the defendant’s argument that the trial court plainly erred by instructing the jury on kidnapping by restraint or removal but not confinement despite the indictment alleging kidnapping based solely on confinement, the court conducted a “highly fact sensitive” analysis and concluded that the defendant failed to show a possibility that a reasonable jury would have found that the victim in this case was removed or retrained but was not confined. 

Judge Murphy concurred in result only, expressing the view that the majority improperly equated removal and confinement when analyzing the defendant’s motion to dismiss the kidnapping charge.  Judge Murphy also expressed the view that the trial court erred in its jury instruction on kidnapping because the instruction did not track the indictment, but found that the error did not rise to the level of plain error.

The defendant was convicted of two counts of sexual offense with a child by an adult, rape of a child, first-degree kidnapping, and two counts of taking indecent liberties with a child in Wake County, stemming from the assault of a six-year-old child at a church.

(1) In regard to one of the indecent liberties convictions, the defendant argued that the State did not present sufficient evidence that the defendant acted inappropriately when touching the victim’s chest and that such evidence was only offered for corroborative purposes. The victim’s testimony discussing the touching of her chest was only presented by way of her videotaped forensic interview and was not raised in the victim’s trial testimony. The Court of Appeals disagreed, finding that the videotaped forensic interview of the victim “was properly admitted under Rule 803(4) as her statements were made for the purposes of medical diagnosis or treatment, and the statements were reasonably pertinent to diagnosis or treatment.” Slip op. at 8. Additionally, the trial court instructed the jury to consider the video as substantive evidence. The Court of Appeals therefore determined that “[t]he evidence was sufficient to support denial of the motion to dismiss the challenged charge of taking indecent liberties with a child.” Id.

The defendant also argued that there was insufficient evidence to support a finding that the defendant forcibly removed the victim to facilitate the offense, an essential element of the crime of kidnapping. Specifically, the defendant argues the evidence does not show that he used actual force, fraud, or trickery to remove the victim. The Court of Appeals rejected this argument as well, finding that the defendant’s act of taking the victim to a secluded place to continue the sexual assault was sufficient to support removal for purposes of kidnapping.

(2) Concerning the defendant’s convictions of first-degree kidnapping and sexual offense with a child, the defendant argued “that the trial court erred by instructing on first-degree kidnapping and by failing to instruct on sexual offense with a child by an adult.” Id. at 10. The Court of Appeals found no prejudicial error in the instruction given on first-degree kidnapping because “[t]he evidence at trial was consistent with the allegations in the indictment,” even though the language of the jury instruction varied from the indictment. Id. at 11. The kidnapping indictment stated that “[D]efendant also sexually assaulted [Maya]” while the jury was instructed “that the person was not released by the defendant in a safe place.” Id. at 11-12. The Court of Appeals noted that such variance is usually prejudicial error but determined that the evidence here supported both the theory of the indictment and that of the jury instructions. On plain error review, the court rejected the defendant’s argument and concluded “it is not probable that the jury would have reached a different result if given the correct instruction.” Id. at 12.

The defendant also argued that the trial court erred by entering judgment on sexual offense with a child by an adult after instructing the jury on first-degree sex offense, a lesser offense. The Court of Appeals agreed. Because “[t]he jury instruction clearly outlined the lesser included offense of first-degree sexual offense . . . it was improper for the trial court to enter judgment for two counts of sexual offense with a child.” Id. at 17. The trial court did not instruct on the essential element of age as to the sexual offense with a child by an adult charge. The defendant was therefore impermissibly sentenced beyond the presumptive range for the lesser included offense of conviction. The Court of Appeals determined this was prejudicial error and vacated the defendant’s conviction of sexual offense with a child by an adult, remanding for resentencing on the first-degree sexual offense charge.

