Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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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.

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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.

In a discharging a barreled weapon into occupied property case, the trial court did not err by instructing the jury that because the crime was a general intent crime, the State need not prove that the defendant intentionally discharged the firearm into occupied property, and that it needed only prove that he intentionally discharged the firearm.

 

The trial court did not err by denying the defendant’s request for a diminished capacity instruction with respect to a charge of discharging a firearm into occupied property that served as a felony for purposes of a felony-murder conviction. Because discharging a firearm into occupied property is a general intent crime, diminished capacity offers no defense.

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.

 

There was sufficient evidence of premeditation and deliberation when, after having a confrontation with an individual named Thomas, the defendant happened upon Thomas and without provocation began firing at him, resulting in the death of the victim, an innocent bystander. Citing the doctrine of transferred intent, the court noted that “malice or intent follows the bullet.”

The doctrine of transferred intent permits the conviction of a defendant for discharging a weapon into occupied property when the defendant intended to shoot a person but instead shot into property that he or she knew was occupied.

 

An instruction on transferred intent was proper in connection with a charge of attempted first-degree murder of victim B where the evidence showed that B was injured during the defendant’s attack on victim A, undertaken with a specific intent to kill A.

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.

State v. Miller, 246 N.C. App. 330 (Mar. 15, 2016) rev’d on other grounds, 369 N.C. 658 (Jun 9 2017)

G.S. 90-95(d1)(1)(c) (possession of pseudoephedrine by person previously convicted of possessing methamphetamine is a Class H felony) is a strict liability offense. 

(1) The trial court did not err by instructing the jury that it could find the defendant guilty of second-degree burglary under a theory of accessory before the fact, aiding and abetting, or acting in concert. The separate theories were not separate offenses, but rather merely different methods by which the jury could find the defendant guilty. (2) By enacting G.S. 14-5.2 the General Assembly did not abolish the theory of accessory before the fact; the statute merely abolished the distinction between an accessory before the fact and a principal, meaning that a person who is found guilty as an accessory before the fact should be convicted as a principal to the crime.

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 juvenile case, the trial court erred by denying the respondent’s motions to dismiss charges of second-degree sexual exploitation of a minor and first-degree forcible sexual offense but did not err by accepting his admission of attempted larceny in an incident unrelated to the alleged sex crimes.

The State relied on an acting in concert theory in proceeding against the respondent on the second-degree sexual exploitation of a minor charge because all testimony was that a person other than the respondent made a video recording of the respondent apparently engaging in non-consensual sexual contact with the victim.  The court reviewed the evidence presented at trial and found it insufficient to show that the respondent and the person who recorded the video acted with a common plan or scheme to make the recording.  The court stated that the evidence showed that the respondent “did not wish to be recorded and that [the other person’s] decision to record the incident was of his own volition.”

The evidence of penetration was insufficient to support the first-degree forcible sexual offense charge allegedly based on anal intercourse as the victim unambiguously and explicitly denied that anal penetration occurred and the State did not present sufficient other evidence corroborating the allegation of penetration.  The court rejected the State’s argument that a witness’s description of the incident as the respondent and the victim “doing it” was sufficient evidence of penetration and noted that at the adjudicatory hearing the State had conceded “that there was not evidence of penetration.”

There was a sufficient factual basis to support the respondent’s admission to an unrelated charge of attempted misdemeanor larceny of a bicycle where the respondent was found near the crime scene with two people fitting a witness’s description of the suspects, had bolt cutters in his backpack, and denied committing but expressed some knowledge of the larceny to an investigating officer.  Though the trial court did not err by accepting the respondent’s admission to attempted misdemeanor larceny, the court could not remand the matter for a new disposition hearing to account for its rulings related to the sufficiency of the evidence of the sex crimes because the trial court’s juvenile jurisdiction terminated when the respondent turned eighteen years old while the appeal was pending. 

Justice Newby concurred in part and dissented in part, expressing the view that the evidence was sufficient to support the lesser included offense of attempted first-degree forcible sexual offense and that the matter should be remanded for entry of an amended adjudication for that offense.

State v. Waring, 364 N.C. 443 (Nov. 5, 2010)

In a capital case involving two perpetrators, the court rejected the defendant’s argument that the State should have been obligated to prove that the defendant himself had the requisite intent. The trial court properly instructed on acting in concert with respect to the murder charge, in accordance with State v. Barnes, 345 N.C. 184 (1998).

A longstanding feud and several prior altercations culminated in the defendant and an accomplice ambushing two victims as they were driving away from the home of a woman who helped set the victims up. As the victims’ vehicle left the woman’s home and approached an intersection, the accomplice was standing in the middle of the road and began shooting at the driver’s side of the victims’ car. The defendant was also present and shot at the passenger side of the car.  The diver of the vehicle was killed, but the passenger survived unharmed. The defendant was identified as a suspect, interviewed, and arrested. In the defendant’s first interview with police, he claimed that he had been at home all day when the murder occurred. In his second interview, the defendant admitted he lied in his first interview and admitted that he was present at the scene and fired at the car, but maintained that he was firing in self-defense and not aiming at the vehicle.

The defendant was charged with first-degree murder of the driver, attempted murder of the passenger, conspiracy to commit first-degree murder of the passenger, and discharging a firearm into an occupied vehicle in operation. Following a jury trial, the defendant was convicted of all charges. The jury found the defendant guilty of murder based on both lying in wait and felony murder, but acquitted as to malice, premeditation, and deliberation. Judgment on the discharging a firearm offense was arrested, and the defendant was sentenced to life in prison.

On appeal, the defendant argued that the evidence at trial was insufficient to support his convictions for murder, attempted murder, or conspiracy. The Court of Appeals disagreed, and held that there was sufficient evidence to support all the charges. Even though the state offered the defendant’s initial exculpatory statement into evidence, that statement was inconsistent with other evidence of the defendant’s guilt, such as his admissions to being at the scene and firing a gun, and forensic evidence that showed he fired 13 shots at the passenger side of the vehicle. The bullet that killed the driver came from the other side of the car, but there was sufficient evidence to show that the defendant and the other shooter were acting in concert and engaged in the felony of discharging a firearm into an occupied vehicle. Evidence cited by the court included the longstanding feud that led to the murder, the close friendship between the defendant and the other shooter, incriminating text messages regarding their plan, the coordinated nature of both the set-up to bring the victims to a specific location and the resulting ambush, and the assailants’ joint flight afterward. Based on all the evidence, a reasonable juror could conclude that the two shooters were lying in wait for the victims, and they were acting in concert when they opened fire on the occupied vehicle. Although the passenger in the vehicle survived, the court held that the evidence was likewise sufficient to find that the defendant and his accomplice intended to murder the passenger, made an agreement to do so, and performed an overt act to carry out that intent, thus supporting the convictions for both attempted murder and conspiracy.

(1) In this murder case, the trial court did not err by instructing the jury on the doctrine of acting in concert where there was evidence that the defendant and another man met together at a store, discussed with the defendant’s brother that the victim owed the brother money, received instructions from the brother to collect the money, traveled together to the scene of the murder, and fled together from the scene after the defendant shot the victim.

(2) The trial court erred in allowing the co-defendant’s aunt, who was present at the scene of the murder but did not witness it directly, to testify that she believed the defendant was holding a gun in surveillance video footage published to the jury.  This lay opinion testimony, which was not based on any personal knowledge, invaded the role of the jury in violation of Rule 602 because the aunt was in no better position to know what the video showed than the jurors.  The error did not prejudice the defendant.

(1) The trial court properly denied the defendant’s motion to dismiss a charge of armed robbery where the evidence showed that he acted in concert with the perpetrator. Although the defendant was not identified as being at the crime scene, it would have been reasonable for the jury to infer that the defendant acted in concert to commit the crime. A crime scene witness saw a car fly by him, hit a speed bump and blow out a tire. The Sheriff’s Department reported a silver car was involved in an armed robbery involving 3 to 4 suspects. An officer testified that less than one minute after receiving the 911 communication, she found the defendant changing a flat tire on his vehicle, along with two other individuals, less than a 1/4 mile from the crime scene. The victim’s debit card--the item stolen in the robbery—was found close to the defendant’s vehicle. Other items identified by the victim—a mask, snubnosed revolver, and red clothing—were located or recovered at or near the defendant’s vehicle.

(2) For similar reasons the court held that the trial court did not commit plain error by instructing the jury on acting in concert.

State v. Bennett, ___ N.C. App. ___, 821 S.E.2d 476 (Oct. 16, 2018) rev’d on other grounds, ___ N.C. ___, ___ S.E.2d ___ (Jun 5 2020)

In this drug case, the trial court rejected the defendant’s argument that the evidence was insufficient to support an acting in concert instruction. Reviewing the evidence, the court rejected the defendant’s argument that it showed only mere presence.

(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. (3) The evidence was sufficient to support the trial court’s instruction on the theory of acting in concert. On appeal, the defendant argued that the State’s evidence was insufficient to show that he and his accomplice acted with a common purpose to commit a larceny or that he aided or encouraged his accomplice. According to the defendant, the evidence showed that he was simply present when his accomplice committed the crime. Here, the evidence showed that the defendant rode with his accomplice in the same car to the store; the two entered the store together; they looked at merchandise in the same section of the store; they were seen on surveillance video returning to the same area behind the clothing rack, stuffing shirts into their pants; and the two left the store within seconds of each other and exited the parking lot in a vehicle driven by the accomplice.

The evidence was sufficient to sustain a charge of assault with a deadly weapon inflicting serious injury based on a theory of acting in concert. It was undisputed that the victim sustained serious injury; the only real issue was whether the evidence was sufficient to allow a reasonable inference that the defendant was a perpetrator of the crime. Another individual, Mr. Robinson, shot the victim. The evidence showed that the defendant and the victim’s wife drove to the victim’s residence, where the victim and his wife engaged in a dispute over custody of their children until the police arrived and required the defendant and the victim’s wife to leave without the children. The next evening the defendant drove his vehicle, with Robinson and the victim’s wife, back to the victim’s residence, carying with them firearms, bulletproof vests, and walkie-talkie radios that were turned on and set the same channel. The vehicle was waiting in the victim’s apartment parking lot when he arrived home. Robinson, who did not know the victim, shot the victim and asked him if he wanted to die. The defendant assisted Robinson in restraining the victim, placed a handcuff on one of the victim’s wrists, tried to cuff both of the victim’s wrists, searched the victim’s pockets, and escorted the victim’s children from his apartment to the vehicle where the victim’s wife was waiting. After neighbors found the victim bleeding from gunshot wounds, the defendant sped away from the scene with the victim’s wife, Robinson, and the children. This evidence was sufficient to sustain and acting in concert charge. 

In this drug case, the trial court committed plain error by instructing the jury on the theory of acting in concert. The State presented no evidence that the defendant had a common plan or purpose to possess the contraband with his alleged accomplice, McEntire. At most, the evidence showed that the two were acquainted and the defendant was present when the drugs were found at McEntire’s home. Mere presence at the scene of a crime however is insufficient where the State presented no evidence that the two shared any criminal intent.

Reversing the defendant’s convictions for contaminating a public water system, the court held that because the defendant was not constructively present, the evidence was insufficient to support criminal liability under the doctrine of acting in concert. The evidence showed that the defendant offered to pay another person to intentionally break county water lines so that the defendant’s company, which was under contract with the county to repair the lines, would be paid by the county for the necessary repairs. The defendant was never present when the accomplice broke the water lines. The court held that the defendant “was not physically close enough to aid or encourage the commission of the crimes and therefore was not actually or constructively present—a necessary element of acting-in-concert liability.” The court rejected the State’s argument that the defendant was constructively present because she planned the crimes, was accessible if needed by telephone, and later was at the crime scene to repair the broken water lines. In this respect, the court held, in part, that “one cannot be actually or constructively present for purposes of proving acting in concert simply by being available by telephone.” The court noted that the evidence would have supported a conviction based on a theory of accessory before the fact, but the jury was not instructed on that theory of criminal liability, nor was the defendant charged with other offenses, such as conspiracy, that apply to those who help plan a criminal act. 

The evidence was sufficient to support convictions for murder, burglary, and armed robbery on theories of acting in concert and aiding and abetting. The court noted that neither acting in concert nor aiding and abetting require a defendant to expressly vocalize her assent to the criminal conduct; all that is required is an implied mutual understanding or agreement. The State’s evidence showed that the defendant was present for the discussions and aware of the group’s plan to rob the victim Wiggins; she noticed an accomplice’s gun; she was sitting next to another accomplice in a van when he loaded his shotgun; she told the group that she did not want to go up to the house but remained outside the van; she walked toward the house to inform the others that two victims had fled; she told two accomplices “y’all need to come on;” she attempted to start the van when an accomplice returned but could not release the parking brake; and she assisted in unloading the goods stolen from Wiggins’ house into an accomplice’s apartment after the incident.

State v. Rowe, 231 N.C. App. 462 (Dec. 17, 2013)

In an assault inflicting serious injury case, the evidence was sufficient to show that the defendant acted in concert with other assailants and thus that he was guilty of the offense even if the injuries he personally inflicted did not constitute “serious injury.”

State v. Facyson, 227 N.C. App. 576 (June 4, 2013) rev’d on other grounds, 367 N.C. 454 (Jun 12 2014)

The evidence was sufficient to show that the defendant committed second-degree murder either alone or in concert with others. The defendant was present with two men who borrowed a red Ford from David Andrews. The three men did not return the car to Andrews and the defendant was later seen driving the car. Two witnesses said that the men who fired the shots at the victim were in a sedan, and one said that the car was red. Two other witnesses established that the red Ford was parked in an apartment complex parking lot shortly after the shooting. The defendant and the others who borrowed the car went to the lot and one of the men was seen wiping the car. The keys to the car were found in the grass near the parking lot after one of the men fled and was seen throwing an object. A bullet casing consistent with bullets found at the murder scene was found in the car, and particles consistent with gunshot residue were found on all of the men, including one particle on the defendant’s pants.

In a case involving charges of obtaining property by false pretenses arising out of sales to a pawn shop in which another person told the shop that the items were not stolen, the evidence was insufficient to show that the defendant was acting in concert. Assuming that the State sufficiently established the other elements of acting in concert, there was no evidence that the defendant was either actually present or near enough to render assistance as needed to his alleged accomplice.

In a kidnapping and armed robbery case the evidence was sufficient that the defendant acted in concert with an accomplice. Although the defendant argued that the evidence established that he was merely present at the scene, the evidence showed that he aided his co-conspirator.

The trial court did not err by dismissing charges of felony breaking or entering and felony larceny. The State presented evidence that an unknown man, who appeared to be concealing his identity, was seen walking around the victim’s yard carrying property later determined to have been taken from the victim’s home. The man fled when he saw officers and was never apprehended or identified. The defendant was also seen in the yard, but was never seen entering or leaving the home or carrying any stolen property. Although the defendant also fled from officers, no evidence linked him to the unknown man. The defendant’s presence in the yard and his flight was insufficient evidence of acting in concert.

The evidence was sufficient to support a conviction of armed robbery under an acting in concert theory. Although the record did not reveal whether the defendant shared the intent or purpose to use a dangerous weapon during the robbery, this was not a necessary element under the theory of acting in concert.

In a case in which there was a dissenting opinion, the court held that there was sufficient evidence that the defendant acted in concert with another to commit a robbery. The evidence showed that he was not present at the ATM where the money was taken, but was parked nearby in a getaway vehicle.

There was sufficient evidence of acting in concert with respect to a murder and felony assault, notwithstanding the defendant’s exculpatory statement that he “got caught in the middle” of the events in question. Other evidence permitted a reasonable inference that the defendant and an accomplice were shooting at the victims pursuant to a shared or common purpose.

The court rejected the defendant’s argument that to convict of burglary by acting in concert the State was required to show that the defendant had the specific intent that one of her accomplices would assault the victim with deadly weapon. The State’s evidence, showing that the defendant forcibly entered the residence accompanied by two men carrying guns and another person, armed with an axe, who immediately asked where the victim was located, was sufficient evidence that an assault on the victim was in pursuance of a common purpose or as a natural or probable consequence thereof.

State v. Cannon, 370 N.C. 487 (Mar. 2, 2018)

The court per curiam affirmed a divided panel of the Court of Appeals, ___ N.C. App. ___, 804 S.E.2d 199 (2017). Over a dissent, the court of appeals had held that the trial court did not err by denying the defendant’s motion to dismiss a charge of aiding and abetting larceny. The charges arose out of the defendant’s involvement with store thefts. A Walmart loss prevention officer observed Amanda Eversole try to leave the store without paying for several clothing items. After apprehending Eversole, the loss prevention officer reviewed surveillance tapes and discovered that she had been in the store with William Black, who had taken a number of items from store shelves without paying. After law enforcement was contacted, the loss prevention officer went to the parking lot and saw Black with the officers. Black was in the rear passenger seat of an SUV, which was filled with goods from the Walmart. A law enforcement officer testified that when he approached Black’s vehicle the defendant asked what the officers were doing. An officer asked the defendant how he knew Black and the defendant replied that he had only just met “them” and had been paid $50 to drive “him” to the Walmart. The defendant also confirmed that he owned the vehicle. Citing this and other evidence, the court of appeals held that the trial court did not err by denying the motion to dismiss.

In its per curiam opinion, the supreme court “specifically disavowed” the taking of judicial notice by the court of appeals of the prevalence of Wal-Mart stores in Gastonia and in the area between Gastonia and Denver, as well as of the “ubiquitous nature of Wal-Mart stores.”

State v. Dick, 370 N.C. 305 (Dec. 8, 2017)

The court reversed a unanimous, unpublished decision of the Court of Appeals in this first-degree sexual offense case, holding that the trial court did not err by giving a disjunctive jury instruction. One of the factors that can elevate a second-degree sexual offense to a first-degree sexual offense is that the defendant was aided and abetted by one or more other persons; another is that the defendant used or displayed a dangerous or deadly weapon. Here, the trial court gave a disjunctive instruction, informing the jury that it could convict the defendant of the first-degree offense if it found that he was aided and abetted by another or that he used or displayed a dangerous or deadly weapon. Where, as here, the trial court instructs the jury disjunctively as to alternative acts which establish an element of the offense, the requirement of unanimity is satisfied. However, when a disjunctive instruction is used, the evidence must be sufficient under both theories. In this case it was undisputed that the evidence was sufficient under the dangerous or deadly weapon prong. The defendant contested the sufficiency of the evidence under the aiding and abetting prong. The court found the evidence sufficient, holding that the Court of Appeals erred in concluding that actual or constructive presence is required for aiding and abetting. As the Court stated in State v. Bond, 345 N.C. 1 (1996), actual or constructive presence is no longer required to prove aiding and abetting. Applying that law, the court held that although the defendant’s accomplices left the room before the defendant committed the sexual act, there was sufficient evidence for the jury to conclude that the others aided and abetted him. Among other things, two of the accomplices taped the hands of the residents who were present; three of them worked together to separate the sexual assault victim from the rest of the group; one of the men grabbed her and ordered her into a bedroom when she tried to sit in the bathroom; and in the bedroom the defendant and an accomplice groped and fondled the victim and removed her clothes. Most of these acts were done by the defendant and others. The act of taping her mouth shut, taping her hands behind her back, moving her into the bedroom, removing her clothing and inappropriately touching her equate to encouragement, instigation and aid all of which “readily meet the standards of . . . aiding and abetting.” The court rejected the defendant’s argument that the evidence was insufficient because he was the only person in the room when the sex act occurred.

In this child sexual assault case, the trial court did not err by denying the defendant’s motion to dismiss five statutory sexual offense charges based on a theory of aiding and abetting. The State’s theory was that the defendant encouraged the victim’s mother to engage in sexual activity with the victim, and that the victim’s mother did this to “bait” the defendant into a relationship with her. On appeal the defendant argued that the evidence was insufficient to show that he encouraged or instructed the victim’s mother to perform cunnilingus or digitally penetrate the victim, or that any statement by him caused the victim’s mother to perform the sexual acts. The court disagreed. The State’s evidence included Facebook conversations between the victim’s mother and the defendant. The defendant argued that these messages were fantasies and that even if taken at face value, were devoid of any instruction or encouragement to the victim’s mother to perform sexual acts, specifically cunnilingus or penetration of the victim. The court rejected this argument, concluding that an explicit instruction to engage in sexual activity is not required. Here, the evidence showed that the defendant knew that the victim’s mother wanted a relationship with him and that he believed she was using the victim to try to initiate that relationship. Numerous messages between the defendant and the victim’s mother support a reasonable inference of a plan between them to engage in sexual acts with the victim. The victim’s mother testified that she described sexual acts she performed on the victim to the defendant because he told her he liked to hear about them. The defendant argued that this description of sexual acts after the fact is insufficient to support a finding that he knew of or about these acts prior to their occurrence, a requirement for aiding and abetting. However, the court concluded, the record supports an inference that he encouraged the victim’s mother to perform the acts. Among other things, the defendant specified nude photos that he wanted of the victim and initiated an idea of sexual “play” between the victim’s mother and the victim. After the victim’s mother videotaped her act of performing cunnilingus on the victim and send it to the defendant, the defendant replied that he wanted to engage in that act. After he requested a video of the victim “playing with it,” the victim’s mother made a video of her rubbing the victim’s vagina. This evidence was sufficient to support an inference that the defendant aided and abetted in the victim’s mother’s sexual offenses against the victim.

The evidence was sufficient to support convictions for murder, burglary, and armed robbery on theories of acting in concert and aiding and abetting. The court noted that neither acting in concert nor aiding and abetting require a defendant to expressly vocalize her assent to the criminal conduct; all that is required is an implied mutual understanding or agreement. The State’s evidence showed that the defendant was present for the discussions and aware of the group’s plan to rob the victim Wiggins; she noticed an accomplice’s gun; she was sitting next to another accomplice in a van when he loaded his shotgun; she told the group that she did not want to go up to the house but remained outside the van; she walked toward the house to inform the others that two victims had fled; she told two accomplices “y’all need to come on;” she attempted to start the van when an accomplice returned but could not release the parking brake; and she assisted in unloading the goods stolen from Wiggins’ house into an accomplice’s apartment after the incident.

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.

The defendant’s husband sexually abused the defendant’s daughter. (The husband was not the daughter’s biological father, but he had adopted her after he married her mother.) The daughter told an aunt about the abuse. This led to law enforcement and DSS investigations. However, the defendant initially did not believe her daughter and instead pressured her to recant her allegations. Even after walking in on the abuse in progress, the defendant sought to prevent her daughter from cooperating with authorities. The defendant was charged with (a) being an accessory after the fact to sexual activity by a substitute parent, based on her failure to report the abuse that she personally observed; (b) felony obstruction of justice for pressuring her daughter to recant; and (c) felony obstruction of justice for denying law enforcement and DSS access to her daughter during the investigation. She was convicted on all counts and appealed, arguing that the evidence was insufficient to support each conviction. The case eventually reached the state supreme court, which ruled: (1) There was insufficient evidence to support the accessory after the fact conviction. “[T]he indictment alleged that [the defendant] did not report [her husband’s] sexual abuse of [her daughter, and] a mere failure to report is not sufficient to make someone an accessory after the fact under North Carolina law.” The court distinguished failure to report a crime from affirmative concealment of a crime. The court also “decline[d] to consider any of defendant’s other acts not alleged in this indictment” that might have supported the accessory after the fact charge. (2) There was sufficient evidence to support the defendant’s conviction of obstruction of justice for denying the authorities access to the daughter during the investigation. The court noted that the defendant interrupted one interview of the daughter by investigators, was present and “talked over” the daughter in several others, and generally “successfully induced [the daughter] to refuse to speak with investigating officers and social workers.” The court remanded the matter to the court of appeals for further consideration of whether there was sufficient evidence that the obstruction was felonious by virtue of an intent to deceive or defraud. (The other count of obstruction of justice, for pressuring the daughter to recant, had been affirmed by the court of appeals and was not before the supreme court.) Two dissenting Justices would have found sufficient evidence of accessory after the fact.

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.

(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of accessory after the fact to murder where the defendant gave eight different written statements to authorities providing a wide array of scenarios surrounding the victim’s death. In his statements the defendant identified four different individuals as being the perpetrator. He also admitted that he had not been truthful to investigators. The court concluded: “The jury could rationally have concluded that his false statements were made in an effort to shield the identity of the actual shooter.” The court noted that competent evidence suggested that the defendant knew the identity of the shooter and was protecting that person, including knowledge of the scene that could only have been obtained by someone who had been there and statements made by the defendant to his former girlfriend. Additionally, the defendant admitted to officers that he named one person “as a block” and acknowledged that his false statement made the police waste time. (2) No double jeopardy violation occurred when the trial court sentenced the defendant for obstruction of justice and accessory after the fact arising out of the same conduct. Comparing the elements of the offenses, the court noted that each contains an element not in the other and thus no double jeopardy violation occurred.

In an accessory after the fact case the evidence was sufficient to establish that the defendant knew that a gun he had hidden was used to commit a murder.

The trial court erred in failing to arrest judgment on the defendant’s conviction for accessory after the fact to second-degree burglary. A defendant cannot be both a principal and an accessory to the same crime.

(1) The State presented sufficient evidence of accessory after the fact to a second-degree murder perpetrated by Stevons. After Stevons shot the victim, the defendant drove Stevons away from the scene. The victim later died. The court rejected the defendant’s argument that because he gave aid after the victim had been wounded but before the victim died, he did not know that Stevons had committed murder. It concluded that because the defendant knew that Stevons shot the victim at close range, a jury could reasonably infer that the defendant knew that the shot was fatal. (2) The State presented sufficient evidence of accessory after the fact to armed robbery when it showed both that an armed robbery occurred and that the defendant rendered aid after the crime was completed. The court rejected the defendant’s argument that the robbery was not complete until the defendant arrived at a safe place, concluding that a taking is complete once the thief succeeds in removing the stolen property from the victim’s possession. (3) Although a mere presence instruction may be appropriate for aiding and abetting or accessory before the fact, such an instruction is not proper for accessory after the fact and thus the trial judge did not err by declining to give this instruction.

A defendant may not be convicted of second-degree murder and accessory after the fact to first-degree murder. The offenses are mutually exclusive.

The defendant could be convicted of accessory after the fact to assault with a deadly weapon with intent to kill inflicting serious injury even if the principal pled guilty to a lesser offense of that assault.

Double jeopardy prohibited convictions of both accessory after fact to first-degree murder and accessory after the fact to first-degree kidnapping when the jury could have found that accessory after fact of first-degree murder was based solely on kidnapping under the felony murder rule. The jury’s verdict did not indicate whether it found first-degree murder based on premeditation and deliberation or felony murder based on first-degree kidnapping, or both. The court arrested judgment on the defendant’s convictions of accessory after the fact to first-degree kidnapping, reasoning that if a defendant cannot be convicted of felony murder and the underlying felony, a defendant could not be convicted of accessory after the fact to felony murder and accessory after the fact to the underlying felony.

State v. Melton, 371 N.C. 750 (Dec. 7, 2018)

On discretionary review of a unanimous, unpublished decision of the Court of Appeals, ___ N.C. App. ___, 801 S.E.2d 392 (2017), the court reversed, holding that the evidence was insufficient to sustain a conviction for attempted murder. The evidence showed that the defendant solicited an undercover officer—who he thought to be a hired killer--to kill his former wife. He gave the officer $2,500 as an initial payment, provided the officer details necessary to complete the killing, and helped the officer plan how to get his former wife alone and how to kill her out of the presence of their daughter. The defendant was arrested after he left his meeting with the officer; he was charged—and later convicted—of attempted murder and solicitation to commit murder.

          The court concluded that while the evidence was sufficient to show solicitation, it “fell short of showing the required overt acts for attempted first-degree murder.” Specifically, none of the defendant’s preparatory acts “amount to proof of overt acts amounting to attempt under our law.” In so ruling, the court determined that the Court of Appeals inappropriately looked to decisions from other jurisdictions to conclude that “although mere solicitation is insufficient to constitute attempt, specific acts taken to complete a murder-for-hire, such as those taken by [defendant] here, can satisfy the elements of attempted murder,” where the law regarding attempt in each of those jurisdictions is materially different from North Carolina law. Justice Morgan dissented, joined by Chief Justice Martin and Justice Newby.

State v. Baker, 369 N.C. 586 (June 9, 2017)

Reversing the Court of Appeals, the court held that the evidence was sufficient to support the defendant’s conviction for attempted first-degree rape of a child. The Court of Appeals had reversed the defendant’s conviction finding, in part, that the evidence supported only a conviction for completed rape, not an attempted rape. Citing precedent, the Supreme Court held that evidence of a completed rape is sufficient to support an attempted rape conviction.

The defendant was convicted of attempted first-degree murder and conspiracy to commit attempted first-degree murder. (1) The defendant argued that the latter charge is invalid because it alleges a non-existent crime. The defendant argued that an attempt requires that the act fail; therefore, it is an illogical impossibility and a legal absurdity to criminalize an agreement to commit a failed act, which in this case would be an agreement not to commit murder. The Court of Appeals rejected the argument, holding that under North Carolina law “failure” is not an element of attempted first-degree murder and that conspiracy to commit that offense is a cognizable charge. (2) The defendant argued that the evidence was insufficient to support attempted first-degree murder or conspiracy because the evidence showed only that he fired a pellet gun to try scare away the officer who was in pursuit. The Court found that the evidence was sufficient for the jury to find that the defendant fired a gun at the officer, not merely a pellet gun, with the intent to kill.

In this child sexual assault case, trial court did not err by denying the defendant’s motion to dismiss two charges of attempted statutory sex offense of a child by an adult. On appeal, the defendant argued that there was insufficient evidence of his intent to engage in a sexual act with the victim and of an overt act. The court disagreed. The case involved a scenario where the victim’s mother engaged in sexual acts with the victim to entice the defendant into a relationship with her. The first conviction related to the defendant’s attempted statutory sex offense with the victim in a vehicle, which occurred on or prior to 19 July 2013. While the victim sat between the defendant and her mother, the defendant tried to put his hands up the victim’s skirt, between her legs. The victim pushed the defendant away and moved closer to her mother. The defendant asserted that an intention to perform a sexual act cannot be inferred from this action. The court disagreed, noting, among other things, evidence that the defendant’s phone contained a video and photograph depicting the victim nude; both items were created prior to the incident in question. Additionally, the defendant admitted that the photo aroused him. Moreover, conversations of a sexual nature involving the victim occurred between the defendant and the victim’s mother on 9 July 2013. Messages of a sexual nature were also sent on 15 July 2013, including the defendant’s inquiries about sexual acts between the victim’s mother and the victim, and a request for explicit pictures of the victim. Additional communications indicated that the defendant wanted to see the victim in person. In a conversation on 19 July 2013, the defendant indicated that he had feelings for the victim and expressed the desire to “try something” sexual with the victim. In his interview with law enforcement, the defendant stated he would not have engaged in intercourse with the victim but would have played with her vagina by licking and rubbing it. This evidence supports a reasonable inference that the defendant attempted to engage in a sexual act with the victim when he placed his hands between her legs and tried to put his hand up her skirt. The evidence also supports the conclusion that his act was an overt act that exceeded mere preparation.

      The second conviction related to the defendant’s attempted statutory sex offense with the victim in a home. The court upheld this conviction, over a dissent. This incident occurred on 27 July 2013 when the defendant instructed the victim’s mother to have the victim wear a dress without underwear because he was coming over to visit. The defendant argued that the evidence was insufficient to show his intent to engage in a sexual act with the victim or an overt act in furtherance of that intention. The court disagreed. The evidence showed that the victim’s mother and the defendant had an ongoing agreement and plan for the victim’s mother to teach the victim to be sexually active so that the defendant could perform sexual acts with her. Evidence showed that the victim’s mother sent the defendant numerous photos and at least one video of the victim, including one that showed the victim’s mother performing cunnilingus on the victim on 26 July 2013. An exchange took place on 27 July 2013 in which the defendant indicated his desire to engage in that activity with the victim, and her mother’s desire to facilitate it. Specifically the defendant asked the victim’s mother whether she could get the victim to put on a dress without underwear because he was coming over to their home. Based on the context in which the defendant instructed the victim’s mother to have the victim wear a dress without underwear, there was substantial evidence of his intent to commit a sex offense against the victim. Furthermore, the defendant took overt actions to achieve his intention. The victim’s mother admitted that she and the defendant planned to train the victim for sexual acts with the defendant, and the defendant’s Facebook messages to the victim’s mother and his interview with law enforcement show that he agreed to, encouraged, and participated in that plan. The defendant’s instruction to dress the victim without underwear was more than “mere words” because it was a step in his scheme to groom the victim for sexual activity, as was other activity noted by the court.

