On discretionary review from a unanimous unpublished Court of Appeals decision, the court reversed in part, concluding that the trial court’s jury instructions regarding first-degree kidnapping did not violate the defendant’s constitutional right to be convicted by the unanimous verdict. The trial court instructed the jury, in part, that to convict the defendant it was required to find that he removed the victim for the purpose of facilitating commission of or flight after committing a specified felony assault. The defendant was convicted and appealed arguing that the disjunctive instruction violated his right to a unanimous verdict. Citing its decision in State v. Bell, 359 N.C. 1, 29-30, the Supreme Court disagreed, stating: “our case law has long embraced a distinction between unconstitutionally vague instructions that render unclear the offense for which the defendant is being convicted and instructions which instead permissibly state that more than one specific act can establish an element of a criminal offense.” It also found that, contrary to the opinion below, the evidence was sufficient to support a jury finding that the defendant had kidnapped the victim in order to facilitate an assault on the victim.

In this Wake County case, defendant appealed his convictions for second-degree murder and assault with a deadly weapon, arguing (1) the substitution of an alternate juror after deliberation began justified granting him a new trial, and (2) error in denying his motion to suppress the results of GPS tracking from his ankle monitor. The Court of Appeals granted a new trial due to the substitution in (1) but affirmed the order denying the motion for (2). 

In November of 2019, surveillance footage caught a red car at a convenience store where a shooting occurred. An informant linked defendant to being an occupant of the car, and police determined that defendant was under post-release supervision (PRS) and wearing a GPS ankle monitor. A Raleigh police officer accessed the location history of defendant’s monitor, and found results tying him to the scene of the shooting. Defendant was subsequently indicted for the shooting and came to trial in December of 2021. During jury selection, one of the jurors informed the court that he had a scheduled vacation but could serve if the trial concluded before that date. The juror was seated, but due to the trial schedule, the jury was still in deliberations when his scheduled vacation arrived. Neither the State nor defendant objected when the trial court released the juror and replaced him with an alternate. The jury subsequently returned a verdict of guilty. 

Taking up (1), the Court of Appeals pointed to State v. Chambers, 898 S.E.2d 86 (N.C. App. 2024), as controlling precedent. Under Chambers, any substitution of a juror after deliberation violated defendant’s constitutional right to a unanimous verdict. The court noted “[a]lthough the Supreme Court of North Carolina has granted discretionary review of Chambers, this Court remains bound by Chambers and we are therefore required to grant Defendant’s request for a new trial based upon the juror substitution.” Slip Op. at 8. 

Because the issue would arise again in the new trial, the court next considered (2). Defendant argued “the State exceeded the scope of the search allowed by [G.S.] 15A-1368.4 because the law enforcement officer who accessed the data from his ankle monitor was not his supervising officer under his PRS.” Id. at 9. The court first established defendant was subject to PRS and outlined the statutory basis under G.S. 15A-1368.4 for his ankle monitor. In particular, the court noted “subsection (e)(13) does not limit the access to electronic monitoring data to the supervisee’s post-release supervision officer or any particular law enforcement agency[. . .] a supervisee can be required to ‘remain in one or more specified places’ at specific times and to ‘wear a device that permits the defendant’s compliance with the condition to be monitored electronically[.]’” Id. at 18. The limitations for warrantless searches of a PRS supervisee’s person and vehicle are different than those imposed on electronic monitoring, and the court concluded that “under these circumstances, [the police officer’s] accessing the ankle monitor data was not a ‘search’ as defined by law.” Id. at 20-21. The court also clarified that “[a]s a supervisee under PRS under [G.S.] 15A-1368.4, Defendant had a lower expectation of privacy than the offenders subject to lifetime SBM under the [State v. Grady, 259 N.C. App. 664 (2018)] caselaw.” Id. at 23. 

In this Wake County case, defendant appealed his convictions for first-degree murder and assault with a deadly weapon, arguing his right to a properly constituted jury was violated when the trial court substituted an alternate juror after the jury began deliberations. The Court of Appeals agreed, vacating his convictions and remanding for a new trial. 

Defendant came to trial in August of 2018 for a shooting at a Raleigh motel. After jury deliberations began, a juror informed the trial court that he had a doctor’s appointment and could not return the next day. The trial court replaced the juror with an alternate juror and ordered the jury to restart deliberations; defendant was not present in the courtroom when the substitution was made. Defendant subsequently appealed. 