(3) The defendant argued that the trial court erred in certain evidentiary rulings. First, the defendant alleged that expert testimony regarding the DNA profile from the victim’s underwear (matching to the defendant) should not have been admitted because there was an insufficient foundation to satisfy the requirements of Rule 702(a)(3) of the North Carolina Rules of Evidence. The Court of Appeals disagreed, finding that the witness was “a qualified expert in the field of forensics and an employee at the North Carolina State Crime Lab, [who] testified to her qualifications in the area of DNA analysis as well as her training and experience in gathering evidence for DNA profiles.” Slip op. at 19. Further, the Court explained:

[The witness] thoroughly explained the methods and procedures of performing autosomal testing and analyzed defendant’s DNA sample following those procedures. That particular method of testing has been accepted as valid within the scientific community and is a standard practice within the state crime lab. Thus, her testimony was sufficient to satisfy Rule 702(a)(3). Id. at 21.

The defendant also argued that it was plain error to allow prior bad acts evidence under Rule 404(b) of the North Carolina Rules of Evidence, claiming that the prior incident was unrelated to the current offense. The Court of Appeals determined that the trial court did not err because the facts in both cases were similar enough to be admitted for 404(b) purposes. The trial court’s findings that “both females were strangers to defendant; they were separated from a group and taken to a more secluded location; they were touched improperly beginning with the buttocks; and they were told to be quiet during the assault,” supported the admission of this evidence under Rule 404(b). Id. at 23.

(4) Finally, the defendant argued that the trial court erred by allowing cross-examination of his father and contends the State elicited irrelevant testimony from his father. Specifically, the defendant objected to the admission of questions and testimony about whether the defendant’s father warned members of the church about the defendant’s potential dangerousness. The Court of Appeals rejected this argument and determined “the questions on cross-examination elicited relevant testimony and were well within the scope of defendant’s father’s direct testimony that defendant needed frequent supervision for basic activities.” Id. at 27-28.

Judge Murphy authored a separate opinion concurring in part, concurring in result only in part, and dissenting in part. Concerning the sexual offense jury instruction, Judge Murphy believed “the trial court erred in instructing the jury, however, since the jury found beyond a reasonable doubt Defendant was at least 18 years old in another portion of its verdict and all the charges against Defendant occurred on the same date, there was no plain error.” Slip op. at 5 (Murphy, J., dissenting). Judge Murphy also pointed out that “[h]ad the jury been correctly instructed on the first-degree kidnapping indictment language and found Defendant guilty of first-degree kidnapping based on sexual assault the trial court could not have sentenced Defendant for all the sexual offenses and the first-degree kidnapping offense without violating double jeopardy.” Id. at 13. Following the guidance of State v. Stinson, 127 N.C. App. 252, Judge Murphy believed that the court should have arrested judgment on the first-degree kidnapping conviction and remanded for resentencing on second-degree kidnapping to avoid double jeopardy issues. Lastly, Judge Murphy did not believe the defendant preserved the issue of his father’s testimony for review and would have refused to consider that argument.

The defendant, a fisherman, was charged with violating marine fisheries regulations after he left gill nets and crab pots unattended for too long. The officer that cited Defendant for these violations used a form citation indicating that the Defendant was being charged with committing these regulatory violations “unlawfully and willfully.” The defendant was convicted by a jury of the unattended gill net offense in superior court. (1) On appeal, the defendant argued that the trial court committed plain error by failing to instruct the jury that the State must prove that his violation was willful, contending that the offense was not a strict liability offense. The Court of Appeals disagreed, concluding that G.S. 113-135(a), the statute that criminalizes the conduct at issue, did not establish a mens rea for the offense. The Court rejected the defendant’s argument that the General Assembly did not authorize the creation of strict liability regulatory offenses. In light of the language of the statutes governing these “public welfare” offenses, their relatively minor punishment, and the logistical difficulty of investigating the willfulness of every such violation, the Court held that they are strict liability offenses that do not require the State to prove intent. (2) The Court also held that the trial court did not err in failing to instruct the jury on willfulness, despite the language in the charging instrument alleging that the defendant acted “willfully.” That language went beyond the elements of the offense and was properly disregarded as surplusage.