The trial court did not err by denying the defendant’s motion to dismiss a charge of attempting to obtain property by false pretenses. After an officer learned about larcenies of Michael Kors items from a local store, he found an online posting for similar items in an online flea market. Using a fake name and address, the officer created a social media account and started a conversation with the seller, later determined to be the defendant, to discuss purchase of the items. The two agreed to meet. Unbeknownst to the defendant, the officer decided to set up an undercover purchase for one of the items to determine if it in fact was stolen from the local store or whether it was counterfeit merchandise. The undercover purchase occurred and the item in question was determined to be counterfeit. Noting that actual deceit is not an element of attempting to obtain property by false pretenses, the court held that the evidence was sufficient to sustain the conviction. The court rejected the defendant’s argument that because he did not actually represent the item as an authentic Michael Kors item, there was no evidence of a false pretense or intent to deceive. The court noted that the defendant advertised the items as Michael Kors bags and described them as such to the undercover officer. Additionally, the defendant purchased the bags from a warehouse in Atlanta that sold them for only a fraction of their worth, suggesting that the defendant knew the merchandise was counterfeit. The court also rejected the defendant’s argument that because the offense was completed, a conviction for attempt was improper. The offense only occurs if the property actually is obtained in consequence of the victim’s reliance on the false pretense. Here, because of the undercover operation, the officer was never deceived by the defendant’s misrepresentation.

The evidence was sufficient to convict the defendant of both attempted sex offense and attempted rape. The court rejected the defendant’s argument that the evidence was sufficient to permit the jury to infer the intent to commit only one of these offenses. During a home invasion, the defendant and his brother isolated the victim from her husband. One of the perpetrators said, “Maybe we should,” to which the other responded, “Yeah.” The defendant’s accomplice then forced the victim to remove her clothes and perform fellatio on him at gunpoint. The defendant later groped the victim’s breast and buttocks and said, “Nice.” At this point, the victim’s husband, who had been confined elsewhere, fought back to protect his wife and was shot. This evidence is sufficient for a reasonable jury to infer that the defendant intended to engage in a continuous sexual assault involving both fellatio (like his accomplice) and ultimately rape, and that this assault was thwarted only because the victim’s husband sacrificed himself so that his wife could escape.

Because attempted first-degree felony murder does not exist under the laws of North Carolina, the court vacated the defendant’s conviction with respect to this charge.

In a child sex case, the court held that the evidence was sufficient to support a charge of attempted first-degree statutory sexual offense. On the issue of intent to commit the crime, the court stated: “The act of placing one’s penis on a child’s buttocks provides substantive evidence of intent to commit a first degree sexual offense, specifically anal intercourse.” 

Where the evidence showed that the defendant committed the completed crime of felony larceny, the evidence was sufficient to support a conviction of the lesser charged offense of attempted felony larceny.

Because evidence of vaginal penetration was clear and positive, the trial court did not err by failing to instruct the jury on attempted rape.

The trial court did not err by denying the defendant’s motion to dismiss a charge of attempted first-degree murder where the defendant shot the victim in the abdomen. The defendant removed the victim’s cell phone from her reach, left the room, returned with a .45 caliber pistol, and shot her in the abdomen with a hollow point bullet. He then denied her medical assistance for approximately twelve hours. 

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

(1) The evidence was sufficient to prove attempted kidnapping. To prove an overt act for that crime, the State need not prove that the defendant was in the presence of his intended victim. In this case, the defendant and his accomplices stole get-away cars and acquired cell phones, jump suits, masks, zip ties, gasoline, and guns. Additionally, the defendant hid in the woods behind the home of his intended victim, waiting for her to appear, fleeing only upon the arrival of officers and armed neighbors. (2) The court rejected the defendant’s argument that the evidence of attempted kidnapping was insufficient because the restraint he intended to use on his victim was inherent to his intended robbery of her. The defendant planned to intercept the victim outside of her home and force her back into the house at gunpoint, bind her hands so that she could not move, and threaten to douse her with gasoline if she did not cooperate. These additional acts of restraint by force and threat provided substantial evidence that the defendant’s intended actions would have exposed the victim to greater danger than that inherent in the armed robbery itself. (3) The court rejected the defendant’s argument that to prove an overt act for attempted robbery the State had to prove that the defendant was in the presence of his intended victim. For the reasons stated in (1), above, the court found that there was sufficient evidence of an overt act. (4) The court rejected the defendant’s argument that because the evidence failed to show that he and his co-conspirators entered the property in question, they could not have attempted to enter her residence.

In a case involving federal drug and RICO conspiracy charges the Court held that allocating to the defendant the burden of proving withdrawal from the conspiracy does not violate the Due Process Clause. This rule remains intact even when withdrawal is the basis of a statute of limitations defense.

The defendant was the twin brother of another criminal defendant and was attending his brother’s trial for assault on a government official in Watauga County (itself the subject of a published opinion, here). Following the guilty verdict in his brother’s case, the defendant made comments to several jurors as they exited the courthouse. These included statements that the jurors “got it wrong,” that his brother was innocent, that the jurors had “ruined his [brother’s] life,” that he “hoped they slept well,” and similar remarks. Before those comments, the defendant’s brother’s girlfriend exited the courtroom visibly upset, and courthouse video footage showed the defendant briefly comforting her before approaching the jurors. The defendant was charged with six counts of intimating jurors and conspiracy to intimidate jurors with his brother and his brother’s girlfriend under G.S. 14-225.2(a)(2). That subsection provides that a defendant is guilty of juror harassment when he “threatens . . . or intimidates [a] former juror or spouse [of a juror] . . . as a result of the prior official action of [the] juror in a grand jury proceeding or trial.”  

The trial court denied pretrial motions challenging the jury intimidation statute as unconstitutional under the First Amendment, denied the motion to dismiss for insufficient evidence, and declined to instruct the jury on the definition of “intimidate.” The defendant was convicted of conspiracy to intimidate jurors at trial and acquitted on the other counts. A majority of the Court of Appeals rejected the defendant’s First Amendment arguments, finding the statute constitutional. The majority also found that the conviction was supported by sufficient evidence, and that the trial court did not err in failing to give the requested jury instructions (here). Chief Judge McGee dissented on each point. The Supreme Court agreed that the evidence was insufficient to support a conspiracy and reversed.

A criminal conspiracy is an agreement between two or more people to commit a crime with intent to carry out the agreement. While such agreement may be proven by circumstantial evidence, the evidence must show either an express agreement between the conspirators, or facts warranting an inference of the agreement. On the other hand, “[c]onspiracies cannot be established by mere suspicion, nor [by] evidence of mere relationship between the parties . . .” Slip op. at 8. The State’s evidence here raised no more than a conjecture of guilt, and the motion to dismiss for insufficient evidence should have been granted. “The record is almost entirely devoid of any interactions between defendant and [his brother] or defendant and [the girlfriend] from which the formation of any agreement can be inferred.” Id. at 13. The court acknowledged that “synchronized, parallel conduct” among defendants can support an inference of criminal agreement but rejected the State’s argument that such circumstances existed here. According to the court:

. . . [S]uch an inference would be far stronger where the conduct at issue is more synchronized, more parallel, and more clearly in furtherance of a crime. . .Moreover, while defendant was acquitted of the charges of harassment of a juror by threats or intimidation and we express no opinion on the sufficiency of the evidence with respect to those charges, the evidence was far from overwhelming. Put simply, this is not a situation like a drug transaction or bank robbery where it is evident that an unlawful act has occurred, and where the degree of coordination associated with those unlawful acts renders an inference of ‘mutual, implied understanding’ between participants far more reasonable. Id. 13-14 (citations omitted).

The matter was therefore reversed and remanded for the conviction to be vacated. In light of its holding, the court declined to consider the First Amendment challenges to the statute.

Justice Ervin dissented, joined by Justices Davis and Newby. According to the dissent, the majority failed to view the evidence in the light most favorable to the State, and the trial court should have been affirmed as to the sufficiency of evidence. Without expressing an opinion on the merits of the issue, the dissenters would have therefore proceeded to examine the defendant’s First Amendment challenges.

State v. Stimpson, 371 N.C. 470 (Sept. 21, 2018)

In a per curiam opinion, the court affirmed the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 807 S.E.2d 603 (2017). The defendant was charged with five indictments alleging five separate offenses of conspiracy to commit robbery arising from five separate incidents. The Court of Appeals held, over a dissent, that the trial court did not err by denying the defendant’s motion to dismiss four of the charges. On appeal, the defendant argued that there was only one agreement and thus only one conspiracy charge was proper. The majority disagreed, concluding, in part, that the random nature and happenstance of the robberies did not indicate a one-time, pre-planned conspiracy. It noted that the victims and crimes committed arose at random and by pure opportunity.

State v. Winkler, 368 N.C. 572 (Dec. 18, 2015)

On appeal in this drug case from an unpublished opinion by the court of appeals, the supreme court held that there was sufficient evidence to support a conviction for conspiracy to traffic in opium. Specifically, the court pointed to evidence, detailed in the opinion, that the defendant agreed with another individual to traffic in opium by transportation. The court rejected the defendant’s argument that the evidence showed only a “the mere existence of a relationship between two individuals” and not an unlawful conspiracy.

The defendant was convicted of armed robbery, conspiracy to commit armed robbery, felony breaking or entering, and conspiracy to commit breaking or entering in Watauga County. The offenses related to the attempted robbery of a drug dealer in an apartment in Boone. The jury convicted on all counts, and each conspiracy count was consolidated with the related substantive count for judgment.

(1) The defendant argued that the trial court erred in failing to dismiss one of the conspiracy counts. The Court of Appeals agreed. To convict on separate conspiracies, the State has the burden to show separate agreements. A single agreement to commit multiple offenses constitutes only one conspiracy. Factors relevant in determining the existence of multiple conspiracies include “the “nature of the agreement or agreements, the objectives of the conspiracies, the time interval between them, the number of participants, and the number of meetings . . .” Beck Slip op. at 11 (citation omitted). Here, the evidence showed only one agreement to rob drug dealers and thus only supported one conspiracy.

Where multiple conspiracy convictions are vacated, the court must identify the first substantive crime in determining which conviction to vacate. Here, the felony breaking or entering was the first substantive offense committed by the conspirators. The conviction for conspiracy to commit armed robbery was therefore vacated. According to the court:

As the felony breaking and entering was the first substantive crime committed by defendant (i.e., the ‘operative’ crime), because the conspiracy to commit felony breaking and entering was the ‘earlier of the conspiracy convictions’ insofar as defendant is concerned, and because the State failed to prove that defendant conspired with [the co-conspirators] in the weeks leading up to the crimes, we vacate defendant’s conviction for conspiracy to commit armed robbery . . . Id. at 14.

No resentencing was required, however, since the conspiracy to commit armed robbery was consolidated with the substantive robbery offense and the defendant was sentenced within the presumptive range for that crime. 

(2) The trial court did not abuse its discretion in failing to provide the jury with a transcript of a witness’s testimony. No party objected to the trial court’s refusal in response to the jury’s request. Under G.S. 15A-1233(a), it is within the trial court’s discretion to allow reexamination of the evidence. Prejudice from the denial of a jury request to reexamine evidence will only be considered where the trial court fails to acknowledge its discretion in responding to the request. The trial court here recognized the matter as within its discretion. Consequently, the denial of the request for a transcript was neither an abuse of discretion nor prejudicial error.

Judge Inman concurred without separate opinion. Judge Tyson concurred in part and dissented in part. He would have found no error with the conviction for conspiracy to commit armed robbery.

A longstanding feud and several prior altercations culminated in the defendant and an accomplice ambushing two victims as they were driving away from the home of a woman who helped set the victims up. As the victims’ vehicle left the woman’s home and approached an intersection, the accomplice was standing in the middle of the road and began shooting at the driver’s side of the victims’ car. The defendant was also present and shot at the passenger side of the car.  The diver of the vehicle was killed, but the passenger survived unharmed. The defendant was identified as a suspect, interviewed, and arrested. In the defendant’s first interview with police, he claimed that he had been at home all day when the murder occurred. In his second interview, the defendant admitted he lied in his first interview and admitted that he was present at the scene and fired at the car, but maintained that he was firing in self-defense and not aiming at the vehicle.

The defendant was charged with first-degree murder of the driver, attempted murder of the passenger, conspiracy to commit first-degree murder of the passenger, and discharging a firearm into an occupied vehicle in operation. Following a jury trial, the defendant was convicted of all charges. The jury found the defendant guilty of murder based on both lying in wait and felony murder, but acquitted as to malice, premeditation, and deliberation. Judgment on the discharging a firearm offense was arrested, and the defendant was sentenced to life in prison.

On appeal, the defendant argued that the evidence at trial was insufficient to support his convictions for murder, attempted murder, or conspiracy. The Court of Appeals disagreed, and held that there was sufficient evidence to support all the charges. Even though the state offered the defendant’s initial exculpatory statement into evidence, that statement was inconsistent with other evidence of the defendant’s guilt, such as his admissions to being at the scene and firing a gun, and forensic evidence that showed he fired 13 shots at the passenger side of the vehicle. The bullet that killed the driver came from the other side of the car, but there was sufficient evidence to show that the defendant and the other shooter were acting in concert and engaged in the felony of discharging a firearm into an occupied vehicle. Evidence cited by the court included the longstanding feud that led to the murder, the close friendship between the defendant and the other shooter, incriminating text messages regarding their plan, the coordinated nature of both the set-up to bring the victims to a specific location and the resulting ambush, and the assailants’ joint flight afterward. Based on all the evidence, a reasonable juror could conclude that the two shooters were lying in wait for the victims, and they were acting in concert when they opened fire on the occupied vehicle. Although the passenger in the vehicle survived, the court held that the evidence was likewise sufficient to find that the defendant and his accomplice intended to murder the passenger, made an agreement to do so, and performed an overt act to carry out that intent, thus supporting the convictions for both attempted murder and conspiracy.

The defendant was indicted for attempted first-degree murder, robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and other offenses. The State alleged that the defendant shot a man and his wife, Bruce and Joanne Parker, as they were getting into their car in a darkened Charlotte parking lot. After shooting Mr. Parker, the defendant, who was accompanied by a male and female companion, took Mr. Parker’s wallet and cell phone.

Off-duty officers arrived on the scene shortly after the couple was shot and saw the defendant and his two companions leaving the scene in the defendant’s car. Mr. Parker identified the defendant as the person who shot him. The officers gave chase, and the defendant’s male companion, who was driving, crashed the car. The defendant and his companions ran from the car. The driver was apprehended. The defendant and his female companion ran into a parking garage, where they were captured on surveillance footage, but were not apprehended by officers. On the driver’s seat floorboard of the crashed car, officers found the gun used to shoot the couple, the husband’s cell phone and wallet, and a purse and driver’s license belonging to the defendant’s female companion. Forty-five minutes later, the defendant called law enforcement officers to report that he had been carjacked earlier in the evening.

A few days after the shooting, an officer came to Mr. Parker’s hospital room and showed him a photographic lineup. The defendant’s picture was in the lineup, but Mr. Parker identified another person as the shooter. During trial, Mr. Parker testified that he was able to make out the shooter’s face during the attack. He then, without objection, identified the defendant in the courtroom, stating that the defendant was “pretty much the same man as he was that night,” only that he “appeared a little bit thinner.”

(1) On appeal, the defendant argued that the trial court erred by denying his motion to dismiss because there was insufficient evidence both that he was the perpetrator of the offenses and that there was a conspiracy to commit robbery with a dangerous weapon. The Court of Appeals rejected this argument, noting that Mr. Parker identified the car and the defendant as the shooter at the scene; that the officers saw the defendant leaving the scene and the car he was in; that Mr. Parker gave a description of the defendant that same night; that the description matched a person seen on surveillance after the car crashed; that the defendant was the owner of the car; and that Mr. Parker identified the defendant as the shooter in court. The Court also rejected the defendant’s insufficiency of the evidence argument regarding the conspiracy. The Court relied on State v. Lamb, 342 N.C. 151 (1995), and State v. Miles, 267 N.C. App. 78 (2019), in concluding that there was sufficient evidence from which a reasonable juror could conclude that the defendant acted in coordination with the other occupants of the vehicle to rob the Parkers with a dangerous weapon.

(2) The defendant next argued that the trial court erred by sustaining the State’s objection to the defendant’s question concerning a civil lawsuit filed by the Parkers against the owner of the parking lot alleging inadequate security. The defendant contended that the civil lawsuit was relevant because it showed that the Parkers had an interest in the outcome of the criminal prosecution. The Court has previously held that “where a witness for the prosecution has filed a civil suit for damages against the criminal defendant himself, the pendency of the suit is admissible to impeach the witness by showing the witness’s interest in the outcome of the criminal prosecution.” State v. Dixon, 77 N.C. App. 27, 31– 32 (1985); State v. Grant, 57 N.C. App. 589, 591 (1982). The Court concluded that because the civil suit was not filed against the defendant and because it was not necessary for the Parkers to prove in the civil suit that the defendant was the assailant, the pendency of the civil suit did not show Mr. Parker’s interest in the outcome of the criminal prosecution and was therefore not admissible to impeach the witness.

(3) The defendant’s final argument was that the trial court plainly erred by failing to exclude Mr. Parker’s in-court identification, which the defendant did not object to at trial. The defendant contended that the in-court identification was tainted by Mr. Parker’s exposure to media coverage of the case, his filing of a civil lawsuit that named the defendant as the assailant, the lapse of time, and his identification of someone other than the defendant in the photo lineup. The Court of Appeals concluded that these factors alone did not trigger due process concerns and that the alleged defects of the in-court identification were issues of credibility for the jury to resolve. The Court explained that absent any indication that the in-court identification was tainted by an impermissibly suggestive pre-trial identification procedure, there was no error, let alone plain error, in admitting Mr. Parker’s in-court identification.

The defendant was convicted of first-degree murder based on felony murder, attempted first-degree murder, felonious discharge of a firearm into an occupied vehicle in operation, and two counts of conspiracy to commit first-degree murder. The defendant’s brother was the shooter and was convicted in a separate case. (1) On appeal the defendant argued that the trial judge committed plain error by admitting the following evidence. (A) A witness testified that the defendant knew that the defendant’s brother intended to shoot the victims. The Court found that the testimony was inadmissible because a witness may not testify to another person’s mind or purpose without personal knowledge of the person’s mind or purpose, a foundation not laid by the State. The Court concluded, however, that erroneous admission of the testimony did not have a probable impact on the jury’s finding that the defendant counseled and knowingly aided the shooting by assisting in luring the victims to the place where the defendant’s brother shot them. (B) Two witnesses who were not called as experts, one of whom was a detective, testified that the defendant concealed evidence about the planned shooting by using a smartphone texting app. Applying Rule 701 of the North Carolina Rules of Evidence, which requires that opinion testimony by lay witnesses be rationally based on a witness’s perception and helpful to the jury, the Court found that the State failed to lay a foundation showing that the witnesses were familiar with how the use of such apps affects cell phone records. The Court concluded that the erroneous admission of the testimony was not plain error because other evidence showed that the defendant was communicating with her brother via cellphone, that her brother destroyed his cellphone, and there were no records of their communications, which the jury could have viewed in a manner disadvantageous to the defendant. (C) A witness testified to the good character of one of the victims— that he was kind, protective, and nonviolent, among other qualities. The Court held that this testimony was inadmissible under Rule 404(a)(2) because it was not offered to rebut any evidence by the defendant that the victim was the first aggressor in the altercation. The Court concluded that the erroneous admission of the testimony was not plain error given other evidence consistent with the defendant’s guilt. (2) The defendant argued, the State conceded, and the Court found that the trial judge erred in allowing the jury to convict her of two counts of conspiracy because the evidence showed a single conspiracy to shoot two people. The Court therefore vacated one of the conspiracy convictions and remanded for resentencing. One judge concurred in the result only.

The defendant was convicted of attempted first-degree murder and conspiracy to commit attempted first-degree murder. (1) The defendant argued that the latter charge is invalid because it alleges a non-existent crime. The defendant argued that an attempt requires that the act fail; therefore, it is an illogical impossibility and a legal absurdity to criminalize an agreement to commit a failed act, which in this case would be an agreement not to commit murder. The Court of Appeals rejected the argument, holding that under North Carolina law “failure” is not an element of attempted first-degree murder and that conspiracy to commit that offense is a cognizable charge. (2) The defendant argued that the evidence was insufficient to support attempted first-degree murder or conspiracy because the evidence showed only that he fired a pellet gun to try scare away the officer who was in pursuit. The Court found that the evidence was sufficient for the jury to find that the defendant fired a gun at the officer, not merely a pellet gun, with the intent to kill.

The evidence showed that the defendant was in a car with two other men that arrived in a church parking lot near the victim’s house at the same time as another car driven by a female. The female then drove to the victim’s home and beeped her car horn. Shortly after the victim came out of his house and  told the woman to leave, the defendant approached the victim with a gun and said, “Don’t f**kin’ move.” After the victim and the defendant exchanged gunfire, the defendant and two other man ran from the victim’s house. The defendant got back into the car in the parking lot. This evidence was sufficient to show that the defendant agreed with at least one other person to commit robbery with a dangerous weapon. Defendant’s actions were substantial evidence of his intent to rob the victim, and his arrival at the victim’s home with the weapon was an overt act to carry out his intentions.

The evidence was sufficient to support a charge of conspiracy to commit armed robbery. On appeal, the defendant argued that there was insufficient evidence of an agreement to commit the robbery. Here, the victim identified the defendant and others as the individuals who robbed him. Additionally, the defendant confirmed to a detective that his accomplice’s statement that the robbery was in retaliation for the victim’s robbery of another person was accurate. This was sufficient evidence of a conspiracy.

(1) The evidence was sufficient to support a conviction for conspiracy to traffic in opium by sale and delivery. The defendant was indicted on multiple drug offenses arising from three separate controlled buys. On appeal the defendant argued that the State failed to present evidence, aside from an accomplice’s mere presence at the second control buy, that the defendant conspired with the accomplice to traffic in opium. The court rejected this argument, noting, among other things that the defendant brought the accomplice to the drug transaction location for all three controlled buys. The location of the second exchange was one the defendant did not like and the sale took place at or near dark. The drugs were maintained in the same vehicle as the accomplice and the defendant exchanged the drugs and counted the money in front of him. From this evidence, it would be reasonable for the jury to infer that the accomplice was present at the defendant’s behest to provide safety and comfort to the defendant during the transaction. (2) The evidence supported multiple conspiracy charges. The court rejected the defendant’s argument that the evidence showed only one agreement to engage in three separate transactions. It noted that the first two transactions were separated by one month and that approximately three months passed between the second and third buys. There was no evidence suggesting that the defendant planned the transactions as a series. Rather, the informant or the detective initiated each. 

The evidence was sufficient to support a charge of conspiracy to possess stolen goods, a pistol. After the defendant took the pistol and other items from the victims’ purses, the pistol was found in the field near a residence. The defendant’s alleged accomplice was present at the residence and admitted to officers that he was working with the defendant. This occurred after the defendant called the alleged accomplice from jail. From this evidence a jury could reasonably infer that the accomplice conspired with the defendant to possess the pistol.

There was sufficient evidence of conspiracy to commit armed robbery. Although circumstantial, the evidence supported the inference that the defendant and his accomplices agreed to commit the robbery and other unlawful acts.

The State presented insufficient evidence to show that the defendant entered into an agreement to commit common law robbery. The mere fact that the crime the defendant allegedly conspired with others to commit took place does not, without more, prove the existence of a conspiracy. Lacking here was evidence that the defendant conspired to take the property by violence or fear. In fact, his accomplice’s use of violence or fear was unknown to the defendant until after the robbery was completed.

The trial court did not err by denying the defendant’s motion to dismiss a charge of conspiracy to sell methamphetamine, given the substantial evidence of an implied understanding among the defendant, Fisher, and Adams to sell methamphetamine to the informants. The informants went to Fisher to buy the drugs. The group then drove to the defendant’s house where Fisher asked the defendant for methamphetamine. The defendant said that he didn’t have any but could get some. The defendant led Fisher and Adams to the trailer where the drugs were purchased.

The trial court properly determined that a charge of conspiracy to manufacture methamphetamine was a Class C felony. The court rejected the defendant’s argument that G.S. 14-2.4(a) required punishment as a Class D felony (“Unless a different classification is expressly stated, a person who is convicted of a conspiracy to commit a felony is guilty of a felony that is one class lower than the felony he or she conspired to commit[.]”). Here, G.S. 90-98 requires that conviction for conspiracy to manufacture methamphetamine is punished at the same level as manufacture of methamphetamine.

Finding State v. Euceda-Valle, 182 N.C. App. 268, 276 (2007), controlling, the court held that there was insufficient evidence that the defendant and another person named Hall conspired to sell and deliver cocaine. The evidence showed only that the drugs were found in a car driven by Hall in which the defendant was a passenger.

State v. Davis, 236 N.C. App. 376 (Sept. 16, 2014)

The evidence was sufficient to show a drug trafficking conspiracy where there was evidence of an implied agreement between the defendant and his accomplice. The defendant was present at the scene and aware that his accomplice was involved producing methamphetamine and there was sufficient evidence that the defendant himself was involved in the manufacturing process. The court concluded: “Where two subjects are involved together in the manufacture of methamphetamine and the methamphetamine recovered is enough to sustain trafficking charges, we hold the evidence sufficient to infer an implied agreement between the subjects to traffic in methamphetamine by manufacture and withstand a motion to dismiss.”

The evidence was insufficient to support trafficking by conspiracy convictions against both defendants. The drugs were found in secret compartments of a truck. Defendant Villalvavo was driving the vehicle, which was owned by a passenger, Velazquez-Perez, who hired Villalvavo to drive the truck. While evidence regarding the truck’s log books may have been incriminating as to Velazquez-Perez, it did not apply to Villalvavo, who had not been working for Velazquez-Perez long and had no stake in the company or control over Velazquez-Perez.

State v. Fish, 229 N.C. App. 584 (Sept. 17, 2013)

In a case in which the defendant was charged with conspiracy to commit felony larceny, the trial court did not err by denying the defendant’s motion to submit a jury instruction on conspiracy to commit misdemeanor larceny. The court determined that evidence of the cumulative value of the goods taken is evidence of a conspiracy to steal goods of that value, even if the conspirators’ agreement is silent as to exact quantity. Here, the evidence showed that the value of the items taken was well in excess of $1,000.

There was sufficient evidence of a conspiracy to commit armed robbery. The victim was approached from behind by both defendants while walking alone. One defendant held the gun while the other reached for her cellphone. Although not showing an express agreement between defendants, these circumstances sufficiently establish an implied agreement to rob the victim with a firearm.

The evidence was sufficient to show a conspiracy to commit a robbery with a dangerous weapon. The defendant argued that there was no express agreement to use a dangerous weapon. The court held, in part, that there was an implied understanding to use such a weapon.

(1) The evidence was sufficient to support a charge of conspiracy to traffic in cocaine by possession. A detective arranged for a cocaine sale. The defendant and an individual named Blanco arrived at the preset location and both came over to the detective to look at the money. The defendant and Blanco left together, with the defendant telling Blanco to wait at a parking lot for delivery of the drugs. Later, the defendant told Blanco to come to the defendant’s house to get the drugs. Blanco complied and completed the sale. (2) The court rejected the defendant’s argument that verdicts finding him guilty of conspiracy to commit trafficking by possession but not guilty of trafficking by possession were legally inconsistent because both crimes required the defendant to have possession. Because conspiracy to traffic by possession does not include possession as an element, the fact that the defendant was convicted of that crime and not convicted of trafficking by possession does not present any inconsistency, legal or otherwise.

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

(1) The evidence was insufficient to support two charges of conspiracy to commit armed robbery. Having failed to achieve the objective of the conspiracy on their first attempt, the defendant and his co-conspirators returned the next day to try again. When the State charges separate conspiracies, it must prove not only the existence of at least two agreements, but also that they were separate. There is no bright-line test for whether multiple conspiracies exist. The essential question is the nature of the agreement(s), but factors such as time intervals, participants, objectives, and number of meetings must be considered. Applying this analysis, the court concluded that only one agreement existed. In both attempts, the intended victim and participants were the same; the time interval between the two attempts was approximately 36 hours; on the second attempt the group did not agree to a new plan; and while the co-conspirators considered robbing a different victim, that only was a back-up plan. The court rejected the State’s argument that because the co-conspirators met after the first attempt, acquired additional materials, made slight modifications on how to execute their plan, and briefly considered robbing a different victim, they abandoned their first conspiracy and formed a second one. (2) The trial judge committed plain error by failing to instruct the jury on all elements of conspiracy to commit armed robbery. The judge instructed the jury that armed robbery involved a taking from the person or presence of another while using or in the possession of a firearm. The judge failed to instruct on the element of use of the weapon to threaten or endanger the life of the victim.

In a conspiracy to commit robbery case, the evidence was sufficient to establish a mutual, implied understanding between the defendant and another man to rob the victim. The other man drove the defendant to intercept the victim; the defendant wore a ski mask and had a gun; after the defendant hesitated to act, the other person assaulted the victim and took his money; and the two got into the car and departed.

The trial court did not err by denying the defendant’s motion to dismiss a charge of conspiracy to discharge a firearm into occupied property. The defendant, Ray, Johnson, and Phelps left a high school basketball game because of the presence of rival gang members. As they left, the defendant suggested that he was going to kill someone. A gun was retrieved from underneath the driver’s side seat of Johnson’s vehicle and Johnson let Ray drive and the defendant to sit in the front because the two “were about to do something.” Ray and the defendant argued over who was going to shoot the victim but in the end Ray drove by the gym and the defendant fired twice at the victim, who was standing in front of the gym. The court rejected the defendant’s argument that the evidence failed to show an agreement to discharge the firearm into occupied property, noting that the group understood and impliedly agreed that the defendant would shoot the victim as they drove by, the victim was standing by the gym doors, and there was a substantial likelihood that the bullets would enter or hit the gym.

Evidence of the words and actions of the defendant and others, when viewed collectively, provided sufficient evidence of an implied agreement to assault the victim. The court noted that the spontaneity of the plan did not defeat the conspiracy and that a meeting of the minds can occur when a party accepts an offer by actions.

There was sufficient evidence to support the defendant’s conviction of conspiracy to traffic in marijuana; the fact that the state took a voluntary dismissal of the conspiracy charge against the co-conspirator was irrelevant to that determination.

State v. Mello, 200 N.C. App. 561 (Nov. 3, 2009) aff’d per curiam, 364 N.C. 421 (Oct 8 2010)

A city ordinance prohibiting loitering for the purpose of engaging in drug-related activity is unconstitutionally overbroad. Additionally, one subsection of the ordinance is void for vagueness, and another provision violates the Fourth Amendment by allowing the police to arrest in the absence of probable cause.

The Stolen Valor Act, 18 U.S.C. § 704, is unconstitutional under the First Amendment. The Act makes it a federal crime to lie about having received a military decoration or medal.

Snyder v. Phelps, 562 U.S. 443 (Mar. 2, 2011)

The First Amendment shields members of a church from tort liability for picketing near a soldier’s funeral. A jury held members of the Westboro Baptist Church liable for millions of dollars in damages for picketing near a soldier’s funeral service. The picket signs reflected the church’s view that the United States is overly tolerant of sin and that God kills American soldiers as punishment. The picketing occurred in Maryland. Although that state now has a criminal statute in effect restricting picketing at funerals, the statute was not in effect at the time the conduct at issue arose. Noting that statute and that other jurisdictions have enacted similar provisions, the Court stated: “To the extent these laws are content neutral, they raise very different questions from the tort verdict at issue in this case. Maryland’s law, however, was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional.” Slip Op. at 11. [Author’s note: In North Carolina, G.S. 14‑288.4(a)(8), criminalizes disorderly conduct at funerals, including military funerals. In a prosecution for conduct prohibited by that statute, the issue that the U.S. Supreme Court did not have occasion to address may be presented for decision].

Federal statute enacted to criminalize the commercial creation, sale, or possession of certain depictions of animal cruelty was substantially overbroad and violated the First Amendment.

The trial court did not err by denying the defendant’s motion to dismiss first-degree murder charges where the victim was in utero at the time of the incident but was born alive and lived for one month before dying.

Because of a procedural error by the State, the court declined to address an issue regarding the born alive rule presented in the State’s appeal of a trial court’s order dismissing capital murder charges. The defendant shot a woman who was pregnant with twins. Although the bullet did not strike the fetuses, the injury caused a spontaneous abortion. While both twins had heartbeats, experts said that they were pre-viable.