Turning to defendant’s arguments, the Court of Appeals concluded that the trial court’s substitution of an alternate juror was error. The court referenced State v. Bunning, 346 N.C. 253 (1997), and explained that the N.C. Supreme Court has interpreted the unanimous verdict requirement of the North Carolina Constitution in Article I, § 24 “to preclude juror substitution during a trial after the commencement of jury deliberations.” Slip Op. at 3. Because the substitution meant that thirteen jurors participated in the deliberations for defendant’s convictions, “[d]efendant’s constitutional right to a properly constituted jury of twelve was violated when the trial court substituted an original juror with an alternate juror after the commencement of jury deliberations.” Id. at 4. The court reached this conclusion despite the text of G.S. 15A-1215(a), noting that “where a statute conflicts with our state constitution, we must follow our state constitution.” Id. at 5. 

In this Buncombe County case, defendant appealed his convictions for second-degree forcible sexual offense, intimidating or interfering with a witness, and habitual felon status, arguing (1) the trial court lacked jurisdiction over the interfering with a witness charge, (2) error in denying his motion to dismiss the interfering charge due to insufficient evidence, and (3) error in the jury instruction related to the interfering charge. The Court of Appeals found the trial court did have sufficient jurisdiction and committed no error.

The charges against defendant arose from a 2019 incident where he forced himself upon a woman after a night of drinking and smoking marijuana. While defendant was in the Buncombe County Jail prior to trial, he made a call to the victim using a fake name. When the victim answered, defendant told her “[i]f you’re still in Asheville, I’m gonna try and send you some money,” and “I got $1,000 for ya.” Slip Op. at 4-5. The victim informed law enforcement of the call, leading to the additional charge of intimidating or interfering with a witness. At trial, the victim testified about the phone call and the recording was published to the jury. Defense counsel’s motions to dismiss the charges were denied by the trial court. 

The Court of Appeals first explained the basis of defendant’s argument (1), that the trial court lacked jurisdiction because the alleged conduct from the indictment, bribing the witness/victim not to testify, was not criminalized by G.S. 14-226. Defendant argued that bribery was not an act to intimidate the witness under the language of the statute, and that only threatening or menacing a witness represented a violation of the statute. The court rejected this interpretation, explaining that G.S. 14-226 “prohibits intimidation of witnesses or attempts to deter or interfere with their testimony ‘by threats, menaces or in any other manner,’” and that this language “given its plain and ordinary meaning, straightforwardly expands the scope of prohibited conduct beyond ‘threats’ and ‘menaces’ to include any other act that intimidates a witness or attempts to deter or interfere with their testimony.” Id. at 9-10. 

The court likewise rejected (2), defendant’s motion to dismiss argument. Here the court explained that direct evidence was not required to prove intent, and that circumstantial evidence was sufficient to support a finding that defendant intended to dissuade the witness from testifying. The court held that “the circumstantial evidence that the State did introduce in this case supports a reasonable inference that [defendant] acted with just that intent given the context in which he made the offer.” Id. at 13. 

Taking up (3), defendant’s objections to the jury instructions, the court explained that defendant objected to four elements of the instructions. First, defendant objected that the instruction did not require the jury to find that defendant threatened the witness/victim; the court explained this was precluded by its holding discuss above on bribery in G.S. 14-226. Second, defendant argued that the instruction did not convey the required intent to the jury; the court rejected this argument as the instruction was based on a pattern jury instruction previously held to be consistent with the statute. Third, defendant argued that the structure of the instruction allowed the jury to convict him for simply offering the witness/victim $1,000, which is not illegal conduct; again the court pointed to the context and circumstances around the conduct and bribery to dissuade the testimony. 

Defendant’s final argument regarding the jury instruction was that the disjunctive structure of the instruction allowed a jury verdict that was not unanimous, as he asserted that various jury members may have found him guilty under separate parts of the instruction. The court explained that some disjunctive instructions are unconstitutional, particularly where a jury can choose from one of two underlying acts to find a defendant guilty of a crime such as in State v. Lyons, 330 N.C. 298 (1991). Slip Op. at 18. However, the crime of intimidating or interfering with a witness does not consist of a list of specific criminal acts, and the court pointed to the example of State v. Hartness, 326 N.C. 561 (1990), where indecent liberties was identified as a similar statute where any of several disjunctive acts can constitute the elements of the offense for purposes of a jury’s guilty verdict. Slip Op. at 19. As there was no danger of jurors convicting defendant of separate offenses under G.S. 14-226, the court found no issue with the disjunctive nature of the jury instruction in the current case. The court further noted that the evidence and verdict rested solely on the attempt to bribe the witness/victim, and did not provide other possible behaviors that could create ambiguity. 