The defendant was convicted at trial of impersonating an officer and possession of a weapon of mass destruction (flashbang grenades) in Onslow County. On appeal, the Court of Appeals determined that flashbang grenades did not qualify as a weapon of mass destruction and vacated that conviction. The N.C. Supreme Court reversed on that point and remanded for the Court of Appeals to consider the defendant’s other arguments. The defendant filed a new brief with the court, arguing the trial court erred by failing to instruct the jury about the exception for lawful possession of weapons of mass destruction. See G.S. § 14-288.8(b)(3). The defendant contended that he presented evidence that he qualified for the exception as a person “under contract with the United States” and it was error to fail to instruct the jury on the exception. While the defendant challenged jury instructions in his original brief to the Court of Appeals, he did not raise this issue. He therefore asked the court to invoke Rule 2 of the Rules of Appellate Procedure to review this argument, and the court granted that request.

At trial, the defendant presented evidence that he was an active-duty U.S. Marine serving as a weapons technician, and that he came into possession of the grenades as part of his duties in that capacity. The State did not contest this evidence at trial, but argued on appeal that the defendant failed to promptly return the weapons to the Marine Corps and that the defendant was “on a detour” (and not acting in his capacity as a solider) at the time of the offense. “Even if the State’s argument is true, this would not overcome Defendant’s properly admitted testimony and his right for the jury to resolve this issue.” Carey Slip op. at 8. The trial court had a duty to instruct the jury on all substantial features of the case, including the defense of lawful possession raised by the defendant’s evidence, and its failure to do so was plain error. The judgment of conviction for possession of a weapon of mass destruction was therefore vacated and the matter remanded for a new trial on that offense.

Judge Young dissented. According to his opinion, the N.C. Supreme Court’s decision remanding the case was limited to “the defendant’s remaining challenges” – those that were raised but not decided in the defendant’s original appeal to the Court of Appeals. The mandate therefore did not include new arguments that had not previously been raised at all, and Judge Young would not have considered the lawful possession argument.

In this Cabarrus County case, the defendant was convicted of first-degree kidnapping and second-degree rape. After developing a friendship with the victim, he drugged her without her knowledge, took her to a friend’s house and raped her. The defendant appealed, raising numerous challenges.

(1) The defendant argued there was insufficient evidence to support his convictions and that his motion to dismiss should have been granted. He did not raise an argument about the rape conviction on appeal. Any argument as to the sufficiency of evidence for that offense was therefore deemed abandoned and waived. As to the kidnapping conviction, the defendant argued he could not be sentenced for both kidnapping and the rape as a matter of double jeopardy, since the rape was used to elevate the kidnapping to first degree. “The proper remedy in the event of conviction of first-degree kidnapping and the sexual assault that constitutes an element of first-degree kidnapping is to arrest judgement on the first-degree kidnapping and resentence the defendant for second-degree kidnapping.” Slip op. at 10-11 (citation omitted). While the defendant correctly noted this rule, the court found it inapplicable to the defendant’s case. The State’s evidence showed at least two distinct sexual assaults. In addition to the rape, the defendant also committed a separate sexual battery, and that offense was used to elevate the kidnapping offense to first-degree (and not the rape). Following the sexual battery in one room, the defendant moved the victim to another room to commit the rape. This showed separate and distinct offenses. The trial court also correctly instructed the jury on these principles and its instructions required the jury to find a separate and distinct sexual battery in support of the first-degree kidnapping. Because the defendant was not convicted of the underlying sexual battery used to support the first-degree kidnapping, double jeopardy did not preclude separate punishments for the distinct rape and kidnapping.

(2) The was also sufficient evidence to support the aggravating factor that the defendant took advantage of a position of trust to accomplish the crimes. The Court of Appeals noted it “has upheld a finding of the ‘trust or confidence’ factor in very limited factual circumstances.” Id. at 18 (citation omitted). Here, the State presented sufficient evidence of the factor in aggravation. The defendant was a family friend and was close with the victim. Evidence showed the defendant gave the victim’s family Christmas gifts, checked on family members, frequently spent time with the victim and advised her on various matters, among other connections. This was sufficient to demonstrate a position of trust over the victim which the defendant exploited in order to commit the crimes.