(1) 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. (2) The court also rejected the defendant’s argument that under G.S. 14-17, he only could have been convicted of second-degree murder for his conduct.

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.

The defendant was convicted by a jury of first-degree murder under the felony-murder rule. The underlying felony was statutory rape of a child under 13. And yet the jury acquitted the defendant of the charge of statutory rape of a child under 13.  The defendant appealed, arguing that statutory rape of a child under 13 could not support a felony-murder conviction because it lacks the necessary intent to support such a charge. He also argued that because the jury acquitted him of the predicate felony, his first-degree murder conviction must be vacated. The Court of Appeals rejected both arguments.

(1) The Court of Appeals determined that while the offense of statutory rape does not require that the defendant intended to commit a sexual act with an underage person, it does require that the defendant intend to commit a sexual act with the victim. The Court held that this intent satisfies the intent required for a crime to serve as the basis for a felony-murder charge. The Court distinguished the sort of intent required to engage in vaginal intercourse with a victim from the culpable negligence required to commit the offense of assault with a deadly weapon inflicting serious injury based on driving a vehicle while impaired, which the court held in State v. Jones, 353 N.C. 159 (2000), was insufficient to support a felony-murder charge. Statutory rape requires that the person be purposely resolved to participate in the conduct that comprises the criminal offense.

(2) The Court of Appeals determined that the jury verdicts finding the defendant (a) guilty of felony murder with statutory rape as the underlying felony but (b) not guilty of statutory rape were inconsistent but were not legally contradictory or, in other words, mutually exclusive. The Court of Appeals reasoned that a jury could rely on the act of committing statutory rape to support a felony murder conviction without also having a conviction of statutory rape. Indeed, the State could proceed to trial on such a felony murder theory without also charging statutory rape.

The Court noted that a defendant is not entitled to relief for a merely inconsistent verdict as it is not clear in such circumstances “‘whose ox has been gored.’” (Slip op. at ¶ 44 (quoting United States v. Powell, 469 U.S. 57, 65 (1984)). The jury may have thought the defendant was not guilty. Equally possibly, it may have reached an inconsistent verdict through mistake, compromise, or lenity. The defendant receives the benefit of the acquittal, but must accept the burden of conviction.

Rejecting the defendant’s ineffective assistance of counsel claim with respect to his first-degree felony murder conviction, the court also rejected the proposition that a felony murder conviction cannot be predicated on a felony of shooting into occupied property where that felony also was the cause of the victim’s death. Reviewing the relevant case law, the court concluded:

[I]t is clear that neither the Supreme Court nor this Court has ever expressly recognized an exception to the felony murder rule for the offense of discharging a weapon into occupied property. At most, North Carolina courts have recognized a very limited “merger doctrine” that precludes use of the felony murder rule in situations where the defendant has committed one assault crime against one victim and the State seeks to use that assault as the predicate felony for a felony murder conviction.

In this case where the defendant was convicted of felony murder with the underlying felony being felony child abuse, the court rejected the defendant’s argument that the merger doctrine prevents conviction of first-degree felony murder when there is only one victim and one assault. Although a defendant cannot be sentenced for both the underlying felony and first-degree felony murder, that did not occur here.

(1) The evidence was sufficient to submit felony murder to the jury on the basis of felony larceny with a deadly weapon being the underlying felony. The court rejected the defendant’s argument that the State failed to show that a beer bottle found at the crime scene was used as a “deadly weapon” within the meaning of the homicide statute, G.S. 14-17. The State’s evidence showed, among other things that the murder victim’s injuries could have been caused by the bottle. Thus, the State presented sufficient evidence that the broken beer bottle constituted a deadly weapon. The court also rejected the defendant’s argument that the State failed to prove that the defendant used the broken bottle during the commission of the felonious larceny, noting that the evidence showed that after incapacitating the victim with the broken bottle the defendant stole the victim’s vehicle. Finally, the court rejected the defendant’s argument that the State failed to prove that the killing was committed in the perpetration of the larceny, finding sufficient evidence of a continuous transaction. (2) Where the defendant was convicted of felony murder with the underlying felony being felony larceny, the trial court erred by failing to arrest judgment on the underlying felony.

State v. Juarez, 243 N.C. App. 466 (Oct. 6, 2015) rev’d on other grounds, 369 N.C. 351 (Dec 21 2016)

Felony discharging of a firearm into an occupied vehicle can serve as an underlying felony supporting a charge of felony murder.

In this first-degree murder case, the court rejected the defendant’s argument that there was an insufficient relationship between the felony supporting felony-murder (discharging a firearm into occupied property) and the death. The law requires only that the death occur “in the perpetration or attempted perpetration” of a predicate felony; there need not be a causal “causal relationship”’ between the felony and the homicide. All that is required is that the events occur during a single transaction. Here, the defendant stopped shooting into the house after forcing his way through the front door; he then continued shooting inside. The defendant argued that once he was inside the victim attempted to take his gun and that this constituted a break in the chain of events that led to her death. Even if this version of the facts were true, the victim did not break the chain of events by defending herself inside her home after the defendant continued his assault indoors.

In this child homicide case, the trial court did not err by denying the defendant’s motion to dismiss a charge of felony-murder based on an underlying felony child abuse. Prior to the incident in question the victim was a normal, healthy baby. After having been left alone with the defendant, the victim was found unconscious, unresponsive, and barely breathing. The child’s body had bruises and scratches, including unusual bruises on her buttocks that were not “typical” of the bruises that usually resulted from a fall and a recently inflicted blunt force injury to her ribs that did not appear to have resulted from the administration of CPR. An internal examination showed extensive bilateral retinal hemorrhages in multiple layers of the retinae, significant cerebral edema or swelling, and extensive bleeding or subdural hemorrhage in the brain indicating that her head had been subjected to a number of individual and separate blunt force injuries that were sufficiently significant to damage her brain and to cause a leakage of blood. Her injuries, which could have been caused by human hands, did not result from medical treatment or a mere fall from a couch onto a carpeted floor.

The evidence was sufficient to support a first-degree felony-murder conviction when the underlying felony was armed robbery and where the defendant used the stolen item—a .357 Glock handgun—to commit the murder and the two crimes occurred during a continuous transaction.

The trial court properly submitted felony-murder to the jury based on underlying felony of attempted sale of a controlled substance with the use of a deadly weapon. The defendant and an accomplice delivered cocaine to the victim. Approximately one week later, they went to the victim’s residence to collect the money owed for the cocaine and at this point, the victim was killed. At the time of the shooting, the defendant was engaged in an attempted sale of cocaine (although the cocaine had been delivered, the sale was not consummated because payment had not been made) and there was no break in the chain of events between the attempted sale and the murder.

On March 13, 2016, the defendant was out at a bar in Greensboro with his nephews and several other people to celebrate a friend’s birthday. As they were leaving the bar around 2:00 a.m., another group of men approached and one of them asked a woman in the defendant’s group if she would perform sexual acts for money. The defendant’s group rebuked the other man, and the defendant’s group left the parking lot in two vehicles. When they were stopped at a red light, a vehicle occupied by the second group of men pulled up next to the vehicle in which the defendant was riding. One of the men in the second group smashed a bottle against the defendant’s vehicle, and the second group pursued the defendant’s group at high speed as they drove away. The vehicles all pulled into a nearby parking lot, where two off-duty police officers were parked in a patrol vehicle. As the occupants exited their vehicles, a large fight broke out involving different clusters of people, and one person (“Jones”) was killed. Additional officers responded to the scene and attempted to break up the multiple altercations. None of the officers saw a weapon being used, but Jones and several other individuals had suffered deep lacerations, and their statements to the officers on scene indicated the defendant was the one who cut them with a knife. As the fights were being broken up, an officer saw the defendant walking back towards a vehicle, ignoring commands to stop, and making a furtive movement to throw something into the car. Officers checked the car and found a bloody knife on the driver’s seat. The defendant was searched and also found to have “bath salts” in his pocket. The medical examiner concluded that stab wounds consistent with the knife found in the car caused Jones’ death. Additional evidence indicating that the defendant was the person who mortally wounded Jones included blood found on the defendant’s shoes and clothing, the defendant’s close proximity to the wounded individuals, the defendant’s DNA on the knife, and the defendant’s statements to a private investigator that others were stomping and hitting him so he pulled a knife out of his pocket and “came out swinging.”

The defendant was charged with first-degree murder, possession of 4-chloromethcathinone, and attaining habitual felon status. At the conclusion of a jury trial on the substantive charges, the jury was instructed on first-degree murder, second-degree murder, voluntary manslaughter, and the controlled substance offense. The jury convicted the defendant of voluntary manslaughter and drug possession. On appeal, the defendant argued that the trial court should have granted his motion to dismiss for insufficient evidence based on self-defense (or that he received ineffective assistance of counsel if that argument was deemed not adequately preserved), and that the trial court erred in its jury instruction regarding voluntary manslaughter.

Because the jury only convicted the defendant of manslaughter, rather than first- or second-degree murder, and because the state did not advance the theories that the defendant had either killed in the heat of passion or was the initial aggressor, the appellate court concluded that the only issue it needed to determine was whether the state’s evidence was sufficient to withstand a motion to dismiss a charge of voluntary manslaughter premised on a killing that would be second-degree murder (committed with malice) but for the fact that the defendant had an imperfect claim of self-defense (based on his use of excessive force). To survive such a motion, the state’s evidence would have to show that the defendant: (1) intentionally wounded Jones; (2) proximately causing his death; (3) under a reasonable belief that use of force was necessary to avoid death or great bodily harm; but (4) the force used was greater than necessary to prevent such harm. Viewed in the light most favorable to the state, there was sufficient evidence in this case from which a reasonable juror could find each of those four factors, and the motion to dismiss was properly denied.

The defendant also argued on appeal that the parties had agreed to use pattern jury instruction 206.10, but the trial court’s actual instructions to the jury did not directly follow the pattern instruction language. If true, a challenge to that instruction would be preserved for appellate review even though the defense did not object. But based on its review of the record, the appellate court held that there was not an agreement to use a specific instruction, so its review of the jury instructions was limited to plain error. After reviewing the instructions as a whole, the appellate court found that the trial court had adequately instructed the jury as to each element and lesser-included offense. “Because the jury was informed of the essential elements it would have to find beyond a reasonable doubt in order to convict defendant of voluntary manslaughter, the trial court did not err in its jury instructions.”

The evidence was sufficient with respect to the defendant’s voluntary manslaughter conviction. The defendant was charged with first-degree murder. At trial the defendant admitted that he shot and killed his wife. He argued however that as a result of diabetes, his blood sugar was dangerously low at the time of the shooting, causing him to act in a manner that was not voluntary. The defendant moved for a directed verdict on the first-degree murder charges as well as the lesser charges of second-degree murder and voluntary manslaughter. The judge denied this motion and the jury found him guilty of voluntary manslaughter. The court rejected the defendant’s argument that acting in the “heat of passion” was an element of voluntary manslaughter, noting that for this offense the State need only prove that the defendant killed the victim by an intentional and unlawful act and that the defendant’s act was a proximate cause of death. Here, the defendant admitted that he shot his wife. His sole defense was that he did not act voluntarily due to low blood sugar, which put him in a state of automatism. The State presented expert testimony that he was not in such a state. Thus, there was substantial evidence from which the jury could reject the defendant’s automatism defense and conclude that the defendant intentionally shot and killed his wife—the only elements necessary to prove voluntary manslaughter.

The trial court did not err by denying the defendant’s motion to dismiss a voluntary manslaughter charge. The court rejected the defendant’s argument that there was insufficient evidence that she killed the victim by an intentional and unlawful act, noting that although there was no direct evidence that the defendant was aware that she hit the victim with her car until after it occurred, there was circumstantial evidence that she intentionally struck him. Specifically, the victim had a history, while under the influence of drugs and/or alcohol (as he was on the day in question), of acting emotionally and physically abusive towards the defendant; when the victim was angry, he would tell the defendant to “[g]et her stuff and get out,” so the defendant felt “trapped”; on the day in question the victim drank alcohol and allegedly smoked crack before hitting the defendant in the face, knocking her from the porch to the yard; the defendant felt scared and went “to a different state of mind” after being hit; before driving forward in her vehicle, the defendant observed the victim standing in the yard, near the patio stairs; and the defendant struck the stairs because she “wanted to be evil too.” The court concluded: “From this evidence, a jury could find Defendant felt trapped in a cycle of emotional and physical abuse, and after a particularly violent physical assault, she decided it was time to break free.”

In a case where the defendant was found guilty of involuntary manslaughter on the theory that he committed an unlawful act which proximately caused the victim’s death, the trial court committed reversible error by refusing to give a jury instruction on defense of others as an affirmative defense to the unlawful act at issue. The defendant was involved in an altercation at a waterfront bar that resulted in the death of the victim. The defendant’s version of the events was that the victim fell into the water and drown after physical contact by the defendant; the defendant claimed to be defending his friend Jimmy, who had been shoved by the victim. The unlawful act at issue was the offense of affray. On appeal the defendant argued that the trial court committed reversible error by refusing to instruct the jury on defense of others as an affirmative defense to the crime of affray. The defendant asserted that his only act—a single shove—was legally justified because he was defending his friend and thus was not unlawful. The court agreed. It noted that the state Supreme Court has previously sanctioned the use of self-defense by a defendant as an appropriate defense when the defendant is accused of unlawfully participating in affray. Where, as here, the State prosecuted the defendant for involuntary manslaughter based on the theory that the defendant committed an unlawful act (as opposed to the theory that the defendant committed a culpably negligent act) “the defendant is entitled to all instructions supported by the evidence which relate to the unlawful act, including any recognized affirmative defenses to the unlawful act.” Here, the evidence supports the defendant’s argument that the instruction on defense of others was warranted. Among other things, there was evidence that Jimmy felt threatened when shoved by the victim; that the defendant immediately advanced towards the victim in response to his contact with Jimmy; that the victim punched and kicked the defendant; and that the defendant only struck the victim once. The defendant was thus entitled to a defense of others instruction to affray. The court was careful to note that it took no position as to whether the defendant did in fact act unlawfully. It held only that the defendant was entitled to the instruction. The court also noted that the issue in this case is not whether self-defense is a defense to involuntary manslaughter; the issue in this case is whether self-defense is an affirmative defense to affray, the unlawful act used as the basis for the involuntary manslaughter charge.

 

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.

The trial court erred by denying the defendant’s motion to dismiss a second-degree murder charge where there was insufficient evidence of malice and the evidence showed that the death resulted from a mishap with a gun. The court remanded for entry of judgment for involuntary manslaughter.

The trial court properly denied the defendant’s motion to dismiss a charge of involuntary manslaughter. The primary issue raised in the defendant’s appeal was whether there was sufficient evidence that the defendant committed a culpably negligent act which proximately resulted in the victim’s death. The evidence showed that the defendant became angry at the victim during the defendant’s party and “kicked or stomped” his face, leaving the victim semiconscious; the defendant was irritated that he had to take the victim to meet the victim’s parents at a church; instead of taking the victim to the church, the defendant drove him to an isolated parking area and again beat him; the defendant abandoned the victim outside knowing that the temperature was in the 20s and that the victim had been beaten, was intoxicated, and was not wearing a shirt; the defendant realized his actions put the victim in jeopardy; and even after being directly informed by his father that the victim was missing and that officers were concerned about him, the defendant lied about where he had last seen the victim, hindering efforts to find and obtain medical assistance for the victim. On these facts, the court had “no difficulty” concluding that there was sufficient evidence that the defendant’s actions were culpably negligent and that he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected.

The trial court did not err by denying the defendant’s motion to dismiss a charge of involuntary manslaughter where a person under 21 years of age died as a result of alcohol poisoning and it was alleged that the defendant aided and abetted the victim in the possession or consumption of alcohol in violation or G.S. 18B-302. The court rejected the defendant’s argument that the State was required to prove that the defendant provided the victim with the specific alcohol he drank on the morning of his death. The court concluded that the evidence was sufficient, stating:

The evidence established that defendant frequently hosted parties at her home during which defendant was aware that underage people, including [the victim], consumed alcohol. On at least one occasion, defendant was seen offering alcohol to [the victim], and defendant knew the [victim] was under the age of 21. The State presented substantial evidence that defendant’s actions of allowing [the victim] to consume, and providing [the victim] with, alcohol were part of a plan, scheme, system, or design that created an environment in which [the victim] could possess and consume alcohol and that her actions were to consume, and providing [the victim] with, alcohol were part of a plan, scheme, system, or design that created an environment in which [the victim] could possess and consume alcohol and that her actions were done knowingly and were not a result of mistake or accident. Viewed in the light most favorable to the State, we conclude the evidence was sufficient to allow a reasonable juror to conclude that defendant assisted and encouraged [the victim] to possess and consume the alcohol that caused his death.

G.S. 20-141.4(c) does not bar simultaneous prosecutions for involuntary manslaughter and death by vehicle; it only bars punishment for both offenses when they arise out of the same death.

The State presented sufficient evidence of involuntary manslaughter. The State proved that an unlawful killing occurred with evidence that the defendant committed the misdemeanor of improper storage of a firearm. Additionally, the State presented sufficient evidence that the improper storage was the proximate cause of the child’s death.

The defendant was convicted in a bench trial of first-degree murder and negligent child abuse inflicting serious injury for starving and failing to provide medical treatment to his four-year-old disabled stepson, Malachi. The defendant appealed, and the Court of Appeals affirmed. The Supreme Court granted discretionary review.  The defendant argued on appeal that: (1) the trial court erred by failing to dismiss the first-degree murder charge because the record failed to contain sufficient evidence to support a finding that Malachi’s death was proximately caused by starvation; (2) the State was required to make a separate showing of malice in order to prove defendant’s guilt of murder on the basis of starvation; (3) if malice is implied, then starving must be defined as the complete deprivation of food and water; and (4) his conviction for negligent child abuse inflicting serious bodily injury rested upon findings that Malachi suffered from bedsores, ulcers, and diaper rash, which differed from the indictment’s allegations that he failed to provide the child with medical treatment and proper nutrition. The Supreme Court rejected each of the defendant’s arguments and affirmed his convictions.

(1) The Supreme Court determined that the trial court had ample justification for concluding that Malachi died as a proximate result of starvation, despite findings in an amended autopsy report attributing Malachi’s death to asphyxia caused by strangulation. Witnesses who were responsible for providing treatment to Malachi and his sibling during the last two years of his life testified that Malachi was not fed even though he was ravenously hungry and looked considerably thinner in the months leading up to his death. Emergency medical technicians who responded to the 911 call for Malachi’s death noticed the malnourished state of Malachi’s body, which some of them initially mistook for a doll. The physical evidence in the autopsy report demonstrated that Malachi was severely malnourished and dehydrated. A pediatric neurologist who had treated Malachi testified that the only thing that “‘would cause Malachi or any child to look like’” the child described by the emergency medical technicians and depicted in the autopsy report and related photographs was “‘starvation.’” Slip op. at ¶ 44. Although the autopsy was amended to attribute Malachi’s death to asphyxia secondary to strangulation, the record demonstrates that the forensic pathologist made those amendments based on the defendant’s statements to a detective that he had strangled Malachi, statements that the trial court found not credible.

(2) The Supreme Court concluded that the trial court did not commit plain error or err by failing to (a) instruct itself concerning the issue of malice or (b) make a separate finding that defendant acted with malice in connection with killing Malachi. The Court reasoned that the intentional withholding of the nourishment and hydration needed for survival resulting in death when the victim is unable to provide these things for himself or herself shows a reckless disregard for human life and a heart devoid of social duty. Thus, the malice necessary for guilt of murder is inherent in the intentional withholding of hydration or nutrition sufficient to cause death. As a result, the Court held that the act of starving another person to death for purposes of G.S. 14-17(a), without more, suffices to show malice, so that the trial court did not commit plain error by failing to instruct itself to make a separate finding of malice or err by failing to make a separate determination that defendant acted maliciously in its findings of fact and conclusions of law.

The Court further held that the record and the trial court’s findings demonstrated that the defendant proximately caused Malachi’s death by intentionally depriving him of needed hydration and nutrition, a showing that supported the conviction of murder by starvation. Witnesses testified that there was food in the house and that Malachi’s siblings received sufficient nutrition and hydration to survive. The evidence depicted Malachi as hungry and dehydrated during the months leading to his death; yet the defendant, who was Malachi’s primary caregiver, did not seek medical attention for Malachi and fed Malachi, at the most, no more than once each day.

(3) The Supreme Court rejected the defendant’s argument that starvation for purposes of G.S. 14-17(a) required proof that the defendant subjected the victim to a complete deprivation of food and hydration. The Court explained that the discussion in State v. Evangelista, 319 N.C. 152 (1987) did not suggest otherwise; instead, Evangelista simply indicated that murder by starvation occurs in the event that the defendant completely deprives the victim of food and drink. The Court reasoned that the adoption of the defendant’s definition of starvation for purposes of G.S. 14-17(a) would produce the absurd result that a person who kills another by withholding virtually all, but not all, food and drink would not be guilty of murder by starvation.

(4) The Supreme Court held there was no fatal discrepancy between the allegations of the indictment charging defendant with negligent child abuse inflicting serious injury and the trial court’s factual justification for convicting defendant of that offense. The indictment charged the defendant with negligent child abuse inflicting serious injury for failing to provide Malachi “‘with medical treatment’” for over one year, “‘despite the child having a disability,’” and with failing to “‘provid[e] the child with proper nutrition and medicine, resulting in weight loss and failure to thrive.’” Slip op. at ¶ 50. The Court deemed the trial court’s determinations that defendant “‘allow[ed] the child to remain in soiled diapers until acute diaper rash formed on the [child’s] groin and bottom,’” resulting in “‘open sores and ulcers,’” and that defendant kept “‘the child in a playpen for so long a period of time that bed sores formed on [his] legs and knees’” to be  fully consistent with the allegations in the indictment. Slip op. at ¶ 50.

On remand from the North Carolina Supreme Court’s decision (summary here) that there was no prejudicial error in the prosecutor’s closing argument with respect to race in this murder trial, the Court of Appeals considered the defendant’s remaining arguments regarding jury argument and jury instructions.  Largely based on its view that the prosecutor’s jury argument was made in the context of self-defense rather than, as the defendant maintained, the habitation defense, the court disagreed with the defendant’s argument that the trial court erred by failing to intervene to correct an alleged incorrect statement of law regarding the aggressor doctrine in the prosecutor’s closing argument to which the defendant did not object.  The court went on to decline to reach the defendant’s argument that the trial court plainly erred with respect to jury instructions on the aggressor doctrine in the context of the defense of habitation, finding the argument waived by the defendant’s active participation in the formulation of the jury instructions during the charge conference and failure to object at trial.  Finally, the court held that the trial court did not err by instructing the jury on murder by lying in wait because the instruction was supported by sufficient evidence even if it was assumed that the defendant offered evidence of a conflicting theory of defense of habitation.  The court noted with respect to lying in wait that the State’s evidence showed that the defendant concealed himself in his darkened garage with a suppressed shotgun and fired through a garage window, bewildering unwarned bystanders.

Judge Tyson dissented, expressing the view that the trial court erred with respect to instructing the jury on murder by lying in wait given that the defendant was wholly inside his home with his family as an armed intruder approached the home and given shortcomings in the trial court’s instructions regarding the State’s burden of disproving the defendant’s assertion of self-defense and the jury’s responsibility to evaluate evidence and inferences on that issue in the light most favorable to the defendant.

The trial court did not err by denying the defendant’s motion to dismiss a first-degree murder charge based on the theory of lying in wait. The defendant asserted that no ambush occurred because the defendant announced his presence. The evidence showed that the victim was in his residence with friends when the defendant arrived after dark. The victim went outside to speak with the defendant. There was no evidence that the defendant threatened or directed harm at the victim. The victim returned to his trailer, unharmed, after speaking with the defendant. The defendant waited for the victim to go back inside and then fired his weapon into the trailer, killing the victim. The victim had no warning that the defendant intended any harm. When the defendant spoke with the victim, the defendant told the victim to send another person outside, indicating that he only had an issue with the other person. Therefore, the court concluded, the victim was taken by complete surprise and had no opportunity to defend himself.

In this first-degree murder case, the trial court did not err by instructing the jury on a theory of lying in wait. The court rejected the defendant’s argument that this theory required the State to prove a “deadly purpose” to kill, noting that the state Supreme Court has held that "lying in wait is a physical act and does not require a finding of any specific intent." (quotation omitted). The court continued:

As the Supreme Court has previously held, [h]omicide by lying in wait is committed when: the defendant lies in wait for the victim, that is, waits and watches for the victim in ambush for a private attack on him, intentionally assaults the victim, proximately causing the victim's death. In other words, a defendant need not intend, have a purpose, or even expect that the victim would die. The only requirement is that the assault committed through lying in wait be a proximate cause of the victim's death.

(quotation and citation omitted). The court went on to find that the evidence was sufficient to support a lying in wait instruction where the defendant waited underneath a darkened staircase for the opportunity to rob the victim.

The evidence supported a jury instruction for first-degree murder by lying in wait. The evidence showed that the defendant parked outside the victim’s house and waited for her. All of the following events occurred 15-20 minutes after the victim exited her home: the defendant confronted the victim and an argument ensued; the defendant shot the victim; a neighbor arrived and saw the victim on the ground; the defendant shot the victim again while she was lying on the ground; the neighbor drove away and called 911; and an officer arrived on the scene. This evidence suggests that the shooting immediately followed the defendant’s ambush of the victim outside the house.

In this murder case where the trial court submitted jury instructions on both second-degree murder and voluntary manslaughter, the court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss the second-degree murder charge. The defendant argued that there was insufficient evidence that he acted with malice and not in self-defense. The court noted that any discrepancy between the State’s evidence and the defendant’s testimony was for the jury to resolve.

The trial court erred by denying the defendant’s motion to dismiss a second-degree murder charge where there was insufficient evidence of malice and the evidence showed that the death resulted from a mishap with a gun. The court remanded for entry of judgment for involuntary manslaughter.

In a second-degree murder case arising after the defendant drove impaired and hit and killed two bicyclists, there was sufficient evidence of malice. The defendant’s former girlfriend previously warned him of the dangers of drinking and driving; the defendant’s prior incident of drinking and driving on the same road led the girlfriend to panic and fear for her life; the defendant's blood alcohol level was .16; the defendant consumed an illegal controlled substance that he knew was impairing; the defendant swerved off the road three times prior to the collision, giving him defendant notice that he was driving dangerously; despite this, the defendant failed to watch the road and made a phone call immediately before the collision; the defendant failed to apply his brakes before or after the collision; and the defendant failed to call 911 or provide aid to the victims.

In a second-degree murder case stemming from a vehicle accident, there was sufficient evidence of malice. The defendant knowingly drove without a license, having been cited twice for that offense in the three weeks prior to the accident. When the original driver wanted to pull over for the police, the defendant took control of the vehicle by climbing over the back seat and without stopping the vehicle. He was attempting to evade the police because of a large volume of shoplifted items in his vehicle and while traveling well in excess of the speed limit. He crossed a yellow line to pass vehicles, twice passed vehicles using a turn lane, drove through a mowed corn field and a ditch, and again crossed the center line to collide with another vehicle while traveling 66 mph and without having applied his brakes. To avoid arrest, the defendant repeatedly struck an injured passenger as he tried to get out of the vehicle and escape.

In a case in which a second officer got into a vehicular accident and died while responding to a first officer’s communication about the defendant’s flight from a lawful stop, the evidence was sufficient to establish malice for purposes of second-degree murder. The defendant’s intentional flight from the first officer–including driving 65 mph in a residential area with a speed limit of 25 mph and throwing bags of marijuana out of the vehicle–reflected knowledge that injury or death would likely result and manifested depravity of mind and disregard of human life.

There was sufficient evidence of malice to support a second-degree murder conviction. Based on expert testimony the jury could reasonably conclude that the child victim did not die from preexisting medical conditions or from a fall. The jury could find that while the victim was in the defendant’s sole custody, he suffered non-accidental injuries to the head with acute brain injury due to blunt force trauma of the head. The evidence would permit a finding that the victim suffered a minimum of four impacts to the head, most likely due to his head being slammed into some type of soft object. Combined with evidence that the defendant bit the victim, was upset about the victim’s mother’s relationship with the victim’s father, and that the defendant resented the victim, the jury could find that the defendant intentionally attacked the month-old child, resulting in his death.

There was sufficient evidence of malice to sustain a second-degree murder conviction. Because there was evidence that the defendant killed the victim with a deadly weapon, the jury could infer that the killing was done with malice. The court rejected the defendant’s argument that his statements that he and the victim “had words or something” provided evidence of provocation sufficient to negate the malice presumed from the use of a deadly weapon or require a voluntary manslaughter instruction.

There was sufficient evidence of malice in a case arising from a vehicle accident involving impairment. The defendant admitted that he drank 4 beers prior to driving. The State’s expert calculated his blood alcohol level to be 0.08 at the time of the collision and other witnesses testified that the defendant was impaired. Evidence showed that he ingested cocaine and that the effects of cocaine are correlated with high-risk driving. The defendant admitted that he was speeding, and experts calculated his speed to be approximately 15 mph over the posted speed limit. The State also introduced evidence that the defendant had 4 prior driving while impaired convictions.

The trial court did not err by denying the defendant’s motion to dismiss a charge of second-degree murder. The defendant, after being kicked in the face in a fight inside a nightclub, became angry about his injury, retrieved a 9mm semi-automatic pistol and loaded magazine from his car, and loaded the gun, exclaiming "Fuck it. Who wants some?" He then began firing toward the crowd, killing an officer. Evidence of the intentional use of a deadly weapon — here, a semi-automatic handgun — that proximately causes death triggers a presumption that the killing was done with malice. This presumption is sufficient to withstand a motion to dismiss a second-degree murder charge. The issue of whether the evidence is sufficient to rebut the presumption of malice in a homicide with a deadly weapon is then a jury question.

The trial court did not err by denying the defendant’s motion to dismiss charges of second-degree murder, felony serious injury by vehicle, and impaired driving. The evidence showed that the defendant was under the influence of an impairing substance at the time of the accident. A chemical analysis of blood taken from the defendant after the accident showed a BAC of 0.14 and the State’s expert estimated that his BAC was 0.19 at the time of the accident. The defendant admitted having consumed 5 or 6 beers that day. Four witnesses testified that they detected a strong odor of alcohol emanating from the defendant immediately after the accident. The defendant had bloodshot eyes and was combative with emergency personnel immediately after the accident. Finally, the defendant’s speed exceeded 100 miles per hour and he failed to use his brakes or make any attempt to avoid the collision.

There was sufficient evidence to survive a motion to dismiss in a case in which the defendant was charged with second-degree murder under G.S. 14-17 for having a proximately caused a murder by the unlawful distribution and ingestion of Oxymorphone. There was sufficient evidence of malice where the victim and a friend approached the defendant to purchase prescription medication, the defendant sold them an Oxymorphone pill for $20.00, telling them that it was “pretty strong pain medication[,]” and not to take a whole pill or “do anything destructive with it.” The defendant also told a friend that he liked Oxymorphone because it “messe[d]” him up. The jury could have reasonably inferred that the defendant knew Oxymorphone was an inherently dangerous drug and that he acted with malice when he supplied the pill.

There was sufficient evidence of malice in a first-degree murder case. The intentional use of a deadly weapon which proximately results in death gives rise to the presumption of malice. Here, the victim was stabbed in the torso with a golf club shaft, which entered the body from the back near the base of her neck downward and forward toward the center of her chest to a depth of eight inches, where it perforated her aorta just above her heart; she was stabbed with a knife to a depth of three inches; her face sustained blunt force trauma consistent with being struck with a clothes iron; and there was evidence she was strangled. The perforation by the golf club shaft was fatal.

State v. Mack, 206 N.C. App. 512 (Aug. 17, 2010)

There was sufficient evidence of malice in a second-degree murder case involving a vehicle accident. The defendant, whose license was revoked, drove extremely dangerously in order to evade arrest for breaking and entering and larceny. When an officer attempted to stop the defendant, he fled, driving more than 90 miles per hour, running a red light, and traveling the wrong way on a highway — all with the vehicle's trunk open and with a passenger pinned by a large television and unable to exit the vehicle.

There was sufficient evidence of malice to support a second-degree murder conviction in a case where the defendant ran over a four-year-old child. When she hit the victim, the defendant was angry and not exhibiting self-control; the defendant’s vehicle created “acceleration marks” and was operating properly; the defendant had an “evil look”; and the yard was dark, several small children were present, and the defendant did not know where the children were when she started her car.