(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of disseminating obscene material to a minor. On appeal the defendant argued that there was insufficient evidence that the material was obscene. At trial the victim testified that the defendant showed her movies involving “a guy and a girl” having sex naked. The State introduced a photograph of three pornographic DVDs found in a search of the premises and the victim’s mother testified that the defendant “had so many” pornographic DVDs. According to the victim’s mother, when the allegations came to light, the defendant disposed of some of his pornography collection and put the rest in a shed. The victim’s mother later found that material and gave it to detectives. At trial various titles from the defendant’s pornography collection were read to the jury. This evidence was sufficient to allow a reasonable jury to infer that the material the defendant showed to the victim was of the same nature of that contained in the defendant’s pornography collection and therefore was obscene material under contemporary community standards.

(2) The trial court’s instructions with respect to multiple counts of indecent liberties with a child, first-degree rape of a child, and sex offense in a parental role did not deprive the defendant of his constitutional right to a unanimous jury verdict. The trial court provided a single instruction for each offense, without describing the details of the conduct underlying each charge. It did however instruct the jury that it must consider each count individually and the verdict sheets identified each count by victim and included a brief description of the particular conduct alleged by reference to the location where it occurred. Additionally jurors were instructed that they all must agree to the verdict, that they could not reach a verdict by majority vote, and that they should indicate on the verdict forms when they agreed upon unanimous verdicts as to each charge. Applying the test from State v. Lawrence, 360 N.C. 368 (2006), the court rejected the defendant’s argument that the jury instructions deprived him of his right to a unanimous jury verdict. The court went on to note that “the instant case is not one in which the risk of a non-unanimous verdict would have arisen by virtue of the trial court’s instructions.” The crimes at issue do not list as elements discrete criminal activities in the disjunctive. Instead, the indecent liberties statute simply forbids any immoral, improper indecent liberties with a child under 13 if taken for the purpose of arousing or gratifying sexual desire. The particular act found to be performed is immaterial to the unanimity inquiry. Thus, even if some jurors were to find that the defendant engaged in one kind of sexual misconduct while others found that he engaged in another, the jury as a whole would still have unanimously found the required sexual misconduct. Here, the defendant was charged with five counts of indecent liberties against the victim. The victim testified to at least five incidents that would have constituted indecent liberties; in fact she testified to 7 such incidents. Similarly, the jury convicted the defendant of four counts of statutory rape and the victim testified to at least four specific incidents that constituted statutory rape and occurred in each of the four locations indicated on the verdict sheet. Therefore there was no danger that the rape verdicts were not unanimous.

(3) The trial court did not err by declining to reopen the case after the defendant reconsidered his decision not to testify. After the close of the State’s evidence, the trial court addressed the defendant regarding his decision whether or not to testify. The defendant informed the trial court that he would not testify. The defense did not present any evidence and rested, and the jury was excused. After the charge conference defense counsel informed the trial court that the defendant had reconsidered his decision and now wished to testify. The trial court declined to reopen the case and bring the jury back in order to allow the defendant to testify. The court found no abuse of discretion in the trial court’s decision to decline to reopen the case to allow the defendant to testify.

In a failure to register (change of address) case, the court rejected the defendant’s argument that the trial court violated his right to a unanimous verdict because it was not possible to determine the theory upon which the jury convicted. The trial court instructed the jury, in part, that the State must prove “that the defendant willfully changed his address and failed to provide written notice of his new address in person at the sheriff’s office not later than three days after the change of address to the sheriff’s office in the county with which he had last registered.” The defendant argued that, based on this instruction, it was impossible to determine whether the jury based his conviction on his failure to register upon leaving the county jail, failure to register upon changing his address, registering at an invalid address, or not actually living at the address he had registered. The court concluded: “because any of these alternative acts satisfies the . . . jury instruction — that Defendant changed his address and failed to notify the sheriff within the requisite time period — the requirement of jury unanimity was satisfied.”

In a case in which the defendant was indicted on 24 counts of indecent liberties, 6 counts of first-degree statutory sex offense, and 6 counts of second-degree sex offense, the court cited State v. Lawrence, 360 N.C. 368 (2006), and rejected the defendant’s argument that because the indictments did not distinguish the separate acts, there was a possibility that the jury verdicts were not unanimous as to all of the convictions.