(3) The two sisters of the victim testified to prior instances of sexual assault by the defendant towards each of them. The trial court admitted this evidence pursuant to Rule 404(b) of the Rules of Evidence as proof of a common plan or scheme by the defendant. The defendant raped one of the sisters in a nearly identical manner as the victim and committed sexual battery upon the other sister “in a manner indicating an intent to go further.” Id. at 21. Like with the victim, the defendant developed a position of trust with each of the sisters before committing sexual assaults on them. The trial court therefore correctly determined the prior bad acts were substantially similar to the circumstances of the current offense. The assaults occurred 10 and 8 years before the events of the current case. The court agreed with the trial judge that this evidence was not too remote in time to satisfy the requirements of Rule 404(b):

Our Supreme Court has held that ‘[w]hen similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan’ rendering the prior bad acts ‘not too remote to be considered as evidence of defendant’s common scheme to abuse the victim sexually.’ Id. at 22 (citation omitted) (emphasis in original).

 The evidence showed the defendant’s acts were continuous over the course of time and therefore not too remote in time to be admitted under Rule 404(b). The trial court also conducted the necessary balancing under Rule 403 of the Rules of Evidence to determine the testimony was not more prejudicial than probative and instructed the jury about the limited purpose of the evidence. The admission of this evidence was therefore not error or an abuse of discretion.

(4) The defendant argued that the admission of toxicology results by way of a substitute analyst violated his Sixth Amendment rights to confrontation. The court disagreed, noting the rule on substitute analyst testimony:

[A]n expert witness may testify as to the testing or analysis conducted by another expert if: (i) that information is reasonably relied on by experts in the field in forming their opinions; and (ii) the testifying expert witness independently reviewed the information and reached his or her own conclusion in this case. Id. at 26 (citation omitted).

The evidence showed that the substitute analyst reviewed the results of the testing done by the non-testifying analysts and formed his own opinion about the results. “Thus, [the analyst’s] opinion was based on his own analysis and not merely surrogate testimony for an otherwise inadmissible lab report . . .” Id. at 31. Under these circumstances, the defendant was not entitled to cross-examine the analysts who actually performed the testing. According to the court, "when an expert gives an opinion, the opinion is the substantive evidence, and the expert is the witness whom the defendant has the right to confront.” Id. Because the expert opinion was properly admitted and the defendant was able to cross-examine that expert, there was no violation of the defendant’s confrontation rights.

(5a) The indictment for second-degree rape identified the victim only by reference to her initials, and the defendant argued this constituted a fatal indictment defect for failure to identify the victim.  He pointed to a recent case holding that “Victim #1” was insufficient to identify the victim. State v. McKoy, 196 N.C. App. 650, 654 (2009), foreclosed this argument. Citing from that case, the court observed: 

[W]here the statutes defining second-degree rape and second-degree sexual offense require the offenses to be against ‘another person,’ the indictments charging these offenses do not need to state the victim’s full name, nor do they need to add periods after each letter in initials in order to accomplish the common sense understanding that initials represent a person. Id.

Unlike the situation where the indictment names only a “victim,” the use of initials sufficed to identify the victim and did not constitute a fatal defect. [Jeff Welty blogged about the use of initials in charging documents here.]

(5b) The first-degree kidnapping indictment was also not defective. The defendant claimed a fatal flaw based on the indictment’s failure to identify the specific crime constituting the sexual assault for purposes of first-degree kidnapping. There is no requirement that an indictment for first-degree kidnapping identify the felony used to enhance the offense to first-degree. The indictment was otherwise sufficient to put the defendant on notice and was valid in all respects. 