There was sufficient evidence of malice to sustain a second-degree murder conviction where the defendant drove recklessly, drank alcohol before and while operating a motor vehicle, had prior convictions for impaired driving and driving while license revoked, and fled and engaged in elusive behavior after the accident.

The trial court erred by failing to arrest judgment on one of the underlying felonies supporting the defendant’s felony-murder convictions. The court rejected the defendant’s argument that judgment must be arrested on all of the felony convictions. The defendant asserted that because the trial court’s instructions were disjunctive and permitted the jury to find her guilty of felony-murder if it found that she committed “the felony of robbery with a firearm, burglary, and/or kidnapping,” the trial court should have arrested judgment on all of the felony convictions on the theory that they all could have served as the basis for the felony murder convictions. Citing prior case law the court rejected this argument, stating that “[i]n cases where the jury does not specifically determine which conviction serves as the underlying felony, we have held that the trial court may, in its discretion, select the felony judgment to arrest.”

No double jeopardy violation occurred when the defendant was convicted of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious bodily injury based on the same events. Each offense includes an element not included in the other.

Citing State v. Washington, 141 N.C. App. 354 (2000), the court held that the defendant was properly charged and convicted of attempted murder and assault as to each victim, even though the offenses arose out of a single course of conduct involving multiple shots from a gun.

For purposes of double jeopardy, a second-degree murder conviction based on unlawful distribution of and ingestion of a controlled substance was not the same offense as sale or delivery of a controlled substance to a juvenile or possession with intent to sell or deliver a controlled substance.

A defendant may not be sentenced for both involuntary manslaughter and felony death by vehicle arising out of the same death. A defendant may not be sentenced for both felony death by vehicle and impaired driving arising out of the same incident. However, a defendant may be sentenced for both involuntary manslaughter and impaired driving.

A defendant may not be sentenced for both involuntary manslaughter and felony death by vehicle arising out of the same death. A defendant may not be sentenced for both felony death by vehicle and impaired driving arising out of the same incident. However, a defendant may be sentenced for both involuntary manslaughter and impaired driving.

State v. Childress, 367 N.C. 693 (Dec. 19, 2014)

The defendant’s actions provided sufficient evidence of premeditation and deliberation to survive a motion to dismiss an attempted murder charge. From the safety of a car, the defendant drove by the victim’s home, shouted a phrase used by gang members, and then returned to shoot at her and repeatedly fire bullets into her home when she retreated from his attack. The court noted that the victim did not provoke the defendant in any way and was unarmed; the defendant drove by the victim’s home before returning and shooting at her; during this initial drive-by, the defendant or a companion in his car yelled out “[W]hat’s popping,” a phrase associated with gang activity that a jury may interpret as a threat; the defendant had a firearm with him; and the defendant fired multiple shots toward the victim and her home. This evidence supported an inference that the defendant deliberately and with premeditation set out to kill the victim.

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. In light of the facts of the case, the Court of Appeals rejected the defendant’s argument that the trial court erred by denying his motion to dismiss the attempted first-degree murder charge for insufficiency of the evidence that he acted with premeditation and deliberation. The State proved, among other things, that the defendant said he would kill her and that he shot the door near the doorknob four to six times before kicking the door and yelling, which the court deemed sufficient evidence for the jury to reasonably conclude that the defendant attempted to kill the victim with premeditation and deliberation.

The appellate court also concluded that the defendant could not demonstrate prejudicial error resulting from the trial court’s deadly weapon malice instruction. The defendant argued that the instruction could have been misleading to the extent that it allowed an inference of malice on the attempted murder charge for shooting at the victim based on the injury resulting from a different crime, the pistol-whipping. Based on the defendant’s use of a weapon and the related circumstances, the court was unpersuaded that the jury would have reached a different result without the instruction.

In this murder case, there was sufficient evidence of premeditation and deliberation. The evidence showed that the victim suffered from a heart condition and other ailments. In the months before his death, the defendant and the victim--who were married--were arguing about financial issues. The defendant began a romantic relationship with her therapist and planned to ask the victim for divorce. A search of the home computer discovered Internet searches including “upon death of the veteran,” “can tasers kill people,” “can tasers kill people with a heart condition,” “what is the best handgun for under $200,” “death in absentia USA,” and “declare someone dead if missing 3 years.” On the date of death, the defendant visited her nephew, expressed concern about her safety due to break-ins in her neighborhood, and received from her nephew a gun and a knife. Shortly after that, she returned home and asked the victim to go on a drive with her. The defendant took the gun and knife in the car and used the weapons to kill the victim, shooting him and stabbing him approximately 12 times. Later in the day, the defendant messaged her therapist “it’s almost done” and “it got ugly.” After the incident, the defendant got rid of her bloodstained clothing, threw away the victim’s medications and identification, and said that he had either gone to Florida or was at a rehabilitation center.

In this first-degree murder case, the evidence was sufficient to go to the jury on the theory of premeditation and deliberation. Among other things, there was no provocation by the victim, who was unarmed; the defendant shot the victim at least four times; and after the shooting the defendant immediately left the scene without aiding the victim.

In this first-degree murder case there was sufficient evidence of premeditation and deliberation. Among other things, the evidence showed a lack of provocation by the victim, that just prior to the shooting the defendant told others that he was going to shoot a man over a trivial matter, that the defendant shot the victim 3 times and that the victim may have been turning away from or trying to escape at the time.

In a first-degree murder case, there was sufficient evidence of premeditation and deliberation. The court noted that the victim did not provoke the defendant and that the evidence was inconsistent with the defendant’s claim of self-defense.

In this first-degree murder case, the evidence was sufficient to show premeditation and deliberation. After some words in a night club parking lot the defendant shot the victim, who was unarmed, had not reached for a weapon, had not engaged the defendant in a fight, and did nothing to provoke the defendant’s violent response. After the victim fell from the defendant’s first shot, the defendant shot the victim 6 more times. Instead of then trying to help the victim, the defendant left the scene and attempted to hide evidence.

In a first-degree murder case there was sufficient evidence of premeditation and deliberation. There was evidence that the victim begged for his life, that the victim’s body had eight gunshot wounds, primarily in the head and chest, and there was a lack of provocation.

The State presented sufficient evidence that the defendant acted with premeditation and deliberation where, among other things, the defendant did not want a second child and asked his wife to get an abortion, he was involved in a long-term extramarital affair with a another woman who testified that the defendant was counting down the seconds until his first child would go to college so that he could leave his wife, the defendant had made plans to move out of his martial home but reacted angrily when his wife suggested that if the couple divorced she might move out of the state and take the children with her, and shortly before he shot his wife, he placed her cell phone out of her reach.

In a first-degree murder case, there was sufficient evidence of premeditation, deliberation, and intent to kill. After the defendant and an accomplice beat and kicked the victim, they hog-tied him so severely that his spine was fractured, and put tissue in his mouth. Due to the severe arching of his back, the victim suffered a fracture in his thoracic spine and died from a combination of suffocation and strangulation.

(1) The defendant’s statement that he formed the intent to kill the victim and contemplated whether he would be caught before he began the attack was sufficient evidence that he formed the intent to kill in a cool state of blood for purposes of a first-degree murder charge. (2) The court rejected the defendant’s argument that his evidence of alcohol and crack cocaine induced intoxication negated the possibility of premeditation and deliberation as a matter of law.

The defendant’s shooting of the victim’s mother (the defendant’s wife) while the victim was in utero was a proximate cause of the victim’s death after being born alive. The gunshot wound necessitated the child’s early delivery, the early delivery was a cause of a complicating condition, and that complicating condition resulted in her death.

In a case in which a second officer got into a vehicular accident and died while responding to a first officer’s communication about the defendant’s flight from a lawful stop, the defendant’s flight from the first officer was the proximate cause of the second officer’s death. The evidence was sufficient to allow a reasonable jury to conclude that the second officer’s death would not have occurred had the defendant not fled and that the second officer’s death was reasonably foreseeable. The court rejected the defendant’s argument that the second officer’s contributory negligence broke the causal chain.

There was sufficient evidence that the defendant’s actions were the proximate cause of death. The defendant argued that two unforeseeable events proximately caused the victims’ deaths: a third-party’s turn onto the road and the victims’ failure to yield the right-of-way. The court found that the first event foreseeable. As to the second, it noted that the defendant's speeding and driving while impaired were concurrent proximate causes.

There was sufficient evidence to survive a motion to dismiss in a case in which the defendant was charged with second-degree murder under G.S. 14-17 for having a proximately caused a murder by the unlawful distribution and ingestion of Oxymorphone. There was sufficient evidence that the defendant’s sale of the pill was a proximate cause of death where the defendant unlawfully sold the pill to the two friends, who later split it in half and consumed it; the victim was pronounced dead the next morning, and cause of death was acute Oxymorphone overdose.

In this case arising from a fatal automobile collision involving convictions for second-degree murder, DWI, felony death by motor vehicle, and failure to maintain lane control, the trial court erred by denying the defendant’s motion to dismiss the DWI and felony death by motor vehicle charges due to insufficient evidence of impairment.  There was, however, substantial evidence of malice with respect to second-degree murder and the trial court did not err in submitting that charge to the jury, nor did it err in submitting to the jury the failure to maintain lane control charge. 

Likening the case to its previous decision in State v. Eldred, 259 N.C. App. 345 (2018), the court found that there was insufficient evidence the defendant was impaired at the time of the collision where the officer who formed the opinion on impairment, an opinion based on observations occurring five hours after the collision, did so “entirely through passive observation” of the defendant, without requesting him to perform any field tests.  Moreover, the court noted, the officer did not ask the defendant if or when he and ingested any impairing substances.  The trial court erred by denying the defendant’s motion to dismiss the DWI charge, and, because DWI was a necessary element of the felony death by motor vehicle charge, also erred in denying the defendant’s motion to dismiss that charge.

Substantial evidence supported the failure to maintain lane control charge under G.S. 20-146(d)(1), a statute providing the disjunctive mandates that a motorist must (1) drive his or her vehicle “as nearly as  practicable entirely within a single lane” and (2) refrain from changing lanes unless he or she “has first ascertained that such movement can be made with safety.”  The defendant had argued that the fact that a tow truck partially obstructed his lane of travel meant that it was not “practicable” for him to drive entirely within that lane.  The court rejected that argument, finding that a reasonable juror could infer that the defendant could have avoided departing from his lane had he been traveling at a reasonable speed for conditions.  The court also explained that there was substantial evidence that the defendant failed to ascertain that his lane change movement could be made with safety as the tow truck also obstructed the defendant’s view of the perils which lay in his chosen lane change path.

The jury was instructed that the defendant would need to be found guilty of either DWI or failure to maintain lane control to be guilty of second degree murder, and having upheld his conviction on the lane control offense the court’s only remaining task was to determine whether there was substantial evidence that the defendant acted with malice.  Recounting the evidence in the light most favorable to the state, the court noted that the defendant was driving while knowing that his license was revoked for DWI and non-DWI offenses, was driving at an irresponsible speed for the icy conditions, made an unconventional maneuver to attempt to pass the tow truck partially obstructing his lane, became involved in a severe collision, left the scene without ascertaining whether anyone was harmed, and washed his car in an apparent attempt to destroy evidence and avoid apprehension.  The court also noted that the defendant’s extensive record of motor vehicle offenses and car accidents was published to the jury, allowing the jury to infer that he was aware of the risk to human life caused by his behavior on the road but nevertheless once again engaged in dangerous driving with indifference to its consequences.  This substantial evidence supported the element of malice by reckless disregard for human life.

Finally, the court determined that any error related to the admission of certain evidence was harmless because that evidence was relevant only to the issue of impairment, and further determined that the trial court’s denial of the defendant’s request for a jury instruction on the defense of accident, assuming the denial was error, was harmless because the jury’s verdicts suggested that it had rejected the notion that the defendant’s fatal unconventional traffic maneuver was unintentional.

In this case involving a conviction for second-degree murder following a fatal motor vehicle accident, the evidence was sufficient to establish malice. Evidence of the defendant’s prior traffic-related convictions are admissible to prove malice in a second-degree murder prosecution based on a vehicular homicide. Here, there was evidence that the defendant knew his license was revoked at the time of the accident and that he had a nearly two-decade-long history of prior driving convictions including multiple speeding charges, reckless driving, illegal passing, and failure to reduce speed. Additionally, two witnesses testified that the defendant was driving above the speed limit, following too close to see around the cars in front of him, and passing across a double yellow line without using turn signals. This was sufficient to establish malice.

In a case involving a conviction for second-degree murder following a fatal motor vehicle accident, the trial court did not abuse its discretion by admitting evidence of the defendant’s past driving offenses. The State’s evidence showed that on 23 November 2016, the defendant was stopped for an expired plate and was issued a citation for driving with a suspended license. At the time of the incident in question, the defendant’s license had been suspended since 22 May 2014 for failure to appear for a 2013 infraction of failure to reduce speed. Since the defendant’s driver’s license was originally issued in September 1997, he had multiple driving convictions including: failure to stop for siren or red light, illegal passing, speeding 80 in a 50, and reckless driving in March 1998; speeding 64 in a 55 in September 2000; speeding 64 in a 55 in October 2000; speeding 70 in a 50 in August 2003; driving while license revoked and speeding 54 in a 45 in January 2005; speeding 54 in a 45 in December 2006; failure to reduce speed resulting in accident and injury in February 2007; a South Carolina conviction for speeding 34 in a 25 in March 2011; speeding 44 in a 35 in January 2012; speeding 84 in a 65 in May 2013; and failure to reduce speed in February 2017 (the conviction corresponding to the 2013 charge on which the defendant failed to appear). Six of these prior convictions resulted in suspension of the defendant’s license. On appeal the defendant argued that the trial court erred by admitting his prior driving record without sufficient evidence establishing temporal proximity and factual similarity. The court disagreed. It found that there was no question that his prior driving record was admissible to show malice. It further held that the trial court’s finding of similarity was supported by the fact that the vast majority of prior charges involve the same types of conduct that the defendant was alleged to have committed in the present case—namely speeding, illegal passing, and driving while license revoked. Although the State did not present evidence of the specific circumstances surrounding the prior convictions, the similarity was evident from the nature of the charges.

            The trial court’s finding of temporal proximity was supported by the spread of convictions over the entirety of the defendant’s record, from the year his license was issued up until the year of the accident in question, showing a consistent pattern of conduct including speeding, illegal passing, and driving with a revoked license. The gaps in time between charges, never greater than three or four years, were not significant. Moreover, many of the gaps between charges occurred when the defendant’s license was suspended and he could not legally drive. The trial court properly determined that the time gaps in this pattern of conduct were less significant in light of the likely causes for the gaps, the defendant’s inability to legally drive. Additionally, the trial court properly gave a limiting instruction

            The court further rejected the defendant’s argument that the evidence should have been excluded because of the 10 year time limit under evidence Rule 609. That rule however only applies to evidence used to impeach a witness’s credibility, which is not at issue here.

The trial court did not err by denying the defendant’s motion to dismiss a charge of first-degree murder. On appeal the defendant argued that the State failed to introduce sufficient evidence with respect to an unlawful killing and the defendant’s identity as the perpetrator.

            The defendant argued that the State failed to show that the victim died by virtue of a criminal act. The court disagreed. The victim was found dead in a bathtub, with a hairdryer. Although the forensic pathologist who performed the autopsy was unable to determine a cause of death, he testified that he found red dots similar to bruising inside of the victim’s eyelids, causing him to believe that there was some type of pressure around her upper chest or neck and head area. He also found a large bruise on her right side that was less than 18 hours old, and an abrasion on her right thigh. A witness testified that the victim had no bruises the night before her death. Additionally, the pathologist found a hemorrhage on the inside of the victim’s scalp. The pathologist testified that her toxicology report was negative for alcohol and drugs and he ruled out drowning as a cause of death. He also found no evidence to support a finding that the victim died of electrocution. Taken in the light most favorable to the State, the evidence was sufficient to establish that the cause of death was a criminal act.

            The evidence was also sufficient to establish that the defendant was the perpetrator. The State presented substantial evidence of a tumultuous relationship between the defendant and the victim, colored by the defendant’s financial troubles, and that animosity existed between the two. The victim explicitly told a friend that she did not want to marry the defendant because of financial issues. The day before her death, the victim sent the defendant a text message, stating “You have until Tuesday at 8:00 as I’m leaving to go out of town Wednesday or Thursday. And my locks will be changed. So do my [sic] act stupid. Thanks.” She then sent an additional text stating, “I will also be [sic] send a request not to stop child support FYI.” The defendant’s financial difficulties, coupled with his tempestuous relationship with the victim and her threat to end the relationship and remove the defendant from her home are sufficient for a reasonable juror to conclude that the defendant had a motive to kill the victim. Additionally, the State presented evidence of opportunity. Specifically, evidence that the defendant was in the home between when the victim returned the night before and when her body was found the next day. Additionally, the evidence supported a conclusion that the victim was suffocated, and evidence connected the defendant to the method of killing. A white feather pillow was found behind a mattress in the room where the defendant stayed. Also in that room was an unopened pack of white socks. White feathers were found on the floor in the bedroom, in a trash bin outside the home, and in the bathroom where the victim’s body was found. A pair of wet white socks was found in the trashcan in the kitchen, with a feather on them. This evidence would allow a reasonable juror to conclude that the defendant had the means of suffocating the victim with the feather pillow found in his room and that he was connected to the means of the killing.

In this case involving convictions for first-degree kidnapping and misdemeanor assault with a deadly weapon, among other offenses, the State presented sufficient evidence of the offenses and the trial court did not err by denying the defendant’s motion to dismiss on that basis.  With regard to the kidnapping conviction, the defendant argued that the State failed to present substantial evidence the defendant’s purpose was to terrorize the victim.  Recounting evidence that the defendant hid in the backseat of the victim’s car holding a knife while he waited for her to get off work, forced her to remain in the car and drive by choking her and threatening her with the knife, and forcefully struck her on the head when she attempted to scream for help, the court rejected this argument and bolstered its position by describing her frantic efforts to escape. 

The court also found sufficient evidence of misdemeanor assault with a deadly weapon under both the show of violence theory of assault and the act or attempt to do injury to another theory of assault.  The State’s evidence tended to show that after two men scuffled with the defendant in an attempt to aid the victim, the defendant jumped into the driver’s seat of the victim’s car and attempted to run the men over and nearly did so.  This was sufficient evidence of assault under either theory.

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

In a case involving assault on a firefighter with a firearm, there was sufficient evidence that the defendant committed an assault. To constitute an assault, it is not necessary that the victim be placed in fear; it is enough if the act was sufficientto put a person of reasonable firmness in apprehension of immediate bodily harm. “It is an assault, without regard to the aggressor's intention, to fire a gun at another or in the direction in which he is standing.” Here, the defendant shot twice at his door while firefighters were attempting to force it open and fired again in the direction of the firefighters after they forced entry. The defendant knew that people were outside the door and shot the door to send a warning.

Assault is not a lesser-included offense of sexual battery.

State v. Floyd, 369 N.C. 329 (Dec. 21, 2016)

The Court of Appeals improperly found that attempted assault is not a recognized criminal offense in North Carolina. The court rejected the notion that attempted assault is an “attempt of an attempt.” Thus, a prior conviction for attempted assault with a deadly weapon inflicting serious injury can support a later charge of possession of a firearm by a felon and serve as a prior conviction for purposes of habitual felon status.

A defendant may not be convicted of assault with a deadly weapon under G.S. 14-32 and assault on a child under G.S. 14-33 based on the same incident. G.S. 14-33 states that a defendant shall be guilty of assault on a child unless another statue provides harsher punishment for the same conduct. Here, because the defendant was convicted and sentenced for assault with a deadly weapon for his assault on the same victim and since this conviction carries a harsher punishment than assault on a child, the conviction and sentence for assault on a child must be vacated.

Assault on a female is not a lesser-included of first-degree sexual offense.

In a case with multiple victims, the court rejected the defendant’s argument that the State’s evidence was too vague for the jury to infer that he pointed the gun at any particular individual. One witness testified that upon defendant’s orders, “everybody ran in the room with us … and he was waiving [sic] the gun at us[.]” Another testified that “[w]hen [defendant] came down the hall, when he told everyone to get into one room, all of them came in there … [e]ven the two little ones ….” She further testified, “I was nervous for the kids was down there hollering and carrying on, and he hollered – he point [sic] the gun toward everybody in one room. One room. And told them come on in here with me.” A third testified that once everybody was in the same bedroom, defendant pointed the shotgun outward from his shoulder.

In re N.T., 214 N.C. App. 136 (Aug. 2, 2011)

The evidence was insufficient to support an adjudication of delinquency based on assault by pointing a gun where the weapon was an airsoft gun from which plastic pellets were fired using a “pump action” mechanism. For purposes of the assault by pointing a gun statute, the term “gun” “encompasses devices ordinarily understood to be ‘firearms’ and not other devices that fall outside that category.” Slip op. at 12. Thus, imitation firearms are not covered. The court noted that its conclusion had no bearing on whether the juvenile might be found delinquent for assault with a deadly weapon inflicting serious injury, assault with a deadly weapon, assault inflicting serious injury, or assault on a child under twelve.

The evidence was sufficient to establish assault by strangulation. The victim testified that the defendant strangled her twice; the State’s medical expert testified that the victim’s injuries were consistent with strangulation; and photographic evidence showed bruising, abrasions, and a bite mark on and around the victim’s neck. The court rejected the defendant’s arguments that the statute required “proof of physical injury beyond what is inherently caused by every act of strangulation” or extensive physical injury.

The trial court did not err by denying the defendant’s motion to dismiss a charge of assault by strangulation on the same victim. The defendant argued that because his obstruction of the victim’s airway was caused by the defendant’s hand over the victim’s nose and mouth, rather than “external pressure” applied to the neck, it was “smothering” not “strangling”. Rejecting this argument, the court concluded:

We do not believe that the statute requires a particular method of restricting the airways in the throat. Here, defendant constricted [the victim’s] airways by grabbing him under the chin, pulling his head back, covering his nose and mouth, and hyperextending his neck. Although there was no evidence that defendant restricted [the victim’s] breathing by direct application of force to the trachea, he managed to accomplish the same effect by hyperextending [the victim’s] neck and throat. The fact that defendant restricted [the victim’s] airway through the application of force to the top of his neck and to his head rather than the trachea itself is immaterial.

(1) The evidence was sufficient to establish assault by strangulation; the victim told an officer that she felt that the defendant was trying to crush her throat, that he pushed down on her neck with his foot, that she thought he was trying to “chok[e] her out” or make her go unconscious, and that she thought she was going to die. (2) Even if the offenses are not the same under the Blockburger test, the statutory language, “[u]nless the conduct is covered under some other provision of law providing greater punishment,” prohibits sentencing a defendant for this offense and a more serious offense based on the same conduct.

State v. Davis, 197 N.C. App. 738 (July 7, 2009) aff’d in part, rev’d in part, 364 N.C. 297 (Aug 27 2010)

Committing a violation of G.S. 20-138.1 (impaired driving) constitutes culpable negligence as a matter of law sufficient to establish the requisite intent for assault with a deadly weapon inflicting serious injury.

A defendant may not be convicted of assault with a deadly weapon under G.S. 14-32 and assault on a child under G.S. 14-33 based on the same incident. G.S. 14-33 states that a defendant shall be guilty of assault on a child unless another statue provides harsher punishment for the same conduct. Here, because the defendant was convicted and sentenced for assault with a deadly weapon for his assault on the same victim and since this conviction carries a harsher punishment than assault on a child, the conviction and sentence for assault on a child must be vacated.

Given the manner of its use, there was sufficient evidence that a kitchen table chair was a deadly weapon.

There was sufficient evidence that a lawn chair was a deadly weapon for purposes of assault. The victim was knocked unconscious and suffered multiple facial fractures and injuries which required surgery; after surgery his jaw was wired shut for weeks and he missed 2-3 weeks of work; and at trial the victim testified that he still suffered from vision problems. Because the State presented evidence that the defendant assaulted the victim with the lawn chair and not his fists alone, it was not required to present evidence as to the parties’ size or condition.

Based on the manner of its use, a car was a deadly weapon as a matter of law. The court based its conclusion on the vehicle’s high rate of speed and the fact that the officer had to engage in affirmative action to avoid harm.

The trial court did not err by instructing the jury that a pickaxe was a deadly weapon. The pickaxe handle was about 3 feet long, and the pickaxe weighed 9-10 pounds. The defendant swung the pickaxe approximately 8 times, causing cuts to the victim’s head that required 53 staples. She also slashed his middle finger, leaving it hanging only by a piece of skin.

The trial judge committed prejudicial error with respect to its instruction on the intent element for the charges of assault with a deadly weapon, in a case in which a vehicle was the deadly weapon. In order for a jury to convict of assault with a deadly weapon, it must find that it was the defendant's actual intent to strike the victim with his vehicle, or that the defendant acted with culpable negligence from which intent may be implied. Because the trial court’s instruction erroneously could have allowed the jury to convict without a finding of either actual intent or culpable negligence, reversible error occurred.

The evidence was sufficient to establish that the knife used in the assault was a deadly weapon where a witness testified that the knife was three inches long and the victim sustained significant injuries.

There was sufficient evidence that the defendant’s hands were a deadly weapon as to one victim when the evidence showed that the defendant was a big, stocky man, probably larger than the victim, who was a female and a likely user of crack cocaine, and the victim sustained serious injuries. There was sufficient evidence that the defendant’s hands were a deadly weapon as to another victim when the evidence showed that the victim was a small-framed, pregnant woman with a cocaine addiction and the defendant used his hands to throw her onto the concrete floor, cracking her head open, and put his hands around her neck.

The vehicle at issue was not a deadly weapon as a matter of law where there was no evidence that the vehicle was moving at a high speed and given the victim’s lack of significant injury and the lack of damage to the other vehicle involved, a jury could conclude that the vehicle was not aimed directly at the victim and that the impact was more of a glancing contact.

The defendant and an accomplice, both female, assaulted a male with fists and tree limbs. The two females individually, but not collectively, weighed less than the male victim, and both were shorter than him. They both were convicted of assault with a deadly weapon inflicting serious injury. The court ruled that the evidence was sufficient to prove that the fists and the tree limbs were deadly weapons.

The defendant and his accomplice discussed intentionally forcing drivers off the road in order to rob them and one of them then deliberately threw a very large rock or concrete chunk through the driver’s side windshield of the victim’s automobile as it was approaching at approximately 55 or 60 miles per hour. The size of the rock and the manner in which it was used establishes that it was a deadly weapon.

(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of assault with a deadly weapon with intent to kill inflicting serious injury on victim Stokes. The court rejected the defendant’s argument that the State was required to prove that the defendant specifically intended to kill Stokes when he fired into a trailer when Stokes and others were present. The court reasoned that “It is not determinative to this issue of whether or not Defendant knew Stokes was in the trailer.” It concluded: “there was sufficient evidence for the jury to infer Defendant intended to kill whoever was inside the trailer.” The court noted that, among other things, the defendant fired numerous shots into the trailer knowing it was occupied.

(2) The court rejected the defendant’s argument that the assault conviction should be reversed because the trial court did not instruct the jury on the doctrine of transferred intent, noting that the State did not argue transferred intent and neither party requested a transferred intent instruction. Rather, the State’s evidence showed that the defendant knew a trailer was occupied by at least two people when he fired into it numerous times. Based on the nature of the assault, the evidence was sufficient for the jury to find that the defendant intended to kill whoever was in the trailer.

The evidence was sufficient to show an assault with intent to kill an officer when, after having fatally shot eight people, the defendant ignored the officer’s instructions to drop his shotgun and continued to reload it. The defendant then turned toward the officer, lowered the shotgun, and fired one shot at the officer at the same time that the officer fired at the defendant.

There was sufficient evidence of an intent to kill when during a robbery the defendant fired a gun beside the store clerk’s head and the clerk testified that he thought the defendant was going to kill him.

State v. Wilkes, 225 N.C. App. 233 (Jan. 15, 2013) aff’d per curiam, 367 N.C. 116 (Oct 4 2013)

The trial court did not err by denying the defendant’s motion to dismiss a charge of assault with deadly weapon with intent to kill, over the defendant’s argument that there was insufficient evidence of an intent to kill. This charge was based on the defendant’s use of a bat to assault his wife. The court determined that the nature and manner of the attack supported a reasonable inference that the defendant intended to kill, including that he hit her even after she fell to her knees, he repeatedly struck her head with the bat until she lost consciousness, she never fought back, and the wounds could have been fatal. Also, the circumstances of the attack, including the parties’ conduct, provided additional evidence of intent to kill, including that the two had a volatile relationship and the victim had recently filed for divorce.

The trial court did not err by failing to instruct the jury on the lesser-included offense of assault with a deadly weapon inflicting serious injury to the charge of assault with a deadly weapon with intent to kill inflicting serious injury. The defendant broke into a trailer in the middle of the night and used an iron pipe to repeatedly beat in the head an unarmed, naked victim, who had just woken up.

There was sufficient evidence of an intent to kill and the weapon used was deadly as a matter of law. The defendant was convicted of assault with a deadly weapon with intent to kill inflicting serious injury and other offenses. There was sufficient evidence of an intent to kill where the defendant and his accomplice discussed intentionally forcing drivers off the road in order to rob them and one of them then deliberately threw a very large rock or concrete chunk through the driver’s side windshield of the victim’s automobile as it was approaching at approximately 55 or 60 miles per hour. The court concluded that it is easily foreseeable that such deliberate action could result in death, either from the impact of the rock on or a resulting automobile accident.

In an assault with a deadly weapon inflicting serious injury case, the trial court did not err by instructing the jury that three gunshot wounds to the leg constituted serious injury. The victim was shot three times, was hospitalized for two days, had surgery to remove a bone fragment from his leg, and experienced pain from the injuries up through the time of trial. From this evidence, the court concluded, it is unlikely that reasonable minds could differ as to whether the victim’s injuries were serious.

(1) There was sufficient evidence that the victim suffered serious injury. The defendant shot the victim with a shotgun, causing injuries to the victim’s calf and 18-20 pellets to lodge in his leg, which did not fully work themselves out for six months. One witness testified that the victim had holes in his leg from the ankle up and another observed blood on his leg and noted that the wounds looked like little holes from birdshot from a shotgun. (2) When the trial judge used N.C.P.J.I.—Crim. 208.15 to instruct the jury on the offense of assault with a deadly weapon with intent to kill inflicting serious injury, it did not err by failing to also give instruction 120.12, defining serious injury.

The trial court did not commit plain error by peremptorily instructing the jury that multiple gunshot wounds to the upper body would constitute serious injury. The victim required emergency surgery, was left with scars on his chest, shoulder, back and neck, and a bullet remained in his neck, causing him continuing pain.

The trial court did not err by failing to instruct on the lesser-included offense of assault with a deadly weapon to the charge on assault with a deadly weapon inflicting serious injury. After a beating by the defendant, the victim received hospital treatment, had contusions and bruises on her knee, could not walk for about a week and a half, and her knee still hurt at the time of trial.

The evidence was sufficient to establish serious injury where the defendant had a three-inch knife during the assault; the victim bled “a lot” from his wounds, dripping blood throughout the bedroom, bathroom, and kitchen; the victim was on the floor in pain and spitting up blood when the officer arrived; the victim was stabbed or cut 8 or 9 times and had wounds on his lip, back, and arm; the victim was removed by stretcher to the emergency room, where he remained for 12 hours, receiving a chest tube to drain blood, stitches in his back and arm, and was placed on a ventilator because of a lung puncture; the victim received pain medication for approximately one week; and at trial the victim still had visible scars on his lip, arm, and back.

The defendant was convicted by a jury of assault inflicting serious bodily injury and assault on a female based on an argument and fight with the mother of his child. He pushed her down, threw her head into the concrete, punched her, dragged her, and flung her onto the hood of a car. Among other injuries she had two concussions and a fractured eye socket that rendered her temporarily blind in one eye for two weeks. (1) The defendant argued on appeal that the indictment failed to allege the crime of assault inflicting serious bodily injury in that it alleged injuries that would be no more than misdemeanor assault inflicting serious injury, namely, “several lacerations to the face resulting in stitches and a hematoma to the back of the head.” The court of appeals disagreed, holding that the additional description of the victim’s injuries in the indictment was irrelevant as to its validity, and may be regarded as incidental to the salient statutory language, which was present. (2) The injury to the victim’s eye met the statutory definition of “serious bodily injury” in G.S. 14-32.4(a) in that the defendant was completely blind in her left eye for one week and her vision was not fully restored for two full weeks after the assault. She could not drive for one week and was not able to return to work until her vision was completely restored. A reasonable juror thus could have concluded that the injury resulted in a “protracted loss or impairment of the function of a bodily member or organ,” and that it therefore qualified as a serious bodily injury. (3) Finally, the court declined to consider the defendant’s argument on appeal that the trial court should have instructed the jury on misdemeanor assault inflicting serious injury. The defendant never objected to the instructions at trial and failed to argue plain error on appeal. Therefore, he waived the issue on appeal. A judge dissenting in part would have found the evidence here insufficient to qualify as a “protracted loss or impairment” when the victim fully recovered in in two weeks.