(6) The trial court’s instructions to the jury on the existence of the aggravating factor violated G.S. § 15A-1340.16(d). That statute provides in pertinent part that evidence used at trial to support the existence of an element of the offense may not thereafter be used to prove a factor in aggravation. The jury instructions permitted the jury to consider “all of the evidence,” rather than limiting its consideration to evidence not used to support the intent requirements for the two crimes. The defendant did not object to the instructions at the time and alleged plain error on appeal. Plain error requires that the defendant demonstrate “a reasonable possibility that, had the instruction been given, the jury would have failed to find the existence of the aggravating factor.” Id. at 36. The court noted that occupying a position of trust is not an element of either of the crimes at issue and rejected the contention that the same evidence was used to prove both the intent to commit the crimes and the aggravating factor. The defendant could not demonstrate the possibility of a different result absent the instructions on the aggravating factor, and accordingly could not demonstrate prejudice for plain error.

(7) The defendant’s argument that his objections to an order requiring him to enroll in satellite-based monitoring (“SBM”) were improperly overruled were abandoned on appeal, because the defendant failed to raise any argument for this issue.

A majority of the court determined there were no reversible error in the trial and the convictions were affirmed.

Judge Murphy dissented in part. He wrote separately to note his disagreement with the majority’s analysis of the Confrontation Clause issue. Judge Murphy would have granted a new trial based on the Sixth Amendment violation and would have held the plain error jury instruction issue in (5) above, as well as the SBM issue in (6), were therefore moot. He otherwise concurred in the majority’s judgment.

In this Lincoln County case, the defendant stole a car left running outside of a gas station. A three-year old child was in the backseat. Once officers attempted to stop the car, the defendant led police on a high-speed chase and ultimately crashed. The child was not harmed. During the chase, the defendant called 911 and attempted to bargain for the child’s release. He was charged with first-degree kidnapping, abduction of a child, larceny of a motor vehicle, possession of stolen property, and habitual felon. The jury convicted on all counts. The defendant did not appeal, but later filed a petition for writ of certiorari seeking review of his convictions, which was granted.

(1) The child abduction statute includes language that the offense must occur “without legal justification or excuse.” See G.S. § 14-41(a). The defendant contended that this language required the State to prove that the defendant acted willfully, and that the failure to instruct the jury on mens rea improperly treated the crime as a strict liability offense. The Court of Appeals disagreed. There is no requirement of “willfulness” in the language of the statute. While the offense is not a strict liability crime, it is also not a specific intent crime as defendant argued. Rather, the offense is a general intent crime, requiring a showing only that the defendant acted “knowingly.” The “without justification or excuse” language in the statute allows the defendant to argue defenses like mistake of fact, necessity, or others, but does not create a specific intent requirement. This argument was therefore rejected. 

(2) There was sufficient evidence to support the conviction for child abduction. The evidence showed that the defendant continued driving the car at high speeds while fleeing police, even after realizing that a child was in the backseat. After the point at which the defendant called 911 and acknowledged the presence of the child in the car, he continued to disobey police and dispatch commands to stop and continued fleeing for at least 15 minutes. Though “[a] defendant may exculpate a mistake though subsequent conduct,” the defendant here made no such showing. Slip op. at 10.

(3) There was no error, much less plain error, in the trial court’s failure to instruct the jury that the defendant must have acted willfully in abducting the child, for the same reasons that the statute does not create a specific intent crime. There was therefore no error in the trial court’s instructions to the jury for that offense.

(4) During a pretrial conference, the parties agreed that the jury would be instructed only on removal as the State’s theory for first-degree kidnapping, which was the theory alleged in the indictment. At charge conference, the State requested and received jury instructions on all three possible theories (restraint, removal, or confinement). See G.S. § 14-39. Trial counsel for the defendant assented to those instructions and did not otherwise object. Despite trial counsel’s agreement, this argument was not waived and could be reviewed for plain error. However, the court found no plain error based on the evidence (which supported each theory), and the fact that there was no conflicting evidence as to the three theories. “Defendant cannot demonstrate plain error because it is undisputed that the evidence at trial supported the theory of kidnapping alleged in the indictment––removal––and also supported the two additional theories of kidnapping included in the instruction––restraint and confinement.” French Slip op. at 12.

(5) The trial court erred in sentencing the defendant for possession of stolen goods (the car) and larceny of a motor vehicle. “A defendant cannot be convicted of both [of these] offenses when the subject property is the same.” Id. at 14. The Court of Appeals therefore vacated the conviction for the possession of stolen goods conviction and found no error as to the defendant’s other convictions.

The defendant was convicted of accessory after the fact to a felony and felony obstruction of justice in Cleveland County relating to her efforts to assist a murder suspect (later convicted of second-degree murder) evade capture. (1) The defendant argued the statutory offense of accessory after the fact abrogated the common law offense of obstruction of justice in part, such that she could not be convicted of both. The North Carolina Supreme Court previously rejected this argument inIn re Kivett, 309 N.C. 635, 670 (1983), which defeated this claim. The defendant also argued that the two offenses were the same for purposes of double jeopardy, in that they are greater- and lesser-included offenses of each other. This argument has also been rejected by the prior decisions of the Court of Appeals, as the offenses have different elements: “This Court has expressly held that accessory after the fact and obstruction of justice do not constitute the same offense, and that neither is a lesser-included offense of the other.” Cruz Slip op. at 9 (citation omitted). Substantial evidence supported each instruction as well. As to the accessory conviction, the evidence showed the defendant provided personal assistance to the suspect while knowing he was wanted for murder. As to the obstruction conviction, the defendant lied to detectives about seeing or communicating with the suspect and deleted information from her phone showing she was in communication with him after police expressed an interest in her phone. This evidence was sufficient to support the instructions for each offense and the trial court did not err by so instructing the jury.

(2) The trial court did not commit plain error by failing to instruct the jury that if the defendant believed the killing was done in self-defense, she could not be convicted of accessory after the fact. Even if the defendant believed the killing was justified, the evidence here was sufficient to raise “a reasonable inference that the [D]efendant knew precisely what had taken place,” as she had notice of the suspect’s outstanding arrest warrant for murder at the time of her assistance to the defendant and her deceptions to law enforcement. The convictions were therefore unanimously affirmed.

The defendant’s sole argument on appeal was that the trial judge violated the statutory mandates of G.S 15A-1231 and 15A-1232 by allowing the clerk to read some of the jury instructions to the jury. The judge had the clerk read the instructions on “(1) the function of the jury; (2) the presumption of innocence; (3) the State’s burden of proof and the definition of reasonable doubt; (4) the jury’s duty in evaluating the credibility of witnesses; (5) the weight of the evidence; (6) the definitions of direct and circumstantial evidence; and (7) the effect of Defendant’s decision not to testify.” The judge read the remainder of the instructions about the specific charges and factual findings required by the jury to convict the defendant. The defendant argued that this procedure gave the jury the impression that the first instructions were less important than those read aloud by the judge herself. The Court of Appeals held that the trial judge violated the statutory mandate that the judge give all instructions to the jury. The Court urged the trial bench not to avoid its statutory duty and emphasized its importance. The Court also recognized the possibility of prejudice by the failure to do so but found the error harmless in this case. The trial judge instructed the jury to listen closely to the clerk; the judge interjected several times to correct misstatements by the clerk; the jury reached its verdict without seeking clarification from the judge; and when asked by the judge for any additions or corrections to the instructions, counsel for the defendant said no.