State v. Fields, ___ N.C. App. ___, 827 S.E.2d 120 (Apr. 16, 2019) aff'd on other grounds, ___ N.C. ___, ___ S.E.2d ___ (Jun 5 2020)

In an assault inflicting serious bodily injury case involving the defendant’s assault on a transgender woman, A.R., the evidence was sufficient to establish that serious bodily injury occurred. A.R.’s injury required stitches, pain medication, time off from work, and modified duties once she resumed work. Her pain lasted for as much as six months, and her doctor described it as “significantly painful.” This evidence tends to show a “permanent or protracted condition that causes extreme pain.” Moreover, the assault left A.R. with a significant, jagged scar, which would support a finding of “serious permanent disfigurement.”

The evidence was sufficient to support a conviction for felony assault inflicting serious bodily injury. On appeal the defendant challenged only the element of serious bodily injury. As a result of the assault, the victim suffered from difficulty swallowing, numerous lacerations, a concussion, and severe headaches. The headaches continued at least through the time of trial, four years after the attack. The headaches thus constitute a permanent or protracted condition that causes extreme pain.

(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of assault on a law enforcement officer inflicting serious bodily injury. The defendant asserted that he only used the amount of force reasonably necessary to resist an unlawful arrest. In the case, the officer responded to a 911 call reporting a suspicious person who refused to leave a public housing complex. The person was described as a male in his 30s wearing all black and near or around an older model, a black truck. The police department had an agency agreement with the complex giving officers the authority to remove trespassers from the property. Upon arrival the officer saw the male defendant wearing all black clothing and standing in front of an older model, black truck with a beer can in his hand. When the two spoke, the officer could smell a strong odor of alcohol emitting from the defendant. After further interaction, the officer explained to the defendant that he was trespassing. In part because of his impairment, the officer asked the defendant how he was going to get home. The defendant gave no clear answer. The officer informed the defendant that he was being “trespassed” and although not under arrest he would be taken for a “detox.” The officer attempted to handcuff the defendant in accordance with department policy to handcuff people transported by the police. When the officer reached for his handcuff pouch, the defendant became aggressive and used foul language, tensed up and tried to pull away from the officer. Trying to get control of the defendant, the officer pushed the defendant towards his vehicle. The officer informed the defendant that he was under arrest for resisting delaying and obstructing an officer. The defendant tried to turn around, raising his fist as if to “throw a punch.” The officer pointed his Taser at the defendant giving commands and advising him that he was under arrest. The defendant fled and the officer pursued. When the defendant fell to the ground on his back, the officer commanded him to roll over and put his hands behind his back. The defendant refused to comply and raised his feet and hands towards the officer “taking a combat stance.” The officer fired his Taser. However, the defendant was able to remove one of the Taser leads and took flight again. After the officer tackled the defendant, a struggle ensued. Backup arrived and assisted in securing the defendant. The officer sustained injuries from the struggle. There was sufficient evidence of the first element of the offense, an assault on the officer. Specifically, the officer testified that the defendant hit and bit him. There also was sufficient evidence with respect to serious bodily injury. Specifically, the officer testified that the bites caused extreme pain, skin removal, permanent scarring, and hospitalization. Photographs of the injuries were shown to the jury, as were the officer’s scars. The evidence also was sufficient to establish the third element, that the victim was a law enforcement officer performing his official duties at the time of the assault. The evidence showed that the officer was attempting to discharge his official duties as a routine patrol officer by responding to a report about a trespasser, conducting investigative work and acting on the results of his investigation. Finally, the evidence was sufficient to establish that the defendant knew or had reasonable grounds to know that the victim was a law enforcement officer. Here, the officer arrived in a marked patrol vehicle, was in uniform and told the defendant that he was a law enforcement officer.

(2) The trial court did not err by failing to instruct the jury on the right to resist an unlawful arrest. Here, an arrest occurred when under G.S. 122C-303, the officer attempted, against the defendant’s will, to take the publicly intoxicated defendant to jail to assist him. However, probable cause to arrest the defendant for second-degree trespass existed at this time. It does not matter that the officer did not arrest the defendant for that offense. The arrest was lawful because there was probable cause that the defendant had committed the trespass offense in the officer’s presence. Throughout the officer’s investigation, the defendant remained at the complex without authorization, even after he had been notified not to enter or remain there by the officer, a person authorized to so notify him. The court rejected the defendant’s argument that second-degree trespass does not create probable cause to arrest because that offense is a misdemeanor.

(3) The trial court did not err by failing to instruct the jury on the right to defend oneself from excessive force by a law enforcement officer where the evidence did not show that the officer’s use of force was excessive.

The trial court erred by denying the defendant’s motion to dismiss charges of assault inflicting serious bodily injury where there was insufficient evidence that the officer sustained serious bodily injury from the defendant’s bites. There was insufficient evidence of a permanent or protracted condition that causes extreme pain. Although there was evidence that the bite caused swelling and bruising that resolved in about one month, there was no evidence that the injury continued to cause the officer significant pain subsequent to his initial hospital treatment. Furthermore there was insufficient evidence of serious, permanent disfigurement, notwithstanding discoloration at the site of the bite.

(1) The evidence was sufficient to establish that the defendant inflicted serious bodily injury on the victim. The beating left the victim with broken bones in her face, a broken hand, a cracked knee, and an eye so beat up and swollen that she could not see properly out of it at the time of trial. The victim testified that her hand and eye “hurt all of the time.” (2) The defendant could not be convicted and sentenced for both assault inflicting serious bodily injury and assault on a female when the convictions were based on the same conduct. The court concluded that language in the assault on a female statute (“[u]nless the conduct is covered under some other provision of law providing greater punishment . . . .”) reflects a legislative intent to limit a trial court’s authority to impose punishment for assault on a female when punishment is also imposed for higher class offenses that apply to the same conduct (here, assault inflicting serious bodily injury).

(1) There was sufficient evidence of serious bodily injury with respect to one victim where the victim suffered a cracked pelvic bone, a broken rib, torn ligaments in her back, a deep cut over her left eye, and was unable to have sex for seven months; the eye injury developed an infection that lasted months and was never completely cured; the incident left a scar above the victim’s eye, amounting to permanent disfigurement; there was sufficient evidence of serious bodily injury as to another victim where the victim sustained a puncture wound to the back of her scalp and a parietal scalp hematoma and she went into premature labor as a result of the attack. (2) There was insufficient evidence of serious bodily injury as to another victim where the evidence showed that the victim received a vicious beating but did not show that her injuries placed her at substantial risk of death; although her ribs were “sore” five months later, there was no evidence that she experienced “extreme pain” in addition to the “protracted condition.” (4) Based on the language in G.S. 14-32.4(b) providing that “[u]nless the conduct is covered under some other provision of law providing greater punishment,” the court held that a defendant may not be sentenced to assault by strangulation and a more serious offense based on the same conduct. Because the statutory language in G.S. 14-32.4(a) proscribing assault inflicting serious bodily injury contains the same language, the same analysis likely would apply to that offense.

There was sufficient evidence that a 70-year-old victim suffered from a protracted condition causing extreme pain supporting a charge of assault inflicting serious bodily injury when the facts showed: the victim had dried blood on her lips and in her nostrils and abdominal pain; she had a bruise and swelling over her left collarbone limiting movement of her shoulder, and a broken collarbone, requiring a sling; she had cuts in her hand requiring stitches; she received morphine immediately and was prescribed additional pain medicine; she had to return to the emergency room 2 days later due to an infection in the sutured hand, requiring re-stitching and antibiotics; a nurse was unable to use a speculum while gathering a rape kit because the victim was in too much pain.

In this discharging a firearm into an occupied vehicle while in operation case, the trial court did not err by denying the defendant’s motion to dismiss for insufficient evidence.  Evidence at trial tended to show that the defendant fired a pistol at the victim’s truck and struck a toolbox fastened into the truck’s bed.  The court rejected the defendant’s argument that G.S. 14-34.1(b) requires at a minimum that the bullet strike the exterior wall of the vehicle.  Analogizing to State v. Miles, 223 N.C. App. 160 (2012), where it had determined that there was sufficient evidence of the version of the offense involving an occupied dwelling where a bullet struck a porch attached to a house, the court determined that striking the toolbox of the vehicle was sufficient to meet the firing “into [property]” element of the offense.

The defendant was convicted of possession of a firearm by a felon, three counts of assault with a deadly weapon and seven counts of discharging a firearm into an occupied vehicle based on an incident in which he chased two women from his house and fired at the car of a Good Samaritan who stopped to assist the women on the highway.  

(1) Though the defendant did not object to the testimony at trial, he argued on appeal that the Good Samaritan should not have been permitted to testify as a lay witness that the shots were not fired from an automatic weapon. The court of appeals found no error in the admission of the testimony, which was based on the witness’s first-hand knowledge of the incident and his familiarity with the distinction between automatic and semi-automatic rifle fire, gained through decades of military service.

(2) Defendant argued on appeal that the State failed to prove the six additional shots fired into the truck after the first shot were discharged willfully or wantonly within the meaning of G.S. 14-34.1(b). The court of appeals rejected the defendant’s argument. The court noted that the Good Samaritan’s testimony provided evidence that the defendant did not use an automatic weapon but instead used a weapon that required him to pull and release the trigger (and thus employ his thought process) each time he decided to shoot into the occupied truck. In addition, testimony from the Good Samaritan and one of the women established that the shooting continued over an identifiable period of time, as opposed to occurring in a rapid burst of gunfire.

Finally, the court of appeals dismissed the defendant’s argument that he had been sentenced in violation of his right to be free from double jeopardy on the basis that the defendant failed to preserve the argument by objecting a trial.

After getting into an argument at a holiday party, the defendant fired a warning shot from a rifle into the air and then fired a single shot into a moving vehicle occupied by two people, striking one of them in the neck and seriously injuring him. Defendant was subsequently convicted and sentenced for four felonies related to the shooting, including charges for both: (1) discharging a weapon into an occupied vehicle in operation inflicting serious bodily injury, a Class C felony under G.S. 14-34.1(c) (for the injured victim); and (2) discharging a weapon into an occupied vehicle in operation, a Class D felony under G.S. 14-34.1(b) (for the second occupant). On appeal, the defendant argued that the trial court should have arrested judgment on the lesser of the two charges for firing into an occupied vehicle, because he could not be sentenced twice for the single act of firing one shot. The Court of Appeals agreed and held that although the defendant could be indicted and tried for both charges, upon conviction the trial court should have arrested judgment for the lesser offense. This case was distinguishable from other cases in which multiple judgments were supported because the defendant fired multiple shots or fired into multiple vehicles. In this case, where there was only one shot fired into one vehicle, the relevant inquiry under the statute is only whether the vehicle was occupied; the number of occupants is immaterial. To the extent that the presence of additional occupants in the vehicle increases the risk of injury or enhances the culpability of the act, that factor is accounted for by the ascending levels of punishment prescribed under the statute.

The evidence was sufficient to support a conviction of discharging a weapon into occupied property. The defendant argued that the evidence was insufficient to show that the defendant knew that the property was occupied when he shot into the house. Here, an eyewitness testified that before discharging his firearm, the defendant loudly “called out” individuals inside the home, challenging them to come outside, and an individual was standing in the doorway just minutes earlier when the defendant slowly drove past, looking at the dwelling.

(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of discharging a firearm into occupied property. The trial court improperly instructed the jury that it had to find that the defendant knew or had reasonable grounds to believe that the dwelling was occupied; this instruction raised the evidentiary bar for the State, as this offense only requires proof that the defendant had reasonable grounds to believe that the building might be occupied. The court rejected the defendant’s argument that the State was bound by the higher standard stated in the jury instruction. Evidence that the shooting occurred in a residential neighborhood in the evening and resident’s car was parked outside of her home sufficiently established that the defendant knew or had reasonable grounds to believe that the dwelling might be occupied. (2) The court rejected the defendant’s argument that the trial court’s jury instruction on discharging a firearm into occupied property was an improper disjunctive instruction. The defendant was indicted for firing into the home of Ms. Knox. At trial, all the evidence pertains to Knox’s home. The trial court’s jury instruction referred to discharging a firearm “into a dwelling,” without specifying Knox’s home. The jury instruction was not phrased in the disjunctive nor did it have “the practical effect of disjunctive instruction,” as argued by the defendant.

In a discharging a barreled weapon into occupied property case, the trial court did not err by instructing the jury that because the crime was a general intent crime, the State need not prove that the defendant intentionally discharged the fireadisrm into occupied property, and that it needed only prove that he intentionally discharged the firearm.

The trial court did not err by denying the defendant’s request for a diminished capacity instruction with respect to a charge of discharging a firearm into occupied property that served as a felony for purposes of a felony-murder conviction. Because discharging a firearm into occupied property is a general intent crime, diminished capacity offers no defense.

The evidence was sufficient to support a conviction for discharging a firearm into occupied property (a vehicle), an offense used to support a felony-murder conviction. The defendant argued that the evidence was conflicting as to whether he fired the shots from inside or outside the vehicle. Citing prior case law, the court noted that an individual discharges a firearm “into” an occupied vehicle even if the firearm is inside the vehicle, as long as the individual is outside the vehicle when discharging the weapon. The court continued, noting that mere contradictions in the evidence do not warrant dismissal and that here the evidence was sufficient to go to the jury.

With regard to a felony-murder charge, the evidence was sufficient to show the underlying felony of discharging a firearm into occupied property (here, a vehicle). The court rejected the defendant’s argument that the evidence failed to establish that he was outside of the vehicle when he shot the victim.

No violation of double jeopardy occurred when the trial court sentenced the defendant for three counts of discharging a firearm into occupied property. Although the three gunshots were fired in quick succession, the bullet holes were in different locations around the house’s front door area. The evidence also showed that at least one shot was fired from a revolver, which, in single action mode, must be manually cocked between firings and, in double action mode, can still only fire a single bullet at a time. The other gun that may have been used was semiautomatic but it did not always function properly and many times, when the trigger was pulled, would not fire. Neither gun was a fully automatic weapon such as a machine gun. There was sufficient evidence to show that each shot was "distinct in time, and each bullet hit the [house] in a different place.” In reaching this holding, the court declined to apply assault cases that require a distinct interruption in the original assault for the evidence to support a second conviction.

In a discharging a firearm into occupied property case, a residence was occupied when the family was on the front porch when the weapon was discharged.

(1) This crime is a general intent crime; it does not require the State to prove any specific intent to shoot into the vehicle but only that the defendant intentionally fire a weapon under such circumstances where he or she had reason to believe the conveyance that ended up being shot was occupied. (2) N.C.P.J.I.—Crim. 208.90D, which was used in this case, properly charged the jury as to the required mental state.

Only a barreled weapon must meet the velocity requirements of G.S. 14-34.1(a) (capable of discharging shot, bullets, pellets, or other missiles at a muzzle velocity of at least 600 feet per second); a firearm does not.

(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of assault on a law enforcement officer inflicting serious bodily injury. The defendant asserted that he only used the amount of force reasonably necessary to resist an unlawful arrest. In the case, the officer responded to a 911 call reporting a suspicious person who refused to leave a public housing complex. The person was described as a male in his 30s wearing all black and near or around an older model, a black truck. The police department had an agency agreement with the complex giving officers the authority to remove trespassers from the property. Upon arrival the officer saw the male defendant wearing all black clothing and standing in front of an older model, black truck with a beer can in his hand. When the two spoke, the officer could smell a strong odor of alcohol emitting from the defendant. After further interaction, the officer explained to the defendant that he was trespassing. In part because of his impairment, the officer asked the defendant how he was going to get home. The defendant gave no clear answer. The officer informed the defendant that he was being “trespassed” and although not under arrest he would be taken for a “detox.” The officer attempted to handcuff the defendant in accordance with department policy to handcuff people transported by the police. When the officer reached for his handcuff pouch, the defendant became aggressive and used foul language, tensed up and tried to pull away from the officer. Trying to get control of the defendant, the officer pushed the defendant towards his vehicle. The officer informed the defendant that he was under arrest for resisting delaying and obstructing an officer. The defendant tried to turn around, raising his fist as if to “throw a punch.” The officer pointed his Taser at the defendant giving commands and advising him that he was under arrest. The defendant fled and the officer pursued. When the defendant fell to the ground on his back, the officer commanded him to roll over and put his hands behind his back. The defendant refused to comply and raised his feet and hands towards the officer “taking a combat stance.” The officer fired his Taser. However, the defendant was able to remove one of the Taser leads and took flight again. After the officer tackled the defendant, a struggle ensued. Backup arrived and assisted in securing the defendant. The officer sustained injuries from the struggle. There was sufficient evidence of the first element of the offense, an assault on the officer. Specifically, the officer testified that the defendant hit and bit him. There also was sufficient evidence with respect to serious bodily injury. Specifically, the officer testified that the bites caused extreme pain, skin removal, permanent scarring, and hospitalization. Photographs of the injuries were shown to the jury, as were the officer’s scars. The evidence also was sufficient to establish the third element, that the victim was a law enforcement officer performing his official duties at the time of the assault. The evidence showed that the officer was attempting to discharge his official duties as a routine patrol officer by responding to a report about a trespasser, conducting investigative work and acting on the results of his investigation. Finally, the evidence was sufficient to establish that the defendant knew or had reasonable grounds to know that the victim was a law enforcement officer. Here, the officer arrived in a marked patrol vehicle, was in uniform and told the defendant that he was a law enforcement officer.

(2) The trial court did not err by failing to instruct the jury on the right to resist an unlawful arrest. Here, an arrest occurred when under G.S. 122C-303, the officer attempted, against the defendant’s will, to take the publicly intoxicated defendant to jail to assist him. However, probable cause to arrest the defendant for second-degree trespass existed at this time. It does not matter that the officer did not arrest the defendant for that offense. The arrest was lawful because there was probable cause that the defendant had committed the trespass offense in the officer’s presence. Throughout the officer’s investigation, the defendant remained at the complex without authorization, even after he had been notified not to enter or remain there by the officer, a person authorized to so notify him. The court rejected the defendant’s argument that second-degree trespass does not create probable cause to arrest because that offense is a misdemeanor.

(3) The trial court did not err by failing to instruct the jury on the right to defend oneself from excessive force by a law enforcement officer where the evidence did not show that the officer’s use of force was excessive.

The evidence was sufficient to support a conviction for assault on a government officer under G.S. 14-33(c)(4). While attempting to separate the defendant from other individuals, the defendant spit at people walking behind the officer, hitting the officer with his spit. The defendant argued that because he intended to assault individuals standing behind the officer, the State failed to establish that he intended to assault the officer. The court rejected this argument, holding that the offense was a general intent crime. Here, the defendant conceded that he knew the victim was a law enforcement officer and that he intended to commit an assault. The court concluded: “we are satisfied that when Defendant spat at members of the crowd and [the] Officer . . . was struck by Defendant’s spit, the requirements of [the statute] were satisfied.” It continued: “the knowledge element of assault on a government officer in violation of [G.S. 14-33(c)(4)] is satisfied whenever a defendant while in the course of assaulting another individual instead assaults an individual he knows, or reasonably should know, is a government officer.”

The court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss the charge of assault causing physical injury on a law enforcement officer, which occurred at the local jail. After arresting the defendant, Captain Sumner transported the defendant to jail, escorted him to a holding cell, removed his handcuffs, and closed the door to the holding cell, believing it would lock behind him automatically. However, the door remained unlocked. When Sumner noticed the defendant standing in the holding cell doorway with the door open, he told the defendant to get back inside the cell. Instead, the defendant tackled Sumner. The defendant argued that there was insufficient evidence that the officer was discharging a duty of his office at the time. The court rejected this argument, concluding that “[b]y remaining at the jail to ensure the safety of other officers,” Sumner was discharging the duties of his office. In the course of its holding, the court noted that “unlike the offense of resisting, delaying, or obstructing an officer, . . . criminal liability for the offense of assaulting an officer is not limited to situations where an officer is engaging in lawful conduct in the performance or attempted performance of his or her official duties.”

The defendant was properly convicted of two counts of malicious conduct by a prisoner when he twice spit on an officer while officers were attempting to secure him. The defendant had argued that only conviction was proper because his conduct occurred in a continuous transaction. The court found that each act was distinct in time and location: first the defendant spit on the officer’s forehead while the defendant was still in the house; five minutes later he spit on the officer’s arm after being taken out of the house.

The evidence was sufficient to establish that the defendant emitted bodily fluids where it showed that he spit on an officer. The evidence was sufficient to show that the defendant acted knowingly and willfully where the defendant was uncooperative with the officers, was belligerent towards them, and immediately before the spitting, said to an approaching officer: “F--k you, n----r. I ain’t got nothing. You ain’t got nothing on me.” The evidence was sufficient to show that the defendant was in custody when he was handcuffed and seated on a curb, numerous officers were present, and the defendant was told that he was not free to leave.

There was a sufficient factual basis to support a plea to assault on a handicapped person where the prosecutor’s summary of the facts indicated that the victim was 80 years old, crippled in her knees with arthritis, and required a crutch to walk; the defendant told the victim that he would kill her and cut her heart out, grabbed her, twice slung her across the room, and hit her with her crutch.

The defendant was convicted after a jury trial of habitual misdemeanor assault and felony assault inflicting serious bodily injury for the same assaultive act. The trial court imposed consecutive sentences. The defendant appealed, arguing that the trial court erred by sentencing him for both habitual misdemeanor assault and the felony assault. The Court of Appeals vacated the habitual misdemeanor assault conviction, holding over a dissent that the defendant could not be sentenced for both crimes when the offenses arose from the same act. State v. Fields, ___ N.C. App. ___, 827 S.E.2d 120 (2019). The State appealed to the Supreme Court of North Carolina based on the dissent, and also sought discretionary review on the issue of whether, even if it was impermissible for the trial judge to sentence the defendant for both convictions, the Court of Appeals erred by vacating one of the convictions instead of arresting judgment on it. (1) On the first issue, the Supreme Court affirmed the Court of Appeals, concluding that the defendant could not be sentenced for both convictions that arose out of the same assaultive act. The misdemeanor assault statute, G.S. 14-33, includes prefatory language saying the law applies “[u]nless the conduct is covered under some other provision of law providing greater punishment”—language the appellate courts have generally interpreted to bar simultaneous punishments for the same act. Though the habitual misdemeanor assault statute, G.S. 14-33.2, does not include that language, the Supreme Court concluded that the principle still applies, as the misdemeanor assault is necessarily a part of the “upgraded” habitual misdemeanor assault conviction. The felony assault conviction based on the same assaultive act was a “provision of law providing greater punishment” that invoked the prefatory language of the misdemeanor assault statute, which in turn meant that the defendant could not be punished for habitual misdemeanor assault. (2) On the second issue, the Court concluded that the proper remedy when such prefatory language bars double punishment for the same act is to arrest judgment on one of the judgments, not to vacate it.

In a habitual misdemeanor assault case, the trial court erred by failing to instruct the jury that the defendant’s assault under G.S. 14-33 must have inflicted physical injury. However, given the uncontroverted evidence regarding the victim’s injuries, the error did not rise to the level of plain error.

The trial court did not err by denying the defendant’s motion to dismiss a charge of attempted malicious castration of a privy member. The victim was the son of the woman with whom the defendant lived; a doctor found 33 injuries on the victim’s body, including a 2.5 inch laceration on his penis. The defendant argued that there was insufficient evidence that he committed an assault with malice aforethought and specific intent to maim the victim’s privy member. Although the victim gave conflicting evidence as to how the defendant cut his penis, the defendant’s malice and specific intent to maim could be reasonably inferred from the numerous acts of humiliation and violence experienced by the victim prior to the defendant’s assault on his penis.

With one justice not participating in the case and the remaining six justices divided equally, the decision of the Court of Appeals was left undisturbed and stands without precedential value. The decision of the Court of Appeals, ___ N.C. App. ___, 843 S.E.2d 700 (2020), was previously summarized as follows:

The defendant was convicted of assault with a deadly weapon with intent to kill inflicting serious injury (Class C felony) and assault by strangulation (Class H felony) based on his assault of his wife. The defendant’s wife was rendered unconscious during the assault and was hospitalized for three days as a result of her injuries, which include bruises around her neck, brain bleed, multiple contusions, and burst blood vessels in her eyes.

The trial court consolidated the offense for judgment and sentenced the defendant to a minimum of 73 and a maximum of 100 months imprisonment.

The assault by strangulation statute, G.S. 14-32.4(b), provides that “[u]nless the conduct is covered under some other provision of law providing greater punishment, any person who assaults another person and inflicts physical injury by strangulation is guilty of a Class H felony.” Id. (emphasis added).

The defendant argued that on appeal that because his assaultive conduct was covered by a statute providing greater punishment—namely, the offense of assault with a deadly weapon with intent to kill inflicting serious injury, for which he was convicted—the trial court violated the statutory mandate in G.S. 14-32.4(b) when it sentenced him for assault by strangulation.

The State argued that there were two separate assaults supporting each of the charges. The assault leading to the more serious offense was with fists. The other assault was by strangulation.

Over a dissent, the Court of Appeals agreed with the defendant. It rejected the State’s argument on the basis that there was no evidence of a distinct interruption between the assaultive conduct. Instead, the evidence showed that the victim’s injuries resulted from a single, if prolonged, assaultive act. The appellate court held that because the two offenses arose from the same conduct, the trial court erred in sentencing the defendant for assault by strangulation. The court vacated the defendant’s conviction for assault by strangulation and remanded the case to the trial court for resentencing.

A dissenting judge would have found no error on the basis that an assault by intentionally strangling the victim is not the same conduct as intentionally striking the victim with fists or hands.

The defendant was convicted after a jury trial of habitual misdemeanor assault and felony assault inflicting serious bodily injury for the same assaultive act. The trial court imposed consecutive sentences. The defendant appealed, arguing that the trial court erred by sentencing him for both habitual misdemeanor assault and the felony assault. The Court of Appeals vacated the habitual misdemeanor assault conviction, holding over a dissent that the defendant could not be sentenced for both crimes when the offenses arose from the same act. State v. Fields, ___ N.C. App. ___, 827 S.E.2d 120 (2019). The State appealed to the Supreme Court of North Carolina based on the dissent, and also sought discretionary review on the issue of whether, even if it was impermissible for the trial judge to sentence the defendant for both convictions, the Court of Appeals erred by vacating one of the convictions instead of arresting judgment on it. (1) On the first issue, the Supreme Court affirmed the Court of Appeals, concluding that the defendant could not be sentenced for both convictions that arose out of the same assaultive act. The misdemeanor assault statute, G.S. 14-33, includes prefatory language saying the law applies “[u]nless the conduct is covered under some other provision of law providing greater punishment”—language the appellate courts have generally interpreted to bar simultaneous punishments for the same act. Though the habitual misdemeanor assault statute, G.S. 14-33.2, does not include that language, the Supreme Court concluded that the principle still applies, as the misdemeanor assault is necessarily a part of the “upgraded” habitual misdemeanor assault conviction. The felony assault conviction based on the same assaultive act was a “provision of law providing greater punishment” that invoked the prefatory language of the misdemeanor assault statute, which in turn meant that the defendant could not be punished for habitual misdemeanor assault. (2) On the second issue, the Court concluded that the proper remedy when such prefatory language bars double punishment for the same act is to arrest judgment on one of the judgments, not to vacate it.

State v. Wilkes, 367 N.C. 116 (Oct. 4, 2013)

The court per curiam affirmed the decision below, State v. Wilkes, 225 N.C. App. 233 (Jan. 15, 2013), in which the court of appeals had held, over a dissent, that the State presented substantial evidence supporting two separate assaults. The defendant attacked his wife with his hands. When his child intervened with a baseball bat to protect his mother, the defendant turned to the child, grabbed the bat and then began beating his wife with the bat. The court concluded that the assaults were the result of separate thought processes, were distinct in time, and the victim sustained injuries on different parts of her body as a result of each assault.

In this Buncombe County case, the defendant pled guilty to assault on a female, violation of a domestic violence protective order, assault inflicting serious bodily injury, and assault by strangulation after an incident in which he held the victim captive and broke her jaw. The Court of Appeals granted the defendant’s petition for writ of certiorari to review the sufficiency of the factual basis for his plea to the three assault charges. The appellate court concluded that the State’s factual summary gave no indication of a distinct interruption between incidents that would support multiple assault convictions. To the contrary, the prosecutor’s summary referred to “the assault” and “the altercation” in the singular. Moreover, in light of the prefatory language in the relevant assault statutes indicating that they apply “[u]nless the conduct is covered under some other provision of law providing greater punishment,” the Court of Appeals concluded that the trial court was only authorized to enter judgment and sentence the defendant for the most serious assault—in this case the Class F assault inflicting serious bodily injury. The court remanded the matter to superior court with instructions to arrest judgment on the lesser assaults and to resentence the defendant on the remaining charges.

The defendant and the victim were in a relationship and took a vacation trip to the beach. While at the vacation house, the defendant became enraged after consuming drugs and alcohol and committed a series of violent assaults against the victim that included punching her in the nose, biting her ears, head-butting her, and strangling her to the point of vomiting. The assaults began at the vacation house and continued throughout a forced drive back from the beach and after returning to the victim’s home. The victim eventually spoke with her family by phone, who came to her house and contacted emergency services. The victim suffered a broken nose, ruptured eardrum, concussion, and other serious injuries. The defendant was subsequently tried and convicted for kidnapping, three different assault offenses, and communicating threats.

On appeal, the defendant first argued that his motion to dismiss for insufficiency of the evidence should have been granted because the evidence only established a single, continuous assault rather than multiple separate offenses. The appellate court held that this argument was not made at trial and therefore it was not preserved for appeal; but even if it had been raised at trial, there was evidence to support multiple assault convictions. To support multiple convictions, there must be “separate and distinct” assaults. To decide whether the assaults are sufficiently distinct, the court considers whether each act: (i) requires a separate thought process; (ii) is distinct in time; and (iii) results in a different outcome. In this case, the court held that the defendant employed a separate thought process in his decision to inflict each distinct punch, slap, kick, bite and head butt, and each assault occurred at a different point in time and resulted in different injuries. Therefore, even if the argument had been made and preserved, the trial court did not err by denying the motion to dismiss.

The defendant next argued that the trial court should have granted his motion to dismiss the assault charge alleging use of a deadly weapon because there was insufficient evidence that his hands and feet were deadly weapons. Hands and feet can be a deadly weapon based on the manner in which they are used and the relative size and condition of the parties. In this case, based on defendant’s height and size relative to the victim, the violent nature of the attacks, and the victim’s severe injuries, the appellate court held that it was not error to deny the motion to dismiss and let the jury decide whether his hands and feet were deadly weapons.

Defendant’s final argument, asserting that he was materially prejudiced by the trial court’s failure to conduct a charge conference as required by G.S. 15A-1231(b), was denied because the record established that a conference did take place, and the defense indicated they were satisfied with the proposed instructions and made no objection after the instructions were given.

A defendant cannot be convicted of two assault offenses (here, assault by pointing a gun and assault with a deadly weapon) based on a single assault. For a defendant to be charged with multiple counts of assault, there must be multiple assaults; this requires evidence of a distinct interruption in the original assault followed by a second assault. Here, the charges arose from actions that occurred in rapid succession without interruption.

The trial court did not err by sentencing the defendant for both of assault on a female and assault by strangulation. Prefatory language in G.S. 14-33(c) provides that “Unless the conduct is covered under some other provision of law providing greater punishment,” assault on a female is punished as a Class A1 misdemeanor. Here, the defendant was also punished for the higher class offense of assault by strangulation. The prefatory clause of G.S. 14-33(c) only applies when both assaults are based on the same conduct. Here, the assaults were based on different conduct. The defendant’s act of pinning down the victim and choking her to stop her from screaming supported the assault by strangulation conviction. His acts of grabbing her hair, tossing her down a rocky embankment, and punching her face and head multiple times supported the assault on a female conviction. The two assaults were sufficiently separate and distinct. First, they required different thought processes. The defendant’s decision to grab the victim’s hair, throw her down the embankment and repeatedly punch her required a separate thought process from his decision to pin her down and strangle her to quiet her screaming. Second the assaults were distinct in time. After the defendant’s initial physical assault and then the strangulation, he briefly ceased his assault when she stopped screaming and resisting. But when she resumed screaming and he again hit her in the head multiple times. Third, the victim sustained injuries to different parts of her body.