During cross-examination of the complaining witness in a case involving a charge of assault on a female, the defendant began a line of questions to which the State objected. The trial judge excused the jury and conducted a voir dire, during which the defendant’s counsel demonstrated the proposed cross- examination of the witness, including questions about her mental health and treatment. The trial judge ruled that those questions were not relevant and that to the extent they were relevant they were more prejudicial than probative. When cross-examination resumed in front of the jury, the defendant did not attempt to elicit testimony about the witness’s mental health. (1) The Court of Appeals rejected the State’s argument that the defendant failed to preserve for appellate review the issue of the judge’s refusal to allow the testimony. The defendant was not required to elicit the testimony before the jury where, as here, the defendant elicited the testimony in voir dire and secured a ruling from the trial judge. The Court distinguished State v. Coffey, 326 N.C. 268 (1990), where the trial judge conducted a voir dire, ruled that most of the proposed testimony was inadmissible, but indicated that counsel could ask other questions, which the judge would rule on when the questions were asked. When the jurors returned, however, the defendant did not ask any questions, including questions not yet ruled on by the judge. (2) The Court recognized that North Carolina allows cross-examination of a key witness regarding the witness’s past mental problems or defects to challenge the witness’s credibility, citing State v. Williams, 330 N.C. 711 (1992). The Court found in this case that the excluded testimony concerned prior instances of the witness’s mental health and treatment and that one instance involved treatment the witness had sought for childhood trauma; however, the Court stated that the defendant did not ask or attempt to introduce evidence about a mental health diagnosis or mental state. The Court held that the defendant failed to show that the trial judge abused his discretion in finding that the excluded testimony was not relevant or to the extent it was relevant that it was more prejudicial than probative. (3) The defendant argued that the trial judge committed plain error by charging the jury that the alleged assault involved “grabbing, pushing, dragging, kicking, slapping, and/or punching” when the criminal summons alleged “striking her neck and ear.” The Court rejected the defendant’s variance argument because the defendant failed to object to the instruction at trial, did not request that the trial judge including the “striking” language from the summons, and contributed to the variance by proposing that the judge add the words slapping and punching to the instruction.

The defendant was a passenger in a car stopped at a traffic checkpoint. An officer smelled marijuana emanating from the vehicle. The defendant told the officer that the marijuana was located in a bag behind the driver’s seat. The officer found a drawstring bag there, which the defendant said was his. Inside the bag, the officer found two plastic bags containing marijuana, a hookah, a snort straw, and a beer can. The beer can was altered to be a container that could be unscrewed. Inside the beer can the officer found two white crystallized substances later identified as Methylone and a Lorazepam tablet.

The defendant was charged with felony possession of a Schedule I controlled substance (Methylone), misdemeanor possession of marijuana, and misdemeanor possession of drug paraphernalia based on his possession of the altered beer can. He was convicted and sentenced to 6 to 17 months for the felony and 120 days (to run consecutively) for each misdemeanor offense. Each sentence was suspended, and the defendant was placed on probation for 36 months. He also was ordered to serve 12 days of special probation for the felony.

The defendant argued on appeal that the trial court erred by giving jury instructions that did not identify the item that served as the basis for the defendant’s drug paraphernalia charge (the altered beer can) and that referred to marijuana in addition to Methylone. The defendant was charged with possession of drug paraphernalia under G.S. 90-113.22, not possession of marijuana paraphernalia, a separate crime under G.S. 90-113.22A. The defendant argued that the reference to marijuana may have caused the jury to consider the items associated with the marijuana, including the drawstring bag and the plastic bags containing the marijuana. Because the defendant did not object to the jury instructions at trial, the court of appeals reviewed for plain error.

 The court of appeals determined that naming marijuana in the instructions varied from the indictment and was error. However, the appellate court found that the facts presented during trial undercut any perceived probable impact on the jury. The officer gave substantially more testimony about the altered beer can and its contents than the other containers. The other bags were not discussed in detail, while the beer can was the subject of focused and specific questions, and the jury was given a demonstration of how it unscrewed. The marijuana was entered into evidence inside the plastic bags, “indicating that the bag was part and parcel of the marijuana possession.” Slip op. at 11. The beer can, in contrast, was its own exhibit, and the drawstring bag was not entered into evidence at all. In addition, the jury convicted the defendant of possessing Methylone, a drug contained exclusively in the beer can, suggesting that the jury also believed the defendant possessed the can itself, which, unlike the other items, was designed for the specific purpose of containing and concealing drugs. Thus, the court concluded that the defendant failed to show that the trial court’s error had a probable impact on the jury’s finding of guilt and, as such, was not plain error.