 

Because misdemeanor larceny and simple assault are lesser included offenses of common law robbery, the trial court erred by sentencing the defendant for all three offenses. The court rejected the State’s argument that the defendant was not prejudiced by this error because all three convictions were consolidated for judgment and the defendant received the lowest possible sentence in the mitigated range. The court noted that the State’s argument ignores the collateral consequences of the judgment. The court thus arrested judgment on the convictions for misdemeanor larceny and simple assault.

The trial court erred by imposing sentences for assault with a deadly weapon with intent to kill inflicting serious injury and assault inflicting serious bodily injury based on the same incident. The statute proscribing the lesser of the two offenses, a Class F felony, includes the following prefatory language: “Unless the conduct is covered under some provision of law providing greater punishment.” Here, the defendant was also convicted of the more serious assault, a Class C felony. Thus multiple punishment is precluded.

(1) Under State v. Tirado, 358 N.C. 551, 579 (2004) (trial court did not subject the defendants to double jeopardy by convicting them of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI) arising from the same conduct), no violation of double jeopardy occurred when the trial court denied the defendant’s motion to require the State to elect between charges of attempted first-degree murder and AWDWIKISI. (2) Because the assault inflicting serious bodily injury statute begins with the language “Unless the conduct is covered under some other provision of law providing greater punishment,” the trial court erred by sentencing the defendant to this Class F felony when it also sentenced the defendant for AWDWIKISI, a Class C felony. [Author’s note: Although the court characterized this as a double jeopardy issue, it is best understood as one of legislative intent. Because each of the offenses requires proof of an element not required for the other the offenses are not the “same” for purposes of double jeopardy. Thus, double jeopardy is not implicated. However, even if offenses are not the “same offense,” legislative intent expressed in statutory provisions may bar multiple convictions, as it does here with the “unless covered” language. For a more complete discussion of double jeopardy, see the chapter in my judges’ Benchbook here]

The trial court did not err by convicting the defendant of both robbery with a dangerous weapon and assault with a deadly weapon where each conviction arose from discrete conduct.

The trial court erred by sentencing the defendant for both assault inflicting serious bodily injury under G.S. 14-32.4(a) and assault with a deadly weapon inflicting serious injury under G.S. 14-32(b), when both charges arose from the same assault. The court reasoned that G.S. 14-32(b) prohibits punishment of any person convicted under its provisions if “the conduct is covered under some other provision of law providing greater punishment.” Here, the defendant’s conduct pertaining to his charge for and conviction of assault with a deadly weapon inflicting serious injury was covered by the provisions of G.S. 14-32(b), which permits a greater punishment than that provided for in G.S. 14-32.4(a).

The trial court erred by sentencing the defendant for both habitual misdemeanor assault and assault on a female where both convictions arose out of the same assault. The statute provides that “unless the conduct is covered under some other provision of law providing greater punishment,” an assault on a female is a Class A1 misdemeanor. Here, the conduct was covered under another provision of law providing greater punishment, habitual misdemeanor assault, a Class H felony.

The defendant could not be convicted and sentenced for both assault inflicting serious bodily injury and assault on a female when the convictions were based on the same conduct. The court concluded that language in the assault on a female statute (“[u]nless the conduct is covered under some other provision of law providing greater punishment . . . .”) reflects a legislative intent to limit a trial court’s authority to impose punishment for assault on a female when punishment is also imposed for higher class offenses that apply to the same conduct (here, assault inflicting serious bodily injury).

(1) A defendant may be convicted of assault by strangulation and assault with a deadly weapon inflicting serious injury where two incidents occurred. The fact that these assaults were part of a pattern of chronic child abuse does not mean that they are considered one assault. (2) The State sufficiently proved two distinct incidents of assault with a deadly weapon inflicting serious injury supporting two convictions and three instances of felony child abuse supporting three such convictions. The fact that the assaults form part of chronic and continual abuse did not alter its conclusion.

State v. Hope, 223 N.C. App. 468 (Nov. 20, 2012)

In an assault with a deadly weapon inflicting serious injury case, the defendant is not entitled to a simple assault instruction where the deadly weapon element is left to the jury but there is uncontroverted evidence of serious injury.

No double jeopardy violation occurred when the defendant was convicted of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious bodily injury based on the same events. Each offense includes an element not included in the other.

Citing State v. Washington, 141 N.C. App. 354 (2000), the court held that the defendant was properly charged and convicted of attempted murder and assault as to each victim, even though the offenses arose out of a single course of conduct involving multiple shots from a gun.

A defendant may not be convicted of assault with a deadly weapon inflicting serious injury and assault inflicting serious bodily injury arising out of the same conduct.

Assault is not a lesser-included offense of sexual battery.

The evidence was insufficient to establish that a secret assault occurred. In the middle of the night, the victim heard a noise and looked up to see someone standing in the bedroom doorway. The victim jumped on the person and hit him with a chair. The victim was aware of the defendant’s presence and purpose before the assault began. In fact, he started defending himself before the defendant’s assault was initiated. 

The evidence was insufficient to support a conviction where the state failed to produce evidence that the assault was done in a secret manner. To satisfy this element, the state must offer evidence showing that the victim is caught unaware.

In this malicious maiming case, the court rejected the defendant’s argument that the trial court erred by disjunctively instructing the jury that it could convict him if it found that he had “disabled or put out” the victim’s eye. Relying on cases from other jurisdictions, the court held that the total loss of eyesight, without actual physical removal, is sufficient to support a finding that an eye was “put out” and, therefore, is sufficient to support a conviction for malicious maiming under G.S. 14-30. It went on to reject the defendant’s argument that because the term disabled could have been interpreted as something less than complete blindness, the trial court’s instructions were erroneous. The court reasoned that based on the evidence in the case—it was uncontroverted that the victim completely lost his eyesight because of the defendant’s actions—the jury could not have concluded that the term disabled meant something other than complete blindness. Thus, the court concluded that it need not decide whether partial or temporary blindness constitutes malicious maiming under the statute.

In a maiming without malice case, the evidence was sufficient to show that the defendant intended to strike the victim’s finger with the intent to disable him. The intent to maim or disfigure may be inferred from an act which does in fact disfigure the victim, unless the presumption is rebutted by evidence to the contrary. Here, the near severing of the victim’s finger triggered that presumption, which was not rebutted.

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.

In case where the defendant was convicted of misdemeanor child abuse and contributing to the delinquency of a minor, the court reversed the opinion below, State v. Reed, ___ N.C. App. ___, 789 S.E.2d 703 (2016), for the reasons stated in the dissent. Considering the defendant’s evidence, along with the State’s evidence, in this appeal from a denial of a motion to dismiss, the Court of Appeals held, over a dissent, that the evidence was insufficient to support a conviction of misdemeanor child abuse. The evidence showed that the defendant went to use the bathroom in her home for a few minutes, and her toddler, Mercadiez, managed to fall into their outdoor pool and drown. The defendant’s evidence, which supplemented and did not contradict the State’s evidence, showed that the defendant left the child in the care of another responsible adult while she used the bathroom. Although the concurring judge did not agree, the court went on to hold that the motion should also have been granted even without consideration of the defendant’s evidence. Specifically, the State’s evidence failed to establish that the defendant’s conduct was “by other than accidental means.” Reviewing prior cases, the court found: “the State’s evidence never crossed the threshold from ‘accidental’ to ‘nonaccidental.’” It continued:

The known danger here was an outdoor pool. The only purposeful action defendant took, even in the light most favorable to the State, was that defendant went to the bathroom for five to ten minutes. In choosing to go to the restroom, defendant did not leave her child in a circumstance that was likely to create physical injury. . . . If defendant’s conduct herein is considered enough to sustain a conviction for misdemeanor child abuse, it seems that any parent who leaves a small child alone in her own home, for even a moment, could be prosecuted if the child is injured during that time, not because the behavior she engaged in was negligent or different from what all other parents typically do, but simply because theirs is the exceedingly rare situation that resulted in a tragic accident.

With the same lineup of opinions, the court held that the evidence was insufficient to support a conviction of contributing to the delinquency of a minor.

The dissenting judge believed the evidence was sufficient to support both convictions. The dissenting judge broke from the majority, finding that the defendant’s evidence regarding the events immediately before the child drowned was contradictory to, not consistent with, the State’s evidence. According to the dissenting judge, the critical issue was not whether adults were in the home at the time but rather who was supervising the child. “On that critical issue,” the dissenting judge concluded, “the State’s evidence showed that defendant left her 19-month-old baby in the care of [a] nine-year-old [child]. I simply do not agree with the majority’s assertion that the acknowledged presence of [another adult] somewhere inside a multi-room house, without any evidence that he could hear or see Mercadiez as she played outside on the side porch with other children, was in any way relevant to the question of who was supervising Mercadiez when she wandered away to her death.” Citing the evidence presented, the dissenting judge disagreed that the State offered no evidence of a lack of supervision by the defendant and asserted that because the defendant’s husband’s version of the events was inconsistent with the State’s evidence, it should not have been considered with respect to the motion to dismiss. The dissenting judge found that the evidence was sufficient to support the convictions for misdemeanor child abuse and contributing to the delinquency of a juvenile by neglect. The dissenting judge summarized the evidence as follows:

Taken together the State’s evidence at trial shows that defendant knew (1) how quickly unsupervised toddlers in general could wander away into dangerous situations, (2) that two of her young children, including a toddler who appears to have been Mercadiez, had wandered unsupervised to the edge of the street only the month before, (3) that some of defendant’s older children were in the habit of leaving gates open which allowed younger children to wander, (4) how attractive and dangerous open water sources like her backyard pool could be for toddlers, and (5) that defendant had previously been held criminally responsible in the death of a toddler she was babysitting after that child was left unsupervised inside defendant’s home for five to fifteen minutes, managed to get outside, and wandered into a creek where she drowned. Despite this knowledge, defendant still chose to (6) leave toddler Mercadiez outside on a side porch (7) supervised only by other children (8) while defendant spent five to ten minutes in a bathroom where she could not see or hear her youngest child.

 

The child victim in this case, “David,” died primarily as a result of blunt force abdominal injuries, with a number of other external and internal injuries as contributing factors. The state’s evidence indicated that the defendant abused David on several occasions during a two-month period, ultimately leading to the child’s death. The defendant was charged with first-degree murder based on causing the victim’s death in the course of committing felonious child abuse under G.S. 14-318.4(a), and was convicted at trial.

On appeal, the defendant argued that there was insufficient evidence he was a “person providing care to or supervision of” the minor victim, as required for a conviction under G.S. 14-318.4(a), and therefore he could not be guilty of the underlying offense that supported the felony murder conviction. After the reviewing the state’s evidence, the appellate court disagreed. The defendant was romantically involved with “R.W.,” the victim’s mother, and he had recently moved in with R.W. and her children and slept at their house every weeknight. The defendant also helped potty train the children, played with them, put them to bed, cooked meals, and did yardwork around the home. The court acknowledged that the child abuse statute does not define what constitutes “care and supervision,” but prior cases such as State v. Carilo, 149 N.C. App. 543 (2002) have “found guidance in our State’s juvenile code under N.C. Gen. Stat. § 7B-101(3) defining a ‘caretaker.’” To determine whether an adult qualifies under the abuse statute, the court looks at the totality of the circumstances including the duration and frequency of care provided by the adult, the location where it occurs, and the amount of decision-making authority held by the adult. Finding that the state’s evidence in this case “mirrors the evidence we found sufficient in Carrilo,” the defendant’s conviction was unanimously affirmed.

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.

Finding itself bound by its prior decision in this felony child abuse case, the Court of Appeals rejected the defendant’s argument that the trial court committed plain error by improperly instructing the jury on the definition of the term “sexual act.” The defendant was charged under G.S. 14-318.4(a2). That statute does not define the term “sexual act” as used in the proscribed offense. That term is however defined in a separate subchapter of the General Statutes—G.S. 14-27.20(4)--to include various forms of sexual activity but excluding vaginal intercourse. The court noted that in two earlier cases--State v. Lark, 198 N.C. App. 82 (2009), and State v. Stokes, 216 N.C. App. 529 (2011)--it had applied the definition of sexual act found in G.S. 14-27.20(4) to felony child abuse without explaining why it did so. Then, in State v. McClamb, 234 N.C. App. 753 (2014), the court squarely addressed the question of whether the term sexual act as used in the child abuse statute included vaginal intercourse. McClamb distinguished Stokes, explaining that it only addressed the issue of digital penetration and did not hold that the definition of sexual act in the child abuse statute excludes vaginal intercourse. McClamb also distinguished Lark, explaining that it was limited to an analysis of fellatio as a sexual act. The court addressed the issue again in State v. Alonzo, __ N.C. App. __, __, 819 S.E.2d 584, 587 (2018). That decision noted a conflict between McClamb, Stokes, and Lark, and applying In re Civil Penalty, 324 N.C. 373 (1989), declined to follow McClamb, concluding that it was bound by the earlier Lark decision. Because the state Supreme Court later stayed the mandate in Alonzo, that case does not yet have any precedential effect. The court declined the defendant’s invitation to adopt the same reasoning applied in Alonzo and conclude that McClamb is not good law, finding that In re Civil Penalty “does not empower us to overrule precedent in this way.” It explained: 

In re Civil Penalty stands for the proposition that, where a panel of this Court has decided a legal issue, future panels are bound to follow that precedent. This is so even if the previous panel’s decision involved narrowing or distinguishing an earlier controlling precedent—even one from the Supreme Court—as was the case in In re Civil Penalty. Importantly, In re Civil Penalty does not authorize panels to overrule existing precedent on the basis that it is inconsistent with earlier decisions of this Court.

The court went on to note that the Supreme Court has authorized it to disregard its own precedent in certain rare situations, such as when two lines of irreconcilable precedent developed independently. But this is not such a case. The court concluded that under In re Civil Penalty it must follow McClamb “because it is the most recent, controlling case addressing the question.” Thus, the trial court’s instructions were not erroneous.

State v. Osborne, ___ N.C. App. ___, 821 S.E.2d 268 (Oct. 2, 2018) rev’d in part on other grounds, ___ N.C. ___, 831 S.E.2d 328 (Aug 16 2019)

The evidence was sufficient to support the defendant’s convictions for misdemeanor child abuse. The charges asserted that the defendant used heroin in the presence of a child. The court rejected the defendant’s argument that the State was required to prove, through chemical analysis, that a substance seized at the premises was in fact heroin. Here, the evidence showed that officers discovered the defendant unconscious from an apparent drug overdose; the defendant admitted to officers that she used heroin before becoming unconscious; and drug paraphernalia consistent with heroin use was found in the hotel room occupied by the defendant and her children. This evidence was sufficient to send the charges to the jury.

In a case where the defendant was convicted of child abuse inflicting serious bodily injury under G.S. 14-318.4(a3), there was insufficient evidence that the victim experienced serious bodily injury. The victim, the defendant’s daughter, experienced a femur fracture that required surgery temporarily placing rods in her leg, and resulting in permanent scarring. The court rejected the State’s argument that the presence of a scar is sufficient by itself to show serious bodily injury. Here, the victim’s scars resulted from surgery. By the time of trial, the scars had healed and she was engaged in unrestricted physical activities. The State’s expert testified that the child should have no permanent disfiguration or any loss or impairment of function due to the scars. On these facts the scars by themselves are insufficient evidence of permanent disfigurement. The court went on to reject the State’s argument that the victim suffered extreme pain and loss of use of her leg for a period of time, noting that the statute requires more. It is not enough for the victim to suffer extreme pain; the statute requires a permanent or protracted condition that causes extreme pain. Here, the victim testified that her leg stopped hurting long before trial and the evidence showed she was cleared to engage in normal activities within nine months of her surgery. No testimony or other evidence showed that the victim was ever at risk of death due to her injury. Thus, the state presented insufficient evidence of serious bodily injury. The evidence was sufficient however to support a conviction of child abuse resulting in serious physical injury.

 

In this misdemeanor child abuse case, where the defendant hit his son with a paddle, the trial court committed reversible error with respect to the jury instructions. After the defendant paddled his 10-year-old son for refusing to eat at the family dinner table, the child experienced bruising and pain for several days. The defendant was charged with felony child abuse. At the charge conference, the trial judge told the parties that he would instruct the jury that it could not convict the defendant if it found that the child’s injuries were inflicted as a result of the defendant’s “moderate punishment to correct” his child. Neither party objected to this instruction. The trial judge further indicated that he would give an instruction defining “moderate punishment” as “punishment that does not cause lasting injury.” The State objected to this definition, arguing that moderate punishment should not be limited to that which produced lasting injuries. The trial judge agreed and, over the defendant’s objection, struck this definition. Thus, the trial judge left the term moderate punishment undefined. The jury found the defendant guilty of misdemeanor child abuse. On appeal the defendant argued that the trial court erred when it struck the proposed instruction defining moderate punishment as punishment which caused lasting injury to the child. The court agreed that the instructions impermissibly allowed the jury to convict the defendant simply because they thought his degree of punishment was excessive, even if they thought he was acting in good faith and did not inflict a lasting injury on the child. The court reversed and remanded for a new trial, noting that based on the case law discussed in the court’s opinion, “it would have been proper for the State to request an instruction advising the jury that it could nonetheless convict if it determined that Defendant acted out of ‘wickedness of purpose,’ irrespective of the extent of the physical injuries.”

Child-abuse under G.S. 14-318.4(a) requires that the defendant intentionally inflict serious physical injury on a child or intentionally commit an assault on the child which results in serious physical injury. These are two separate prongs and the State is not required to prove that the defendant specifically intended that the injury be serious; proof that the defendant intentionally committed an assault on the child which results in serious physical injury is sufficient.

Because subarachnoid hemorrhaging constitutes “serious bodily injury,” the evidence was sufficient to convict the defendant of felonious child-abuse inflicting serious bodily injury under G.S. 14-318.4(a3). The court rejected the defendant’s argument that since the child did not actually suffer acute consequences from the hemorrhages, his brain injury never presented a substantial risk of death. Among other things, a medical expert testified that bleeding on the brain could lead to a number of issues including developmental delays and even “acute illness and death.” Citing this and other evidence, the court concluded that there was sufficient evidence that the child’s brain injury created a substantial risk of death.

The evidence was sufficient to survive the defendant’s motion to dismiss a misdemeanor child abuse charge under G.S. 14-318.2(a). The case arose from an incident in which the defendant left her young child unattended in a vehicle on a cold day. The State proceeded on the theory that she had created or allowed to be created a substantial risk of physical injury to the child. The court found the evidence sufficient, noting that she left the child, who was under 2 years old, alone and helpless and outside of her line of sight for over 6 minutes inside a vehicle with one of its windows rolled more than halfway down in 18° weather with accompanying sleet, snow and wind. It concluded: “Given the harsh weather conditions, [the child’s] young age, and the danger of him will being abducted (or of physical harm being inflicted upon him) due to the window being open more than halfway, we believe a reasonable juror could have found that Defendant ‘created a substantial risk of physical injury’ to him by other than accidental means.”

A defendant may be convicted of child abuse by sexual act under G.S. 14-318.4(a2) when the underlying sexual act is vaginal intercourse.

Digital penetration of the victim’s vagina can constitute a sexual act sufficient to support a charge of child abuse under G.S. 14-318.4(a2) (sexual act).

In case where the defendant was convicted of misdemeanor child abuse and contributing to the delinquency of a minor, the court reversed the opinion below, State v. Reed, ___ N.C. App. ___, 789 S.E.2d 703 (2016), for the reasons stated in the dissent. Considering the defendant’s evidence, along with the State’s evidence, in this appeal from a denial of a motion to dismiss, the Court of Appeals held, over a dissent, that the evidence was insufficient to support a conviction of misdemeanor child abuse. The evidence showed that the defendant went to use the bathroom in her home for a few minutes, and her toddler, Mercadiez, managed to fall into their outdoor pool and drown. The defendant’s evidence, which supplemented and did not contradict the State’s evidence, showed that the defendant left the child in the care of another responsible adult while she used the bathroom. Although the concurring judge did not agree, the court went on to hold that the motion should also have been granted even without consideration of the defendant’s evidence. Specifically, the State’s evidence failed to establish that the defendant’s conduct was “by other than accidental means.” Reviewing prior cases, the court found: “the State’s evidence never crossed the threshold from ‘accidental’ to ‘nonaccidental.’” It continued:

The known danger here was an outdoor pool. The only purposeful action defendant took, even in the light most favorable to the State, was that defendant went to the bathroom for five to ten minutes. In choosing to go to the restroom, defendant did not leave her child in a circumstance that was likely to create physical injury. . . . If defendant’s conduct herein is considered enough to sustain a conviction for misdemeanor child abuse, it seems that any parent who leaves a small child alone in her own home, for even a moment, could be prosecuted if the child is injured during that time, not because the behavior she engaged in was negligent or different from what all other parents typically do, but simply because theirs is the exceedingly rare situation that resulted in a tragic accident.

With the same lineup of opinions, the court held that the evidence was insufficient to support a conviction of contributing to the delinquency of a minor.

The dissenting judge believed the evidence was sufficient to support both convictions. The dissenting judge broke from the majority, finding that the defendant’s evidence regarding the events immediately before the child drowned was contradictory to, not consistent with, the State’s evidence. According to the dissenting judge, the critical issue was not whether adults were in the home at the time but rather who was supervising the child. “On that critical issue,” the dissenting judge concluded, “the State’s evidence showed that defendant left her 19-month-old baby in the care of [a] nine-year-old [child]. I simply do not agree with the majority’s assertion that the acknowledged presence of [another adult] somewhere inside a multi-room house, without any evidence that he could hear or see Mercadiez as she played outside on the side porch with other children, was in any way relevant to the question of who was supervising Mercadiez when she wandered away to her death.” Citing the evidence presented, the dissenting judge disagreed that the State offered no evidence of a lack of supervision by the defendant and asserted that because the defendant’s husband’s version of the events was inconsistent with the State’s evidence, it should not have been considered with respect to the motion to dismiss. The dissenting judge found that the evidence was sufficient to support the convictions for misdemeanor child abuse and contributing to the delinquency of a juvenile by neglect. The dissenting judge summarized the evidence as follows:

Taken together the State’s evidence at trial shows that defendant knew (1) how quickly unsupervised toddlers in general could wander away into dangerous situations, (2) that two of her young children, including a toddler who appears to have been Mercadiez, had wandered unsupervised to the edge of the street only the month before, (3) that some of defendant’s older children were in the habit of leaving gates open which allowed younger children to wander, (4) how attractive and dangerous open water sources like her backyard pool could be for toddlers, and (5) that defendant had previously been held criminally responsible in the death of a toddler she was babysitting after that child was left unsupervised inside defendant’s home for five to fifteen minutes, managed to get outside, and wandered into a creek where she drowned. Despite this knowledge, defendant still chose to (6) leave toddler Mercadiez outside on a side porch (7) supervised only by other children (8) while defendant spent five to ten minutes in a bathroom where she could not see or hear her youngest child.

 

(1) Following, State v. Stevens, 228 N.C. App. 352 (2013), the court held that the offense of contributing to a juvenile’s being delinquent, undisciplined, abused or neglected (G.S. 14-316.1) does not require the defendant to be the juvenile’s parent, guardian, custodian, or caretaker; the defendant need only be a person who causes a juvenile to be in a place or condition where the juvenile does not receive proper care from a caretaker or is not provided necessary medical care. (2) The evidence was sufficient to show that the defendant placed the child in a position in which she could be found to be abused or neglected. The defendant entered the child’s bedroom when she was trying to sleep, tried to get her to drink alcohol, squeezed her buttocks, asked her to suck his thumb and asked to suck her chest. (3) Although the trial court’s jury instructions on the G.S. 14-316.1 charge were erroneous, the error did not rise to the level of plain error.

The evidence was sufficient to show that the defendant committed the offense of contributing to the delinquency/neglect of a minor. The court rejected the defendant’s argument that the State presented no evidence that the defendant was the minor’s parent, guardian, custodian, or caretaker, concluding that was not an element of the offense. The court further found that the State presented sufficient evidence that the defendant put the juvenile in a place or condition whereby the juvenile could be adjudicated neglected. Specifically, he took the juvenile away from the area near the juvenile's home, ignored the juvenile after he was injured, and then abandoned the sleeping juvenile in a parking lot. The court concluded: “Defendant put the juvenile in a place or condition where the juvenile could be adjudicated neglected because he could not receive proper supervision from his parent.”

In this neglect of an elder adult case, the trial court did not err by denying the defendant’s motion to dismiss for insufficient evidence that she was her elderly mother’s “caretaker” as that word is defined by G.S. 14-32.3(d)(1), and the trial court did not commit plain error by allowing a video of the defendant’s mother to be played for the jury.  Despite the defendant’s argument that she and her mother, who lived at the defendant’s house, did not have a “close relationship” and were “more like roommates” and testimony describing the mother as a “very private person [who] liked to keep to herself,” the court found the State’s evidence sufficient to send the question of the defendant’s caretaker status to the jury.  This evidence included that in her mother’s final weeks of life the defendant helped her bathe; purchased food and supplies for her; assisted her in paying her bills; helped with “general normal care, daily things;” and purchased life insurance on her behalf and at her request.

The court went on to determine that the trial court did not commit plain error by admitting a video of a police interview with the defendant’s mother to be played for the jury.  The defendant argued that her mother’s statements in that video, which went to the issue of whether the defendant was her caretaker, were inadmissible hearsay.  The court found that admission of the video, even if error, was not prejudicial because the State’s other evidence was adequate to prove that the defendant was her mother’s caretaker.

Circumstantial evidence indicated that a juvenile wrote “BOMB INCOMING” in a school bathroom. Officers obtained a juvenile petition charging the juvenile with making a false report of mass violence on educational property in violation of G.S. 14-277.5. The petition alleged in pertinent part that the juvenile did “make a report by writing a note on the boy’s bathroom wall . . . stating ‘bomb incoming’.” The court of appeals held the petition to the same standard as a criminal indictment and found it to be defective for failing to allege that the juvenile made “a report.” The petition literally asserted that the juvenile made a report, but the court found that the described conduct clearly failed to constitute a report within the meaning of the statute. The message was not directed at anyone in particular, and a person who saw it would not likely view it as a warning of an imminent event.

State v. Hill, 227 N.C. App. 371 (May. 21, 2013)

In a communicating threats case, the State presented sufficient evidence that a detention officer believed that the defendant—an inmate—would carry out his threats against 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.

State v. Byrd, 363 N.C. 214 (May. 1, 2009)

Reversing the court of appeals and holding that a temporary restraining order (TRO) entered pursuant to Rule 65(b) of the N.C. Rules of Civil Procedure on a motion alleging acts of domestic violence in an action for divorce from bed and board was not a valid domestic violence protective order as defined by Chapter 50B and was not entered after a hearing by the court or with consent of the parties. Thus, the TRO could not support imposition of the punishment enhancement prescribed by G.S. 50B-4.1(d).

The plaintiff and defendant were in a same-sex dating relationship, and when it ended M.E. sought a domestic violence protective order against T.J. The plaintiff alleged that the defendant had engaged in harassment and threatening conduct, and had access to firearms. At a hearing on the requested order, the trial court concluded that it could not enter a 50B protective order because the “allegations are significant but parties are in same sex relationship and have never lived together, therefore do not have relationship required” under the statute. The parties’ relationship fell outside the scope of the statute because “pursuant to the definitions in N.C.G.S. § 50B-1, violence against a person with whom the perpetrator either is, or has been, in a ‘dating relationship’ is not ‘domestic violence,’ no matter how severe the abuse, unless the perpetrator of the violence and the victim of the violence ‘[a]re persons of the opposite sex[.]’ N.C.G.S. § 50B-1(b)(6).” The trial court entered a civil no-contact order pursuant to Chapter 50C instead, and the plaintiff appealed.

The Attorney General’s office and several non-profit groups filed amicus curiae briefs in support of the petitioner, and neither the defendant nor any other parties filed a brief on defendant’s behalf, so the appellate court appointed an amicus curiae to file a brief in response to the plaintiff’s argument. Noting that the trial court would have held that the allegations supported the entry of a 50B order if not for the fact that petitioner and defendant were the same sex, the plaintiff argued that “the trial court’s denial of her request for a DVPO violated constitutional rights protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment, as well as the associated provisions of the North Carolina Constitution.” The plaintiff made an as-applied constitutional challenge, but the appellate court observed that its ruling would apply to any other similarly situated applicants. Noting the “ambiguity surrounding the appropriate test to apply in LGBTQ+ based Fourteenth Amendment cases” in the wake of recent cases including Obergefell v. Hodges, 576 U.S. 644 (2015), the Court of Appeals reviewed plaintiff’s claim under several alternative levels of review, but ultimately held that “no matter the review applied, N.C.G.S. § 50B-1(b)(6) does not survive Plaintiff’s due process and equal protection challenges under either the North Carolina Constitution or the Constitution of the United States.” 

First, the appellate court applied the traditional scrutiny framework (rational basis, intermediate scrutiny, or strict scrutiny) to evaluate the plaintiff’s due process and equal protection claims under the state constitution and the Fourteenth Amendment. Pursuant to Obergefell and other precedent, “any member of the LGBTQ+ community has the same rights and freedoms to make personal decisions about dating, intimacy, and marriage as any non-LGBTQ+ individual.” A statute impinging on those liberties on the basis of sex or gender must pass a higher level of scrutiny (“at least” intermediate). Since excluding the plaintiff from the protections of the statute served no legitimate government interest, and was in fact contrary to the broader statutory purpose of protecting all victims of domestic violence, “N.C.G.S. § 50B-1(b)(6) is unconstitutional as-applied to Plaintiff and those similarly situated” under the state constitution, and “cannot survive even the lowest level of scrutiny.” Turning to the Fourteenth Amendment, the court likewise held that the statute did not pass constitutional muster. Plaintiff’s rights and interests were “were identical in every way to those of any other woman in an ‘opposite sex’ relationship” yet she and others similarly situated “are intentionally denied, by the State, the same protections against the domestic violence that may occur after a ‘break-up’” based solely upon sex or membership in a particular class. The court held that the opposite-sex requirement in G.S. 50B-1(b)(6) failed the higher scrutiny test because it was an arbitrary distinction that bore no reasonable or just relation to the classification of protected individuals. The court again noted that the statute would not pass even the lower level of rational basis scrutiny, since there was no cognizable government interest that such a restriction would serve.

Next, reviewing U.S. Supreme Court precedent that culminated in Obergefell, the appellate court found that the cases have “labored to determine the correct standards to apply in the face of government action that had a discriminatory effect on members of the LGBTQ+ community,” resulting in an alternative approach described as a “full Fourteenth Amendment review” that “does not readily fit within the ‘rational basis,’ ‘intermediate scrutiny,’ or ‘strict scrutiny’ triad.” This hybrid approach involves three considerations: (1) the government’s clear intent in passing the law; (2) the impact of majority opposition becoming law and policy, and the consequence it has on those whose liberty is denied; and (3) the particular harms inflicted on same-sex individuals, couples, or families. More specifically, courts must view laws that deny rights to LGBTQ+ individuals as initially suspect, and consider factors such as the state’s actual intent in passing the law, the particular harms suffered by affected individuals, the long history of disapproval of LGBTQ+ relationships, and the injury caused by state action which singles out and stigmatizes those individuals. Those factors are then weighed against any legitimate interest advanced by the law, considering the particular facts and context. Applying those factors and relevant precedent to the present case, the court held that “N.C.G.S. § 50B-1(b)(6) does not survive this balancing test” given the plain language of the statute denying protections to similarly situated people based on sex or gender.

The majority opinion closed by addressing issues related to its appointment of amicus curiae to brief a response to the plaintiff’s appeal. Due to public interest and the potential impact of the decision, as well as the fact that no brief was filed by or on behalf of the defendant, the court appointed an amicus curiae to “defend the ruling of the trial court” and provide the court with the benefit of an opposing view on the constitutionality of the statute. However, the court clarified that an appointed amicus curiae has a limited role under the appellate rules, and does not have the same standing as the original party. As a result, the additional arguments raised by the amicus on behalf of the defendant challenging the court’s jurisdiction and seeking to amend the record on appeal were dismissed as a nullity.