The defendant was convicted by a jury of seven sex crimes against a five-year-old victim, including statutory rape of a child by an adult, statutory sexual offense with a child by an adult, and indecent liberties with a child. At trial, the State presented a nurse practitioner who testified about the medical evaluation given to the victim. The nurse practitioner testified without objection that the victim gave “clear and concise statement[s] regarding child sexual abuse,” and that her own testimony was “based off a complete medical evaluation, not only [the victim’s] statements.” (1) On appeal, the defendant argued that the trial court committed plain error by impermissibly allowing the nurse practitioner to testify to the truth of the victim’s statements to the extent that she offered a conclusive diagnosis without physical evidence. The court rejected the argument, noting first that the witness never actually offered a conclusive diagnosis. To the contrary, she gave testimony relevant to helping the jury understand that a lack of physical evidence in a medical exam did not preclude sexual abuse. Moreover, any error related to the nurse practitioner’s detailed testimony about sexual abuse, including penetration, was deliberately elicited by the defendant on cross-examination. Regardless, the defendant did not demonstrate that the jury would have reached a different result in light of all the other unchallenged evidence. (2) The defendant also argued that the trial judge erred by excluding the testimony from two defense witnesses who allegedly asked the victim’s mother to stop talking about sex in front of children. The court of appeals disagreed, concluding that the proffered testimony—that the victim may have learned explicit language about sexual abuse from her mother and not from her personal experience with abuse—was too speculative and not within the witnesses’ personal knowledge. (3) Finally, the trial court did not err by failing to give a limiting instruction indicating that the nurse practitioner’s statistical testimony could be considered only for corroborative purposes. Reviewing the argument for plain error, the court concluded that the nurse practitioner’s testimony was proper, and that any error would not be prejudicial in any event in light of the collective evidence of guilt.

The trial court did not err in this murder case by declining to use the defendant’s requested special instruction on deliberation. The defendant also requested a special jury instruction that paraphrased a passage from State v. Buchanan, 287 N.C. 408 (1975) to explain the concept of deliberation. The trial judge did not err by refusing that request and using the pattern jury instruction on deliberation instead. The pattern jury instruction was a correct statement of the law, and it embraced the substance of the defendant’s request.

(1) In an involuntary manslaughter case where a death occurred during a high speed chase by a bail bondsman in his efforts to arrest a principal, the trial court did not err by instructing the jury that bail bondsmen cannot violate motor vehicle laws in order to make an arrest. While the statute contains specific exemptions to the motor vehicle laws pertaining to speed for police, fire, and emergency service vehicles, no provision exempts a bail bondsman from complying with speed limits when pursuing a principal. (2) The trial court did not err by failing to submit to the jury the question whether the defendant’s means in apprehending his principal were reasonable. Under the law the defendant bail bondsman was not authorized to operate his motor vehicle at a speed greater than was reasonable and prudent under the existing conditions because of his status as a bail bondsman. It concluded:

Just as the bail bondsmen cannot enter the homes of third parties without their consent, a bail bondsmen pursuing a principal upon the highways of this State cannot engage in conduct that endangers the lives or property of third parties. Third parties have a right to expect that others using the public roads, including bail bondsmen, will follow the laws set forth in Chapter 20 of our General Statutes.

The trial court did not err by refusing to instruct the jury on jury nullification.

No plain error occurred when the trial judge referred to the complainant as the victim several times in the jury instructions.

In a case involving a charge of possession of implements of housebreaking, the trial court erred by instructing the jury that bolt cutters, vice grips, channel lock pliers, flashlights, screwdrivers, a hacksaw, and a ratchet and socket are implements of housebreaking. The instruction was tantamount to a peremptory instruction that the tools at issue were implements of housebreaking. However, the error was not plain error.

Show Table of Contents