The trial court’s order denying the plaintiff a 50B protective order was reversed and remanded for entry of an appropriate order. The trial court was instructed to apply G.S. 50B-1(b)(6) as stating: “Are persons who are in a dating relationship or have been in a dating relationship.” The court’s ruling applies to any other similarly situated person who seeks a 50B protective order, and the same-sex or opposite-sex nature of the relationship shall not be a factor in the decision to grant or deny the order.

Judge Tyson dissented, and would have held that the appellate court lacked jurisdiction to decide the matter based on the plaintiff’s dismissal of the original 50B complaint, as well as her failure to argue and preserve the constitutional issues, join necessary parties, and comply with other procedural and appellate rules.

The evidence was sufficient to support the defendant’s conviction of unlawfully entering property operated as a domestic violence safe house by one subject to a protective order in violation of G.S. 50B-4.1(g1). The evidence showed that the defendant drove his vehicle to shelter, parked his car in the lot and walked to the front door of the building. He attempted to open the door by pulling on the door handle, only to discover that it was locked. The court rejected the defendant’s argument that the State was required to prove that he actually entered the shelter building. The statute in question uses the term “property,” an undefined statutory term. However by its plain meaning, this term is not limited to buildings or other structures but also encompasses the land itself.

The trial court erred by entering judgment and sentencing the defendant on both three counts of habitual violation of a DVPO and one count of interfering with a witness based on the same conduct (sending three letters to the victim asking her not to show up for his court date). The DVPO statute states that “[u]nless covered under some other provision of law providing greater punishment,” punishment for the offense at issue was a Class H felony. Here, the conduct was covered under a provision of law providing greater punishment, interfering with a witness, which is a Class G felony.

 

The trial court erred by dismissing an indictment charging the defendant with violating an ex parte domestic violence protective order (DVPO) that required him to surrender his firearms. The trial court entered an ex parte Chapter 50B DVPO prohibiting the defendant from contacting his wife and ordering him to surrender all firearms to the sheriff. The day after the sheriff served the defendant with the DVPO, officers returned to the defendant’s home and discovered a shotgun. He was arrested for violating the DVPO. The trial court granted the defendant’s motion to dismiss, finding that under State v. Byrd, 363 N.C. 214 (2009), the DVPO was not a protective order entered within the meaning of G.S. 14-269.8 and that the prosecution would violate the defendant’s constitutional right to due process. The State appealed. The court concluded that Byrd was not controlling because of subsequent statutory amendments and that the prosecution did not violate the defendant’s procedural due process rights.

(1) The trial court committed plain error by instructing the jury on the crime of stalking under the new stalking statute, G.S. 14-277.3A, when the charged course of conduct occurred both before and after enactment of the new statute. The new version of the stalking statute lessened the burden on the State. The court noted that where, as here, a defendant is indicted for a continuing conduct offense that began prior to a statutory modification that disadvantages the defendant and the indictment tracks the new statute’s disadvantageous language, the question of whether the violation extended beyond the effective date of the statute is one that must be resolved by the jury through a special verdict. Here, the trial court’s failure to give such a special verdict was plain error. (2) The evidence was insufficient to establish that the defendant knowingly violated a DVPO. The DVPO required the defendant to “stay away from” victim Smith’s place of work, without identifying her workplace. The victim worked at various salons, including one at North Hills. The defendant was charged with violating the DVPO when he was seen in the North Hills Mall parking lot on a day that the victim was working at the North Hills salon. The court concluded that it need not determine the precise contours of what it means to “stay away” because it is clear that there was insufficient evidence that the defendant failed to “stay away” from the victim’s place of work, and no evidence that defendant knowingly did so. It reasoned:

The indictment alleges defendant was “outside” Ms. Smith’s workplace, and although technically the area “outside” of Ms. Smith’s workplace could include any place in the world outside the walls of the salon, obviously such an interpretation is absurd. Certainly the order must mean that defendant could not be so close to Ms. Smith’s workplace that he would be able to observe her, speak to her, or intimidate her in any way, but we cannot define the exact parameters of the term “stay away.” It is clear only that defendant was not seen in an area that could reasonably be described as “outside” of Ms. Smith’s salon, nor was there evidence that he was in a location that would permit him to harass, communicate with, follow, or even observe Ms. Smith at her salon, which might reasonably constitute a failure to “stay away” from her place of work. There was also no evidence that he was in proximity to Ms. Smith’s vehicle or that he was in a location which might be along the path she would take from the salon to her vehicle.

Additionally, there was no evidence that defendant was aware that Ms. Smith worked at the North Hills salon, or that he otherwise knew that he was supposed to stay away from North Hills. The order did not identify North Hills as one of the locations that defendant was supposed to stay away from. The order specified no distance that defendant was supposed to keep between himself and Ms. Smith or her workplace. Defendant was seen walking in the parking structure of a public mall at some unknown distance from the salon where Ms. Smith was working on the night in question.

The trial judge erred by entering a domestic violence protective order. The defendant’s act of hiring a private investigator service to conduct surveillance to determine if the plaintiff was cohabiting does not constitute harassment. There thus was no act of domestic violence.

A consent DVPO that lacked any finding that the defendant committed an act of domestic violence it was void ab initio. The court reasoned: “Without a finding by the trial court that an act of domestic violence had occurred, the trial court had no authority under Chapter 50B to enter an order for the purpose of ceasing domestic violence.”

Concluding that application of the stalking statute to the defendant violated his constitutional free speech rights, the court vacated the convictions. The defendant was convicted of four counts of felony stalking based primarily on the content of posts made to his Google Plus account. On appeal, the defendant asserted an as-applied challenge to the stalking statute, G.S. 14-277.3A. The court first rejected the State’s argument that the defendant’s Google Plus posts are excluded from First Amendment protection because they constitute “speech that is integral to criminal conduct.” The court reasoned that in light of the statutory language “his speech itself was the crime,” and no additional conduct on his part was needed to support his stalking convictions. Thus, the First Amendment is directly implicated by his prosecution under the statute.

            The court next analyzed the defendant’s free speech argument within the framework adopted by the United States Supreme Court. It began by determining that as applied to the defendant, the statue constituted a content-based restriction on speech, and thus that strict scrutiny applies. It went on to hold that application of the statute to the messages contained in the defendant’s social media posts did not satisfy strict scrutiny.

            Having determined that the defendant’s posts could not constitutionally form the basis for his convictions, the court separately examined the conduct giving rise to each of the convictions to determine the extent to which each was impermissibly premised on his social media activity. The court vacated his first conviction because it was premised entirely upon five social media posts; no other acts supported this charge. The second and third charges were premised on multiple social media posts and a gift delivery to the victim’s workplace. The gift delivery, unlike the social media posts, constituted non-expressive conduct other than speech and therefore was not protected under the First Amendment. However, because the statute requires a course of conduct, this single act is insufficient to support a stalking conviction and thus these convictions also must be vacated. The defendant’s fourth conviction encompassed several social media posts along with two emails sent by the defendant to the victim’s friend. Even if the emails are not entitled to First Amendment protection, this conviction also must be vacated. Here, the jury returned general verdicts, without stating the specific acts forming the basis for each conviction. Because this conviction may have rested on an unconstitutional ground, it must be vacated.

The trial court committed plain error by instructing the jury on the crime of stalking under the new stalking statute, G.S. 14-277.3A, when the charged course of conduct occurred both before and after enactment of the new statute. The new version of the stalking statute lessened the burden on the State. The court noted that where, as here, a defendant is indicted for a continuing conduct offense that began prior to a statutory modification that disadvantages the defendant and the indictment tracks the new statute’s disadvantageous language, the question of whether the violation extended beyond the effective date of the statute is one that must be resolved by the jury through a special verdict. Here, the trial court’s failure to give such a special verdict was plain error.

(COA10-1485). The defendant’s right to be protected from double jeopardy was violated when, after being convicted of felony stalking, he was again charged and convicted of that crime. Because the time periods of the “course of conduct” for both indictments overlapped, the same acts could result in a conviction under either indictment. Also, in the second trial the State introduced evidence that would have established stalking during the overlapping time period.

In a prosecution under the prior version of the stalking statute, there was sufficient evidence to sustain a conviction. The court rejected the defendant’s argument that the evidence showed communications to persons other than the alleged victim on all but one occasion, concluding that all of the communications were directed to the victim. The defendant harassed the victim by written communications, pager, and phone with no legitimate purpose. The communications were directed to the victim, including those to his office staff, made with the request that they be conveyed to the victim. The harassment placed the victim in fear as evidenced by his testimony, his actions in having his staff make sure the office doors were locked and ensuring the outside lights were working along with encouraging them to walk in “twos” to their cars, his wife’s testimony of his demeanor during and after his phone call with the defendant, his late night phone call to a police officer, his action in taking out a restraining order, and his visit to his children’s school to speak with teachers and counselors and to have them removed from the school’s website. The victim’s fears were reasonable given the defendant’s odd behavior exhibiting a pattern of escalation.

The evidence was sufficient to sustain a stalking conviction where it showed that the defendant sent five facsimile messages to the victim’s workplace but the first four did not contain a direct threat. In this regard, the court noted, the case “diverges from those instances in which our courts historically have applied the stalking statute.” Among other things, the faxes called the victim, Danny Keel, “Mr. Keel-a-Nigger,” referenced the defendant having purchased a shotgun, and mentioned his daughter, who was living away from home, by first name.

The evidence was sufficient to establish that the defendant violated G.S. 14-196(a)(3) by making harassing phone calls. The defendant repeatedly called the victim at work to annoy and harass him. It was not necessary for the State to show that defendant actually spoke with the victim.

State v. Bishop, 368 N.C. 869 (June 10, 2016)

Reversing the Court of Appeals, the court held that the cyberbullying statute, G.S. 14-458.1, was unconstitutional under the First Amendment. It concluded that the statute “restricts speech, not merely nonexpressive conduct; that this restriction is content based, not content neutral; and that the cyberbullying statute is not narrowly tailored to the State’s asserted interest in protecting children from the harms of online bullying.”

The victim in this case was the elected district attorney for the county, and the defendant was an acquaintance who worked in an office building next to the courthouse. After learning that the district attorney would not be pursuing criminal charges in a matter involving the death of a child, the defendant made a series of posts on Facebook. Some of the posts broadly addressed the defendant’s general anger and frustration with politics and the judicial system as a whole, while other posts more specifically referenced the district attorney in particular, using phrases such as “death to her as well” or calling for “old time mtn [mountain] justice,” and implied his willingness to use firearms against law enforcement if they came to his house in response to the posts. The defendant deleted the posts later the same evening, but a detective who was a Facebook friend of the defendant took screenshots of the posts before they were removed. After bringing in the SBI to investigate and interviewing the defendant about the posts, the defendant was charged with threatening a court officer under G.S. 14-16.7(a). Following a jury trial, the defendant was convicted and appealed.

At trial, the defendant raised a First Amendment challenge, arguing that anti-threat statutes such as G.S. 14-16.7 must be construed as constitutionally requiring proof of a “true threat,” meaning that the communication shows a serious intent to cause harm to the victim, and further arguing that the trial court should not admit the five posts offered by the state while excluding other posts and comments that would have provided relevant context and explanation. On appeal, the defense argued that the trial court erred by: (i) denying the defendant’s motion to dismiss at the close of evidence based on the state’s failure to prove the alleged threats were true threats; and (ii) failing to properly instruct the jury on the law and requirements of a true threat.

Ruling as a matter of first impression, the Court of Appeals found in favor of the defendant and reversed the conviction. The appellate court’s decision contains an exhaustive review of case law from North Carolina and other jurisdictions on the First Amendment’s application to anti-threat statutes and other forms of protected speech, but it relies most extensively on Watts v. United States, 394 U.S. 705 (1969), Virginia v. Black, 538 U.S. 343 (2003), and their progeny. Based on those cases, the appellate court agreed that laws which criminalize speech must be construed in accordance with the First Amendment; here, that means a threat cognizable under the statute must be a “true threat” as defined by Black: “under the First Amendment the State can punish threatening expression, but only if the ‘speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.’” To clarify its holding and provide guidance in future cases, the court made six supplemental holdings that were not yet fully addressed by the North Carolina case law.

First, when reviewing a conviction under an anti-threat statute, the appellate court will engage in a “whole record” review. Whenever a defendant’s conviction is based in part on a determination that the state met its burden of proving a true threat, the appellate court will conduct an independent review of the entire record to determine the sufficiency of the evidence and whether the defendant’s First Amendment rights were preserved.

Second, establishing that an alleged threat was a “true threat” must be treated as an essential element of the offense to be proved by the state. At trial in this case, the state relied heavily on the fact that the underlying statute and pattern jury instructions only used the single word “threat,” without further qualification. The appellate court’s holding on this point acknowledged that fact, but explained that in order to comport with the First Amendment, “‘true threat’ must be incorporated into the definition of N.C.G.S. § 14-16.7(a) if the statute is to be held constitutional” (emphasis in original).

Third, the “intent” to communicate a true threat is also deemed an essential element of the offense. A statement is only a true threat if it was made intentionally, meaning that it was made with both the general intent to make the threatening statement (considered “from the viewpoint of an objective, reasonable person considering the alleged threat in full context”) and specific intent (i.e., a subjective intent to truly threaten). This does not require proof that the defendant actually intended to carry out the threatened act, but he must have intended that it would be received as a true threat by him to do so.

Fourth, deciding on appeal whether a statement was a true threat is a mixed question of fact and law. Therefore, proving a true threat will usually be a matter for the jury (or judge acting as trier of fact) to decide initially, but as noted above the appellate courts will conduct a “de novo whole record review” on appeal, even if the jury was properly instructed on the law and there is some evidence in the record to support its finding.

Fifth, noting that many types of protected speech may be unpopular, crude, or even aggressive, a “true threat” is defined in accordance with Black as only those statements where “the speaker intends to communicate, to a particular individual or group of individuals, a threat, being ‘a serious expression of an intent to commit an act of unlawful violence[.]’” This definition incorporates the intent requirements adopted above, meaning that the defendant had the “subjective intent to threaten a person or group of persons by communicating the alleged threat.” But deciding whether a statement was a true threat must also be evaluated objectively, based on the “context in which the communication was made; i.e., all the facts surrounding the communication of the challenged speech.” In other words, finding a statement to be a true threat requires both a subjective and an objective determination: (i) the defendant subjectively intended the statement to be understood as a true threat; and (ii) the people hearing or reading it would objectively understand it, in context, as a serious expression of intent to kill or injure the person or group identified.

Sixth, applying the preceding analyses to the particular statute at issue, the court identified and summarized the seven essential elements of the offense as follows:

In order to obtain a constitutional conviction for threatening a court officer pursuant to N.C.G.S. § 14-16.7(a), the State must prove, beyond a reasonable doubt, that: (1) the defendant; (2) knowingly and willfully; (3) made a threat; (4) constituting a “true threat,” meaning a statement “that an ordinary, reasonable [person] who is familiar with the context in which the statement [wa]s made would interpret as a serious expression of an intent to do harm”; (5) to a court official; (6) knowing the court official was a court official; and (7) when the defendant communicated the statement, the defendant specifically intended the statement to be understood by the court officer as a real threat expressing the defendant’s intention to carry out the actions threatened.

Additionally, since proving a true threat is an essential element of the offense, failure to properly instruct the jury on these issues violates the defendant’s First, Sixth, and Fourteenth Amendment rights. That error is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt.

Finally, turning back to the case at hand, the court conducted an independent whole case review to decide whether the statements made by this defendant were true threats, whether the defendant had the subjective intent that they reach the recipient and cause her to believe that he intended to kill her, and whether they would be understood as threats by an objectively reasonable person.

Looking first at the plain language of the posts, although some of them did contain aggressive statements such as “death to her as well” and “she will be first to go,” the court concluded that they were also vague or contingent on the occurrence of unlikely events (such as a revolution), and “there were no specifics such as time, manner, place, ability, preparation, or other facts that might allow a reasonable person to read Defendant’s words as a ‘true threat’ to kill D.A. Welch.” As a result, none of the posts offered by the state rose to the level of constituting a true threat.

The court then evaluated the statements in context, considering other factors such as the defendant’s reference (and apparent access) to firearms, his close proximity and ability to reach the purported victim, and the initial concern of the detective who saw the posts indicating that she viewed the threat as real. However, other evidence indicated that neither the victim nor law enforcement perceived the statements as true threats, such as the detective’s somewhat delayed response to the posts, the purported victim’s belief that additional security was unnecessary, the fact that officers did not further investigate the defendant’s ability to carry out the alleged threats, a history of “polite and non-threatening” interactions between the parties, and the broad nature of other comments directed at the judicial system as a whole.

As part of its whole case review, the appellate court also considered the hyperbolic nature of many posts on “public forums” like Facebook, the political context of the defendant’s related comments about the judicial system, the lack of specificity to any alleged threats, the reactions of others who saw the posts, and the defendant’s explanation for the posts. In sum, the court found that as a matter of law the defendant’s posts did not rise to the level of being a “true threat” in this case, and the evidence did not support a finding that the defendant’s intent in posting the comments was to make the purported victim believe he actually intended to kill her. Consistent with the holdings above, the appellate court found that the trial court erred by failing to instruct the jury on the constitutionally required elements of a “true threat” and state’s burden to prove the defendant’s intent, and further found that the error was not harmless beyond a reasonable doubt in this case, given the erroneous law and arguments presented to the jury.

Based on its whole record review (or, in the alternative, based on the regular standard of appellate review as well as the trial court’s failure to properly instruct the jury), the defendant’s conviction was reversed and the case was remanded for entry of judgment of acquittal. The court then reiterated and summarized the essential elements of the offense, the state’s burden of proof, and the jury instructions required for a constitutionally valid conviction under the statute.

State v. Faulk, 200 N.C. App. 118 (Sept. 15, 2009)

In a case charging offenses under G.S. 14-27.7A (statutory rape or sexual offense of person who is 13, 14, or 15 years old), the court held that the trial judge misapplied the “birthday rule” (a person reaches a certain age on his or her birthday and remains that age until his or her next birthday) to the calculation of the age difference between the defendant and the victim. The defendant’s and victim’s ages at the time in question were 19 years, 7 months, and 5 days and 15 years, 2 months, and 8 days respectively. Applying the birthday rule, the trial court concluded that the defendant was 19 at the time in question and that the victim was 15, making the age difference 4 years, when the relevant statute required it to be more than 4 years. The appellate court concluded that the statutory element of more than 4 years but less than 6 years means 4 years 0 days to 6 years 0 days, “or anywhere in the range of 1460 days to 2190 days.”

State v. Hunt, 365 N.C. 432 (Mar. 9, 2012)

(1) Reversing a decision of the court of appeals in State v. Hunt, 211 N.C. App. 452 (May 3, 2011), the court held that expert testimony was not required for the State to establish that the victim had a mental disability for purposes of second-degree sexual offense. In the opinion below, the court of appeals reversed the defendant’s conviction on grounds that there was insufficient evidence as to the victim’s mental disability, reasoning: “where the victim’s IQ falls within the range considered to be ‘mental retardation[,]’ but who is highly functional in her daily activities and communication, the State must present expert testimony as to the extent of the victim’s mental disability as defined by [G.S.] 14-27.5.” The supreme court, however, found the evidence sufficient. First, it noted, there was evidence that the victim was mentally disabled. The victim had an IQ of 61, was enrolled in special education classes, a teacher assessed her to be in the middle level of intellectually disabled students, and she required assistance to function in society. Second, the victim’s condition rendered her substantially incapable of resisting defendant’s advances. The victim didn’t know the real reason why the defendant asked her to come into another room, his initial acts of touching scared her because she didn’t know what he was going to do, she was shocked when he exposed himself, she was frightened when he forced her to perform fellatio and when she raised her head to stop, he forced it back down to his penis. Finally, there was evidence that the defendant knew or reasonably should have known about the victim’s disability. Specifically, his wife testified that she had discussed the victim’s condition with the defendant. The court emphasized that “expert testimony is not necessarily required to establish the extent of a victim’s mental capacity to consent to sexual acts when a defendant is charged with second-degree sexual offense pursuant to section 14-27.5.” (2) Reversing the court of appeals, the court held that the State presented sufficient evidence of crime against nature. The defendant conceded knowing that the victim was 17 years old. For the reasons discussed above, the court concluded that there was sufficient evidence that the victim’s conditions rendered her substantially incapable of resisting the defendant’s advances. All of this evidence indicates that the sexual acts were not consensual. In addition, the court noted, the record suggests that the acts were coercive, specifically pointing to the defendant’s conduct of forcing the victim’s head to his penis. The court emphasized that “expert testimony is not necessarily required to establish the extent of a victim’s mental capacity to consent to sexual acts when a defendant is charged with . . . crime against nature.”

State v. Gentle, ___ 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)

The court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss a crime against nature charge. The defendant asserted that the State failed to offer substantial evidence that the offense was committed in a public place. The court noted that although Lawrence v. Texas limited the circumstances in which a defendant can be prosecuted for crime against nature, the State may prosecute conduct in which a minor is involved, involving nonconsensual or coercive sexual acts, occurring in a public place, or involving prostitution or solicitation. Here, the trial court instructed the jury on the public place theory. The defendant argued that the State failed to prove that the offense occurred in a public place because it occurred well outside of public view in a dark and wooded area. There is no requirement that the prohibited conduct occur in public view. Also, the victim’s description of the dark, wooded area does not foreclose its status as a public place. She consistently testified that the offense occurred at the bottom of the stairs in a parking lot and other evidence supported that testimony. Thus there was sufficient evidence that the defendant unlawfully engaged in sexual acts in a public place.

In re J.F., 237 N.C. App. 218 (Nov. 18, 2014)

(1) In a delinquency case where the petitions alleged sexual offense and crime against nature in that the victim performed fellatio on the juvenile, the court rejected the juvenile’s argument that the petitions failed to allege a crime because the victim “was the actor.” Sexual offense and crime against nature do not require that the accused perform a sexual act on the victim, but rather that the accused engage in a sexual act with the victim. (2) The court rejected the juvenile’s argument that to prove first-degree statutory sexual offense and crime against nature the prosecution had to show that the defendant acted with a sexual purpose. (3) Penetration is a required element of crime against nature and in this case insufficient evidence was presented on that issue. The victim testified that he licked but did not suck the juvenile’s penis. Distinguishing In re Heil, 145 N.C. App. 24 (2001) (concluding that based on the size difference between the juvenile and the victim and “the fact that the incident occurred in the presumably close quarters of a closet, it was reasonable for the trial court to find . . . that there was some penetration, albeit slight, of juvenile’s penis into [the four-year-old victim’s] mouth”), the court declined the State’s invitation to infer penetration based on the surrounding circumstances.

State v. Hunt, 21 N.C. App. 489 (July 17, 2012) aff’d per curiam, 367 N.C. 700 (Dec 19 2014)

The defendant could not be convicted of second-degree sexual offense (mentally disabled victim) and crime against nature (where lack of consent was based on the fact that the victim was mentally disabled, incapacitated or physically helpless) based on the same conduct (fellatio). The court found that “on the particular facts of Defendant’s case, crime against nature was a lesser included offense of second-degree sexual offense, and entry of judgment on both convictions subjected Defendant to unconstitutional double jeopardy.” [Author’s note: The N.C. Supreme Court has previously held that crime against nature is not a lesser-included offense of forcible rape or sexual offense, State v. Etheridge, 319 N.C. 34, 50–51 (1987); State v. Warren, 309 N.C. 224 (1983), and that a definitional test applies when determining whether offenses are lesser-included offenses, State v. Nickerson, 316 N.C. 279 (2011).].

In Re R.N., 206 N.C. App. 537 (Aug. 17, 2010)

The trial court erred by denying the juvenile’s motion to dismiss a charge of crime against nature; as to a second charge alleging the same offense, defects in the transcript made appellate review impossible. The first count alleged that the juvenile licked the victim’s genital area. The evidence established that the juvenile licked her private, put his mouth on her private area, and "touch[ed] . . . on her private parts." Citing, State v. Whittemore, 255 N.C. 583 (1961), the court held that the evidence was insufficient to establish penetration. As to the second count, alleging that the juvenile put his penis in the victim’s mouth, the evidence showed that the juvenile forced the victim’s head down to his private and that she saw his private area. Under Whittemore, this was insufficient evidence of penetration. However, when a social worker was asked whether there was penetration, she responded: “[the victim] told me there was (Indistinct Muttering) penetration.” The court concluded that because it could not determine from this testimony whether penetration occurred, it could not meaningfully review the sufficiency of the evidence. The court vacated the adjudication and remanded for a hearing to reconstruct the social worker’s testimony.

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

The trial judge did not commit plain error in the jury instruction on indecent liberties. When instructing on indecent liberties, the trial judge is not required to specifically identify the acts that constitute the charge.

The defendant, a 69 year-old male, wrote a letter to an 11 year-old girl and asked her grandmother to deliver the letter. The grandmother read the letter, in which the defendant asked the girl to have sex with him to make him “feel young again,” and called the police. The defendant was charged and convicted of engaging in indecent liberties with a minor under G.S. 14-202.1(a)(1). A person is guilty of this offense if he “[w]illfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire[.]”

On appeal, the defendant argued that it was error to deny his motion to dismiss at trial because there was insufficient evidence to show that he was ever “with” the minor as contemplated by the statute, or that he took any steps beyond mere preparation sufficient to constitute an “attempt” under the statute. The Court of Appeals rejected both arguments, citing to similar facts and holdings in State v. McClary, 198 N.C. App. 169 (2009). The statute does not require actual physical touching to constitute a taking or attempted taking of indecent liberties, and the delivery of the letter in this case was sufficient evidence of an attempt. Additionally, the letter itself provided adequate circumstantial evidence of the defendant’s unlawful purpose.

The evidence was sufficient to support a conviction of attempting to take indecent liberties with a child. The defendant posted a Craigslist advertisement seeking female companionship. An adult police officer posing as a 14-year-old girl named Brittany responded to the ad. The two exchanged over 100 messages over a period of 15 days, during which the defendant sent her numerous sexually explicit messages and formulated a plan for them to meet for sex. When the defendant arrived at the location, he was met by police and arrested. In his car officers found two Viagra pills and a tube of KY jelly. At trial the defendant asserted that he did not believe Britney to be an actual minor, but rather an adult female he was role-playing with to help live out her sexual fantasy of pretending to be an underage female in pursuit of an older man. The State’s evidence however indicated that when an officer first interviewed the defendant, he admitted that he believed Britney to be only 14 years old. Additionally in a videotaped custodial interview, the defendant expressed remorse for his action and admitted that he believed Britney to be 14 years old. The defendant was found guilty and appealed. On appeal the defendant argued that the trial court erred by denying his pretrial motion to quash the indecent liberties indictment and his later trial motion to dismiss that charge where the evidence showed that Britney was not an actual child. The court disagreed, finding that the statute covers attempts and here the evidence was sufficient to establish that the defendant attempted to engage in indecent liberties with a child. Specifically, the State presented substantial evidence that the defendant believed Britney to be a minor, with whom he was communicating and sexually pursuing.

The trial court did not err by denying the defendant’s motion to dismiss 33 counts of statutory rape, two counts of statutory sex offense, and 17 counts of indecent liberties as to victim F.H. At trial, the victim testified to sexual contact during her relationship with the defendant; she stated that she and the defendant had vaginal intercourse at least once a week beginning the day they met, and that she performed oral sex before, during, and after each occurrence of sexual intercourse. Two additional witnesses testified to observing the defendant and the victim have sexual intercourse during this time, one of whom also testified to observing oral sex. The defendant asserted that because the State failed to provide a specific number of times that the two had sexual intercourse and oral sex and how many times the defendant touched the victim in an immoral way, the total number of counts is not supported and his motion to dismiss should have been granted. The court disagreed, concluding that although the victim did not explicitly state the specific number of times that the two had sexual relations, a reasonable jury could find the evidence sufficient to support an inference for the number of counts at issue. Specifically, the victim testified that she and the defendant had sexual intercourse at least once a week for span of seventy-one weeks.

State v. Phachoumphone, ___ N.C. App. ___, 810 S.E.2d 748 (Feb. 6, 2018) review granted, ___ N.C. ___, ___ S.E.2d ___ (Sep 20 2018)

The evidence was sufficient to sustain a conviction for indecent liberties. The defendant challenged only the sufficiency of the evidence with respect to whether he took or attempted to take an indecent liberty with the victim. Having concluded that the State presented substantial evidence that the defendant digitally penetrated the child victim, the court concluded that the same act supports the challenged element of this offense.

The trial court did not err by denying the defendant’s motion to dismiss a charge of taking indecent liberties with a child. The victim testified that the defendant repeatedly raped her while she was a child living in his house and DNA evidence confirmed that he was the father of her child. The defendant argued that there was insufficient evidence of a purpose to arouse or gratify sexual desire; specifically he argued that evidence of vaginal penetration is insufficient by itself to prove that the rape occurred for the purpose of arousing or gratifying sexual desire. The court rejected the argument that the State must always prove something more than vaginal penetration in order to satisfy this element of indecent liberties. The trial court correctly allowed the jury to determine whether the evidence of the defendant’s repeated sexual assaults of the victim were for the purpose of arousing or gratifying sexual desire.

The defendant was properly convicted of two counts of indecent liberties with victim Melissa in Caldwell County. The State presented evidence that the defendant had sex with his girlfriend in the presence of Melissa, performed oral sex on Melissa, and then forced his girlfriend to perform oral sex on Melissa while he watched. The defendant argued that this evidence only supports one count of indecent liberties with a child. The court disagreed, holding that pursuant to State v. James, 182 N.C. App. 698 (2007), multiple sexual acts during a single encounter may form the basis for multiple counts of indecent liberties.

With respect to an indecent liberties charge, the State presented sufficient evidence that the defendant committed the relevant act for the purpose of arousing or gratifying sexual desire. The court noted the defendant’s purpose “may be inferred from the evidence of the defendant’s actions.” Here, the victim stated that the defendant kissed her on the mouth, told her not to tell anyone about what happened, and continued to kiss her even after she asked him to stop. The victim told the police that the defendant made sexual advances while he was drunk, kissed her, fondled her under her clothing, and touched her breasts and vagina. This evidence, along with other instances of the defendant’s alleged sexual misconduct giving rise to first-degree rape charges, is sufficient evidence to infer the defendant’s purpose.

The evidence was sufficient to support five counts of indecent liberties with a minor where the child testified that the defendant touched the child’s buttocks with his penis “four or five times.” The court rejected the defendant’s argument that this testimony did not support convictions on five counts or that the contact occurred during separate incidents. Acknowledging that the child’s testimony showed neither that the alleged acts occurred either on the same evening or on separate occasions, the court noted that “no such requirement for discrete separate occasions is necessary when the alleged acts are more explicit than mere touchings.” The court cited State v. Williams, 201 N.C. App. 161 (2009), for the proposition that unlike “mere touching” “multiple sexual acts, even in a single encounter, may form the basis for multiple indictments for indecent liberties.”

In an indecent liberties case, the evidence was sufficient to establish that the defendant engaged in conduct for the purpose of arousing or gratifying sexual desire. While at a store, the defendant crouched down to look at the victim’s legs, “fell into” the victim, wrapping his hands around her, and kneeled down, 6-8 inches away from her legs. Other evidence showed that he had asked another person if he could hug her legs and that he admitted to being obsessed with women’s legs.

The evidence was sufficient to establish indecent liberties. The child reported being touched in her genital and rectal area by a male. The victim’s mother testified that she found the victim alone with the defendant on several occasions, and the victim’s testimony was corroborated by her consistent statements to others.

In Re A.W., 209 N.C. App. 596 (Feb. 15, 2011)

The court rejected the juvenile’s argument that the evidence was insufficient to establish indecent liberties in that it failed to show that he acted with a purpose to arouse or gratify his sexual desires. The facts showed that: the juvenile was thirteen and the victim was ten years younger; the juvenile told the victim that the juvenile’s private parts “taste like candy,” and had the victim lick his penis; approximately eleven months prior, the juvenile admitted to having performed fellatio on a four-year-old male relative. The court concluded that the juvenile’s age and maturity, the age disparity between him and the victim, coupled with the inducement he employed to convince the victim to perform the act and the suggestion of his prior sexual activity before this event, was sufficient evidence of maturity and intent to show the required element of “for the purpose of arousing or gratifying sexual desire.”

Mistake of age is not a defense to the crime of indecent liberties. The trial court did not err by instructing the jury that the term willfully meant that the act was done purposefully and without justification or excuse. This instruction “largely mirrors” the North Carolina Supreme Court’s definition of willfully, which is “the wrongful doing of an act without justification or excuse, or the commission of an act purposely and deliberately in violation of law.”

The court held that the (1) defendant, who had a custodial relationship with the child, committed an indecent liberty when he watched the child engage in sexual activity with another person and facilitated that activity; and (2) defendant’s two acts−touching the child’s breasts and watching and facilitating her sexual encounter with another person−supported two convictions.

There was sufficient evidence to survive a motion to dismiss where it showed that the defendant gave the child a letter containing sexually graphic language for the purpose of soliciting sexual intercourse and oral sex for money. Additionally, the jury could reasonably infer that the defendant’s acts of writing and delivering the letter to the child were taken for the purpose of arousing and gratifying sexual desire.

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.

In a multi-count indecent liberties with a student case, the court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss because there was insufficient evidence that the victim was a “student.” The trial court instructed the jury that a “student,” for purposes of G.S. 14-202.4(A), means “a person enrolled in kindergarten, or in grade one through 12 in any school.” The court rejected the defendant’s argument that a person is only “enrolled” during the academic year and that since the offenses occurred during the summer, the victim was not a student at the time.

State v. Hunt, 365 N.C. 432 (Mar. 9, 2013)

(1) Reversing a decision of the court of appeals in State v. Hunt, 211 N.C. App. 452 (May 3, 2011), the court held that expert testimony was not required for the State to establish that the victim had a mental disability for purposes of second-degree sexual offense. In the opinion below, the court of appeals reversed the defendant’s conviction on grounds that there was insufficient evidence as to the victim’s mental disability, reasoning: “where the victim’s IQ falls within the range considered to be ‘mental retardation[,]’ but who is highly functional in her daily activities and communication, the State must present expert testimony as to the extent of the victim’s mental disability as defined by [G.S.] 14-27.5.” The supreme court, however, found the evidence sufficient. First, it noted, there was evidence that the victim was mentally disabled. The victim had an IQ of 61, was enrolled in special education classes, a teacher assessed her to be in the middle level of intellectually disabled students, and she required assistance to function in society. Second, the victim’s condition rendered her substantially incapable of resisting defendant’s advances. The victim didn’t know the real reason why the defendant asked her to come into another room, his initial acts of touching scared her because she didn’t know what he was going to do, she was shocked when he exposed himself, she was frightened when he forced her to perform fellatio and when she raised her head to stop, he forced it back down to his penis. Finally, there was evidence that the defendant knew or reasonably should have known about the victim’s disability. Specifically, his wife testified that she had discussed the victim’s condition with the defendant. The court emphasized that “expert testimony is not necessarily required to establish the extent of a victim’s mental capacity to consent to sexual acts when a defendant is charged with second-degree sexual offense pursuant to section 14-27.5.” (2) Reversing the court of appeals, the court held that the State presented sufficient evidence of crime against nature. The defendant conceded knowing that the victim was 17 years old. For the reasons discussed above, the court concluded that there was sufficient evidence that the victim’s conditions rendered her substantially incapable of resisting the defendant’s advances. All of this evidence indicates that the sexual acts were not consensual. In addition, the court noted, the record suggests that the acts were coercive, specifically pointing to the defendant’s conduct of forcing the victim’s head to his penis. The court emphasized that “expert testimony is not necessarily required to establish the extent of a victim’s mental capacity to consent to sexual acts when a defendant is charged with . . . crime against nature.”

In Re A.W., 209 N.C. App. 596 (Feb. 15, 2011)

The evidence was insufficient to sustain an adjudication of delinquency based on a violation of G.S. 14-27.5 (second-degree sexual offense). On appeal, the State conceded that there was no evidence that the victim was mentally disabled, mentally incapacitated, or physically helpless.

In a sexual offense case, there was sufficient evidence that the victim, an adult with 58 I.Q., was mentally disabled and that the defendant knew or should reasonably have known this. (1) Because the parties agreed that the victim was capable of appraising the nature of his conduct and of communicating an unwillingness to submit to a sexual act (he told the defendant he did not want to do the act), the issue on the mentally disabled element was whether the victim was substantially capable of resisting a sexual act. The victim was mildly mentally retarded. He had difficulty expressing himself verbally, was able to read very simple words and solve very simple math problems, and had difficulty answering questions about social abilities and daily tasks. He needed daily assistance with cooking and personal hygiene. Notwithstanding the victim’s communication of his unwillingness to receive oral sex, the defendant completed the sexual act, allowing an inference that the victim was unable to resist. (2) There was sufficient evidence that the defendant knew or should have known that the victim was mentally disabled. An officer testified that within three minutes of talking with the victim, it was obvious that he had some deficits. By contrast, the defendant appeared normal and healthy. While the defendant had a driver’s license, held regular jobs, took care of the victim’s mother, could connect a VCR, and could read “somewhat,” the victim could not drive, never held a regular job, could cook only in a microwave, had to be reminded to brush his teeth, did not know how to connect a VCR, and could not read. Moreover, the defendant had sufficient opportunity to get to know the victim, having dated the victim’s mother for thirteen years and having spent many nights at the mother’s house, where the victim lived.

State v. Baker, 369 N.C. 586 (June 9, 2017)

Reversing the Court of Appeals, the court held that the evidence was sufficient to support the defendant’s conviction for attempted first-degree rape of a child. The Court of Appeals had reversed the defendant’s conviction finding, in part, that the evidence supported only a conviction for completed rape, not an attempted rape. Citing precedent, the Supreme Court held that evidence of a completed rape is sufficient to support an attempted rape conviction. 

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.

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.

State v. Lawrence, 363 N.C. 118 (Mar. 20, 2009)

The court, per curiam and without an opinion, affirmed the ruling of the court of appeals that there was substantial evidence that the defendant displayed an article which the victim reasonably believed to be a dangerous or deadly weapon. The evidence showed that the defendant grabbed the victim, told her that he was going to kill her and reached into his pocket to get something; although the victim did not see if the item was a knife or a gun, she saw something shiny and silver that she believed to be a knife.

In a case where the defendant was convicted of second-degree rape, breaking or entering, and two counts of attempted second-degree sexual offense, the trial court did not err by denying the defendant’s motion to dismiss one count of attempted second-degree sexual offense. The defendant asserted that the evidence did not show an intent to commit the act by force and against the victim’s will. The court disagreed:

[W]here the request for fellatio is immediately preceded by defendant tricking the victim into letting him into her apartment, raping her, pulling her hair, choking her, flipping her upside down, jabbing at her with a screwdriver, refusing to allow her to leave, pulling her out of her car, taking her car keys, dragging her to his apartment, slapping her so hard that her braces cut the inside of her mouth, screaming at her, and immediately after her denial of his request, raping her again, we hold that this request is accompanied by a threat and a show of force and thus amounts to an attempt. Had [the victim] complied with defendant’s request, thus completing the sexual act, we cannot imagine that the jury would have found that she had consented to perform fellatio. Given the violent, threatening context, defendant’s request and presentation of his penis to [the victim] amounted to an attempt to engage [the victim] in a sexual act by force and against her will.

In a second-degree rape and sexual offense case, the evidence sufficiently established use of force. The victim repeatedly declined the defendant’s advances and told him to stop and that she didn’t want to engage in sexual acts. The defendant pushed her to the ground. When he was on top of her she tried to push him away.

The court reversed a unanimous, unpublished decision of the Court of Appeals in this first-degree sexual offense case, holding that the trial court did not err by giving a disjunctive jury instruction. One of the factors that can elevate a second-degree sexual offense to a first-degree sexual offense is that the defendant was aided and abetted by one or more other persons; another is that the defendant used or displayed a dangerous or deadly weapon. Here, the trial court gave a disjunctive instruction, informing the jury that it could convict the defendant of the first-degree offense if it found that he was aided and abetted by another or that he used or displayed a dangerous or deadly weapon. Where, as here, the trial court instructs the jury disjunctively as to alternative acts which establish an element of the offense, the requirement of unanimity is satisfied. However, when a disjunctive instruction is used, the evidence must be sufficient under both theories. In this case it was undisputed that the evidence was sufficient under the dangerous or deadly weapon prong. The defendant contested the sufficiency of the evidence under the aiding and abetting prong. The court found the evidence sufficient, holding that the Court of Appeals erred in concluding that actual or constructive presence is required for aiding and abetting. As the Court stated in State v. Bond, 345 N.C. 1 (1996), actual or constructive presence is no longer required to prove aiding and abetting. Applying that law, the court held that although the defendant’s accomplices left the room before the defendant committed the sexual act, there was sufficient evidence for the jury to conclude that the others aided and abetted him. Among other things, two of the accomplices taped the hands of the residents who were present; three of them worked together to separate the sexual assault victim from the rest of the group; one of the men grabbed her and ordered her into a bedroom when she tried to sit in the bathroom; and in the bedroom the defendant and an accomplice groped and fondled the victim and removed her clothes. Most of these acts were done by the defendant and others. The act of taping her mouth shut, taping her hands behind her back, moving her into the bedroom, removing her clothing and inappropriately touching her equate to encouragement, instigation and aid all of which “readily meet the standards of . . . aiding and abetting.” The court rejected the defendant’s argument that the evidence was insufficient because he was the only person in the room when the sex act occurred.

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.

On remand by the NC Supreme Court for reconsideration in light of State v. Carter, 366 N.C. 496 (2013) (no plain error occurred in a child sexual offense case when the trial court failed to instruct on attempted sexual offense even though the evidence of penetration was conflicting), the court held that no plain error occurred when the trial court failed to instruct the jury on attempted second-degree rape and attempted incest when the evidence of penetration was conflicting. As in Carter, the defendant failed to show that the jury would have disregarded any portions of the victim’s testimony stating that penetration occurred in favor of instances in which she said it did not occur. Thus, the defendant failed to show a “probable impact” on the verdict.

Because evidence of vaginal penetration was clear and positive, the trial court did not err by failing to instruct the jury on attempted rape.

State v. Blow, 368 N.C. 348 (Sept. 25, 2015)

For the reasons stated in the dissenting opinion, the court reversed the opinion below, State v. Blow, 237 N.C. App. 158 (Nov. 4, 2014). In this child sexual assault case in which the defendant was convicted of three counts of first-degree rape, the court of appeals had held that the trial court erred by failing to dismiss one of the rape charges. The court of appeals agreed with the defendant that because the victim testified that the defendant inserted his penis into her vagina “a couple” of times, without identifying more than two acts of penetration, the State failed to present substantial evidence of three counts of rape. The court of appeals found that the defendant’s admission to three instances of “sex” with the victim was not an admission of vaginal intercourse because the defendant openly admitted to performing oral sex and other acts on the victim but denied penetrating her vagina with his penis. The dissenting judge believed that the State presented substantial evidence that was sufficient, if believed, to support the jury’s decision to convict of three counts of first degree rape. The dissenting judge agreed with the majority that the victim’s testimony about penetration “a couple” of times would have been insufficient to convict the defendant of three counts, but noted that the record contains other evidence, including the defendant’s admission that he “had sex” with the victim “about three times.”

State v. Banks, 367 N.C. 652 (Dec. 19, 2014)

Because the defendant was properly convicted and sentenced for both statutory rape and second-degree rape when the convictions were based on a single act of sexual intercourse, counsel was not ineffective by failing to make a double jeopardy objection. The defendant was convicted of statutory rape of a 15-year-old and second-degree rape of a mentally disabled person for engaging in a single act of vaginal intercourse with the victim, who suffers from various mental disorders and is mildly to moderately mentally disabled. At the time, the defendant was 29 years old and the victim was 15. The court concluded that although based on the same act, the two offenses are separate and distinct under the Blockburger “same offense” test because each requires proof of an element that the other does not. Specifically, statutory rape involves an age component and second-degree rape involves the act of intercourse with a victim who suffers from a mental disability or mental incapacity. It continued:

Given the elements of second-degree rape and statutory rape, it is clear that the legislature intended to separately punish the act of intercourse with a victim who, because of her age, is unable to consent to the act, and the act of intercourse with a victim who, because of a mental disability or mental incapacity, is unable to consent to the act. . . .

Because it is the General Assembly’s intent for defendants to be separately punished for a violation of the second-degree rape and statutory rape statutes arising from a single act of sexual intercourse when the elements of each offense are satisfied, defendant’s argument that he was prejudiced by counsel’s failure to raise the argument of double jeopardy would fail. We therefore conclude that defendant was not prejudiced.

The trial court did not err by denying the defendant’s motion to dismiss 33 counts of statutory rape, two counts of statutory sex offense, and 17 counts of indecent liberties as to victim F.H. At trial, the victim testified to sexual contact during her relationship with the defendant; she stated that she and the defendant had vaginal intercourse at least once a week beginning the day they met, and that she performed oral sex before, during, and after each occurrence of sexual intercourse. Two additional witnesses testified to observing the defendant and the victim have sexual intercourse during this time, one of whom also testified to observing oral sex. The defendant asserted that because the State failed to provide a specific number of times that the two had sexual intercourse and oral sex and how many times the defendant touched the victim in an immoral way, the total number of counts is not supported and his motion to dismiss should have been granted. The court disagreed, concluding that although the victim did not explicitly state the specific number of times that the two had sexual relations, a reasonable jury could find the evidence sufficient to support an inference for the number of counts at issue. Specifically, the victim testified that she and the defendant had sexual intercourse at least once a week for span of seventy-one weeks.

The trial court did not err by sentencing the defendant for two crimes—statutory rape and incest—arising out of the same transaction. The two offenses are not the same under the Blockburger test; each has an element not included in the other.

(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of rape of a child by an adult under G.S. 14-27.2A(a). The defendant had argued that there was insufficient evidence to establish that the offense occurred on or after December 1, 2008, the statute’s effective date. (2) The trial court did not err in sentencing the defendant to 300-369 months imprisonment on this charge. The court rejected the defendant’s argument that the trial court had discretion to sentence the defendant to less than 300 months.

State v. Huss, 367 N.C. 162 (Nov. 8, 2013)

The court per curiam, with an equally divided court, affirmed the decision below, State v. Huss, 223 N.C. App. 480 (2012). That decision thus is left undisturbed but without precedential value. In this case, involving charges of second-degree sexual offense and second-degree rape, the court of appeals had held that the trial court erred by denying the defendant’s motion to dismiss. The State proceeded on a theory that the victim was physically helpless. The facts showed that the defendant, a martial arts instructor, bound the victim’s hands behind her back and engaged in sexual activity with her. The statute defines the term physically helpless to mean a victim who either is unconscious or is physically unable to resist the sexual act. Here, the victim was not unconscious. Thus, the only issue was whether she was unable to resist the sexual act. The court of appeals began by rejecting the defendant’s argument that this category applies only to victims who suffer from some permanent physical disability or condition, instead concluding that factors other than physical disability could render a victim unable to resist the sexual act. However, it found that no such evidence existed in this case. The State had argued that the fact that the defendant was a skilled fighter and outweighed the victim supported the conclusion that the victim was physically helpless. The court of appeals rejected this argument, concluding that the relevant analysis focuses on “attributes unique and personal of the victim.” Similarly, the court of appeals rejected the State’s argument that the fact that the defendant pinned the victim in a submissive hold and tied her hands behind her back supported the conviction. It noted, however, that the evidence would have been sufficient under a theory of force. The defendant also was convicted of kidnapping the victim for the purpose of facilitating second-degree rape. The court of appeals reversed the kidnapping conviction on grounds that the State had proceeded under an improper theory of second-degree rape (the State proceeded on a theory that the victim was physically helpless when in fact force would have been the appropriate theory). The court of appeals concluded: “because the State proceeded under an improper theory of second-degree rape, we are unable to find that the State sufficiently proved the particular felonious intent alleged here.”

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.

The evidence was sufficient to support a conviction of second-degree rape. On appeal the defendant argued that there was insufficient evidence showing that the victim was physically helpless. The State presented evidence that the victim consumed sizable portions of alcohol over an extended period of time, was physically ill in a club parking lot, and was unable to remember anything after leaving the club. When the victim returned to the defendant’s apartment, she stumbled up the stairs and had to hold onto the stair rail. She woke up the following morning with her skirt pulled up to her waist, her shirt off, and her underwear on the bed. Her vagina was sore and she had a blurry memory of pushing someone off of her. She had no prior sexual relationship with the defendant. Moreover, the defendant’s actions following the incident, including his adamant initial denial that anything of a sexual nature occurred and subsequent contradictory admissions, indicate that he knew of his wrongdoings, specifically that the victim was physically helpless. There was sufficient evidence that the victim was physically unable to resist intercourse or to communicate her unwillingness to submit to the intercourse.

State v. Blow, 368 N.C. 348 (Sept. 25, 2015)

For the reasons stated in the dissenting opinion, the court reversed the opinion below, State v. Blow, 237 N.C. App. 158 (Nov. 4, 2014). In this child sexual assault case in which the defendant was convicted of three counts of first-degree rape, the court of appeals had held that the trial court erred by failing to dismiss one of the rape charges. The court of appeals agreed with the defendant that because the victim testified that the defendant inserted his penis into her vagina “a couple” of times, without identifying more than two acts of penetration, the State failed to present substantial evidence of three counts of rape. The court of appeals found that the defendant’s admission to three instances of “sex” with the victim was not an admission of vaginal intercourse because the defendant openly admitted to performing oral sex and other acts on the victim but denied penetrating her vagina with his penis. The dissenting judge believed that the State presented substantial evidence that was sufficient, if believed, to support the jury’s decision to convict of three counts of first degree rape. The dissenting judge agreed with the majority that the victim’s testimony about penetration “a couple” of times would have been insufficient to convict the defendant of three counts, but noted that the record contains other evidence, including the defendant’s admission that he “had sex” with the victim “about three times.”

The trial court did not err by denying the defendant’s motion to dismiss a charge of first-degree rape. Because the victim could not remember the incident, she was unable to testify that she had been raped or that the defendant was the perpetrator. The evidence showed that while out with friends one night, the victim met the defendant. Later that evening, two strangers, John and Jean, responded to a woman screaming for help. They found a man straddling the victim. After throwing the man off, John saw him pull up his pants over an erection. The man ran, chased by John and another person. Jean stayed with the victim, who was on the ground with her pants and underwear pulled to her ankles. An officer saw the chase and detained the defendant, whose pants were undone. John and Jean participated in a show up identification of the defendant shortly thereafter; both identified the defendant as the perpetrator. The victim was taken to the emergency room where a nurse found debris and a small black hair consistent with a pubic hair inside the victim’s vagina. The nurse testified in part that debris cannot enter the vagina unless something had opened the vagina; thus the debris could not have entered merely because she was on the ground. The defendant unsuccessfully moved to dismiss, was convicted and appealed. On appeal the defendant argued that the State failed to produce sufficient evidence that penetration occurred and that he was the perpetrator. The court disagreed, succinctly concluding that a reasonable juror could have inferred that the victim was vaginally penetrated against her will and that the defendant was the perpetrator.

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

In a case in which the defendant was convicted of rape of a child under G.S. 14-27.2A, there was substantial testimony to establish that the defendant engaged in vaginal intercourse with the victim. The victim testified that the defendant put his “manhood inside her middle hole.” Although the victim used potentially ambiguous terms, she explained them, noting that a middle hole is where “where babies come from,” a bottom hole is where things come out of that go in the toilet, and a third hole is for urination. She also described the defendant’s manhood as “down at the bottom but on the front” and not a part a woman has.

State v. Gentle, ___ 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.

There was sufficient evidence to support a conviction for first-degree sex offense. The defendant challenged the sufficiency of the evidence with respect to infliction of serious personal injury on the victim. The defendant, a 43-year-old male approximately 5’10” tall with a medium build, physically and sexually assaulted a 22-year-old female, approximately 5’1” tall and weighing only 96 pounds. The defendant unexpectedly grabbed the victim and threw her down a steep, rocky embankment. He punched her face and head numerous times, and straddled her, pinned her down and strangled her. Although he initially ceased his assault when she stopped resisting, he resumed it when she resumed screaming, punching her face and head before forcing her to perform oral sex on him. The victim was diagnosed with a head injury and experienced pain throughout her body for days. She experienced two black eyes, body bruises, and hoarseness in her voice; and she had difficulty concentrating. At trial the victim testified that she continued to have trouble trusting people, opening up to others, and maintaining friendships. Evidence showed that the victim had difficulty concentrating and remembering and suffered from short-term memory loss from the attack, all of which caused her problems at work. This constitutes sufficient evidence of serious personal injury.

 

Where there was evidence to support a finding that the victim suffered serious personal injury, the trial court did not err in instructing the jury on first-degree sexual offense. The trial court’s instructions were proper where an officer saw blood on the victim’s lip and photographs showed that she suffered bruises on her ribs, arms and face. Additionally the victim was in pain for 4 or 5 days after the incident and due to her concerns regarding lack of safety the victim, terminated her lease and moved back in with her family. At the time of trial, roughly one year later, the victim still felt unsafe being alone. This was ample evidence of physical injury and lingering mental injury.

Mistake of age and consent are not defenses to statutory rape.

The State failed to introduce sufficient evidence of sexual battery. The 13-year-old juvenile was adjudicated delinquent in part based on two counts of sexual battery against two 11-year-old female schoolmates. It was alleged that he draped his arms around the girls’ shoulders in order to smear a glowing liquid on them during an evening of Halloween trick-or-treating. The State failed to introduce sufficient evidence that the juvenile touch the tops of the girls’ breasts for a sexual purpose. One girl testified that the juvenile rubbed “this green glow stick stuff” on her leaving glowing liquid on her shirt above her collarbone. The other girl testified that the juvenile reached his arm around her shoulder and “put this weird green glowing stuff” on her arm and back, also touching her “boobs” over her sweatshirt. In criminal cases involving adult defendants the element of acting for the purpose of sexual arousal, sexual gratification, or sexual abuse may be inferred from the very act itself. However, an intent to arouse or gratify sexual desires may not be inferred in children under the same standard. Rather, a sexual purpose does not exist without some evidence of the child’s maturity, intent, experience, or other factor indicating his purpose in acting. Here, the juvenile denied touching either girl’s breasts, saying that he only put his hand around their shoulders; this account was supported by witnesses. Neither the location nor the alleged manner of the touching was secretive in nature; rather, the incident occurred on a busy public street on Halloween. The evidence was undisputed that the juvenile have been wiping green glowing liquid on trees, signs, and other young people during the evening. Nothing about his attitude suggested a sexual motivation; neither girl said that he made any sexual remarks. And when the girls ran away, he did not try to pursue them.

In re K.C., 226 N.C. App. 452 (Apr. 16, 2013)

There was insufficient evidence to support a delinquency adjudication for sexual battery. Although there was sufficient evidence of sexual contact, there was insufficient evidence of a sexual purpose. When dealing with children, sexual purpose cannot be inferred from the act itself and that there must be “evidence of the child’s maturity, intent, experience, or other factor indicating his purpose in acting.” It continued, “factors like age disparity, control by the juvenile, the location and secretive nature of the juvenile’s actions, and the attitude of the juvenile should be taken into account.” Evaluating the circumstances, the court found the evidence insufficient.

In a sexual battery case, the evidence was sufficient to establish that the defendant grabbed the victim’s crotch for the purpose of sexual arousal, sexual gratification, or sexual abuse. The defendant previously had asked the victim for her phone number and for a date, and had brushed against her thigh in such a manner that the victim reported the incident to her supervisor and was instructed not to be alone with the defendant.

Assault is not a lesser-included offense of sexual battery.

The trial court did not commit plain error by instructing the jury that it could consider whether or not the use of a bottle constituted a deadly weapon during the commission of a sexual offense. The defendant and his accomplice, after tying the victim’s hands and feet, shoved a rag into his mouth, pulled his pants down, and inserted a bottle into his rectum. The victim thought that he was going to die and an emergency room nurse found a tear in the victim’s anal wall accompanied by “serious drainage.”

The court affirmed a conviction for second-degree sexual offense in a case where the defendant surprised a Target shopper by putting his hand up her skirt and penetrating her vagina. The court rejected the defendant’s argument that because his action surprised the victim, he did not act by force and against her will. 

(1) In a second-degree rape and sexual offense case, the evidence sufficiently established use of force. The victim repeatedly declined the defendant’s advances and told him to stop and that she didn’t want to engage in sexual acts. The defendant pushed her to the ground. When he was on top of her she tried to push him away. (2) Because evidence of vaginal penetration was clear and positive, the trial court did not err by failing to instruct the jury on attempted rape.

In Re T.W., 221 N.C. App. 193 (June 5, 2012)

Because there was no evidence of threat of force or special relationship there was insufficient evidence of constructive force to support second-degree sexual offense charges. The State had argued that constructive force was shown by (a) the fact that the juvenile threatened the minor victims with exposing their innermost secrets and their participation with him in sexual activities, and (2) the power differential between the juvenile and the victims. Rejecting this argument, the court concluded: for “the concept of constructive force to apply, the threats resulting in fear, fright, or coercion must be threats of physical harm.” Acknowledging that constructive force also can be inferred from a special relationship, such as parent and child, the court concluded that the relationships in the case at hand did not rise to that level. In this case the juvenile was a similar age to the victims and their relationship was one of leader and follower in school.

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.

Assault on a female is not a lesser-included of first-degree sexual offense.

State v. Hunt, 221 N.C. App. 489 (July 17, 2012) aff’d per curiam, 367 N.C. 700 (Dec 19 2014)

The defendant could not be convicted of second-degree sexual offense (mentally disabled victim) and crime against nature (where lack of consent was based on the fact that the victim was mentally disabled, incapacitated or physically helpless) based on the same conduct (fellatio). The court found that “on the particular facts of Defendant’s case, crime against nature was a lesser included offense of second-degree sexual offense, and entry of judgment on both convictions subjected Defendant to unconstitutional double jeopardy.” [Author’s note: The N.C. Supreme Court has previously held that crime against nature is not a lesser-included offense of forcible rape or sexual offense, State v. Etheridge, 319 N.C. 34, 50–51 (1987); State v. Warren, 309 N.C. 224 (1983), and that a definitional test applies when determining whether offenses are lesser-included offenses, State v. Nickerson, 316 N.C. 279 (2011).].

In this juvenile case, the trial court erred by denying the respondent’s motions to dismiss charges of second-degree sexual exploitation of a minor and first-degree forcible sexual offense but did not err by accepting his admission of attempted larceny in an incident unrelated to the alleged sex crimes.

The State relied on an acting in concert theory in proceeding against the respondent on the second-degree sexual exploitation of a minor charge because all testimony was that a person other than the respondent made a video recording of the respondent apparently engaging in non-consensual sexual contact with the victim.  The court reviewed the evidence presented at trial and found it insufficient to show that the respondent and the person who recorded the video acted with a common plan or scheme to make the recording.  The court stated that the evidence showed that the respondent “did not wish to be recorded and that [the other person’s] decision to record the incident was of his own volition.”

The evidence of penetration was insufficient to support the first-degree forcible sexual offense charge allegedly based on anal intercourse as the victim unambiguously and explicitly denied that anal penetration occurred and the State did not present sufficient other evidence corroborating the allegation of penetration.  The court rejected the State’s argument that a witness’s description of the incident as the respondent and the victim “doing it” was sufficient evidence of penetration and noted that at the adjudicatory hearing the State had conceded “that there was not evidence of penetration.”

There was a sufficient factual basis to support the respondent’s admission to an unrelated charge of attempted misdemeanor larceny of a bicycle where the respondent was found near the crime scene with two people fitting a witness’s description of the suspects, had bolt cutters in his backpack, and denied committing but expressed some knowledge of the larceny to an investigating officer.  Though the trial court did not err by accepting the respondent’s admission to attempted misdemeanor larceny, the court could not remand the matter for a new disposition hearing to account for its rulings related to the sufficiency of the evidence of the sex crimes because the trial court’s juvenile jurisdiction terminated when the respondent turned eighteen years old while the appeal was pending. 

Justice Newby concurred in part and dissented in part, expressing the view that the evidence was sufficient to support the lesser included offense of attempted first-degree forcible sexual offense and that the matter should be remanded for entry of an amended adjudication for that offense.

In this Forsyth County case, the defendant was convicted of four counts of statutory sexual offense with a child by an adult and sixteen charges of indecent liberties with a child based on incidents involving an 8-year-old victim. The victim testified that the defendant rubbed his fingers in circles on her vagina, which she described as “where I wipe at” and “the place where I pee.” She also said that nothing had ever gone “inside” her vagina. On appeal, the defendant argued that there was insufficient evidence to support the sexual offense conviction because there was no evidence of penetration. The Court of Appeals disagreed. A “sexual act” for the purposes of a sexual offense includes the penetration, however slight, by any object into the genital or anal opening of another person’s body, G.S. 14-27.20(4), and case law indicates that penetration of the labia is sufficient penetration within the meaning of that definition. Here, the victim’s testimony indicated that the defendant touched her on her urethral opening, which is located within the labia. The Court of Appeals concluded that the State therefore presented sufficient evidence to support the element of penetration.

In this sex offense with a child case, the trial court did not err by prohibiting the defendant from introducing evidence of the immigration status of the victim’s mother, a testifying witness, on the basis that the evidence was irrelevant under Rule 401.  The mother’s immigration status did not have any tendency to make the existence of a fact of consequence to the determination of the action more probable or less probable.  Further, the trial court did not err by overruling the defendant’s objection to the mother testifying that the defendant had refused to be tested for herpes after it was discovered that the child victim had herpes.  This testimony was not unfairly prejudicial under Rule 403.  Finally, the trial court did not err by denying the defendant’s motion to dismiss a charge of first degree statutory sexual offense for insufficient evidence.  The victim testified that the defendant touched her with his fingers “in the inside” in “the place where [she] go[es] pee,” and this testimony was sufficient evidence of a sexual act for purposes of the offense.

Judge Murphy concurred in the result only, writing a separate opinion to discuss when a witness’s immigration status and knowledge of U-Visas may be relevant for cross-examination, as well as other issues in the case.

The evidence was sufficient to support a conviction for sexual offense of a 13, 14 or 15-year-old. On appeal the defendant argued that the evidence was insufficient as to penetration. At trial the prosecutor asked the victim “How far would you say he was able to get with -- did he actually go between your labia? Do you understand my question?” The victim answered, “Yes.” The prosecutor asked again, “Was he able to do that?” The victim responded again, “Yes.” Viewing the victim’s testimony in the light most favorable to the State, reasonable jurors could have concluded that the State presented sufficient evidence that the defendant penetrated the victim’s labia.

State v. Phachoumphone, ___ N.C. App. ___, 810 S.E.2d 748 (Feb. 6, 2018) review granted, ___ N.C. ___, ___ S.E.2d ___ (Sep 20 2018)

In this child sexual assault case, the evidence was sufficient to support a conviction for statutory sex offense with a child by an adult. Specifically, the court rejected the defendant’s argument that there was insufficient evidence that he digitally penetrated the victim. Among other things: during the victim’s testimony, she demonstrated what the defendant did to her vagina by inserting her finger into a hole that the interpreter created with her hand; the victim stated that the defendant “put his finger in” her private part; a doctor testified that the six-year-old victim’s hymen was substantially missing, an irregular finding which could only have been caused by a penetrating injury; and the doctor observed redness in the vaginal area behind where the hymen was, which indicated a penetrating injury within the last 48 hours.

In re J.F., 237 N.C. App. 218 (Nov. 18, 2014)

In a sexual offense case involving fellatio, proof of penetration is not required.

There was sufficient evidence of penetration during anal intercourse to sustain convictions for statutory sex offense and sexual activity by a substitute parent. The victim testified that the defendant “inserted his penis . . . into [her] butt,” that the incident was painful, and that she wiped blood from the area immediately after the incident.

State v. Carter, 216 N.C. App. 453 (Nov. 1, 2011) rev’d on other grounds, 366 N.C. 496 (Apr 12 2013)

There was sufficient evidence of anal penetration to support a sexual offense charge. Although the evidence was conflicting, the child victim stated that the defendant’s penis penetrated her anus. Additionally, a sexual assault nurse examiner testified that the victim’s anal fissure could have resulted from trauma to the anal area.

The evidence was sufficient of a sexual offense where the child victim testified that the defendant reached beneath her shorts and touched between “the skin type area” in “[t]he area that you pee out of” and that he would rub against a pressure point causing her pain and to feel faint. A medical expert testified that because of the complaint of pain, the victim’s description was “more suggestive of touching . . . on the inside.”