Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

About

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

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

Instructions

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

E.g., 06/25/2024
E.g., 06/25/2024
Displays are limited to 500 cases at a time; to see all relevant cases, narrow results by entering search terms or date/court limitations or clicking on a table of contents subcategory.

In this Henderson County case, defendant appealed his conviction for trafficking opium or heroin by possession, arguing error in the denial of his requested instruction that the jury must find he knew what he possessed was fentanyl. The Court of Appeals found no error. 

In March of 2018 the Henderson County Sheriff’s Office executed a warrant for defendant’s arrest at a home in Fletcher. During the arrest, an officer smelled marijuana and heard a toilet running in the house, leading the police to obtain a search warrant for the entire home. During this search, officers found a plastic bag with white powder inside, as well as some white powder caked around the rim of a toilet. Officers performed a field test on the substance which came back positive for cocaine, but when lab tested, the substance turned out to be fentanyl. At trial, one of the officers testified that “everyone” at the scene believed the substance they found was cocaine on the day of the search. Defendant chose not to testify during the trial, and had previously refused to give a statement when arrested. 

Turning to defendant’s arguments, the court found that no evidence in the record supported defendant’s contention that he lacked guilty knowledge the substance was fentanyl. Defendant pointed to the officer’s testimony that “everyone” believed the substance was cocaine, but “[r]ead in context, it is apparent that [the officer] was referring to the knowledge of the officers who initially arrested [defendant and another suspect] for possession of cocaine, as the excerpted testimony immediately follows a lengthy discussion of their rationale for doing so.” Slip Op. at 8. Because defendant did not testify and no other evidence supported his contention that he lacked knowledge, his circumstances differed from other cases where a defendant was entitled to a guilty knowledge instruction. The court explained that evidence of a crime lacking specific intent, like trafficking by possession, creates a presumption that defendant has the required guilty knowledge; unless other evidence in the record calls this presumption into question, a jury does not have to be instructed regarding guilty knowledge. Id. at 9. 

 

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.

State v. Greenfield, 375 N.C. 434 (Sept. 25, 2020)

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.

 

In this New Hanover County case, defendant appealed after being found guilty of two counts of first-degree murder and three counts of attempted first-degree murder, arguing (1) the indictment for attempted first-degree murder failed to include an essential element of the offense, (2) error in denying his motion to dismiss one of the attempted murder charges, and (3) error in admitting evidence of past acts of violence and abuse against two former romantic partners. The Court of Appeals found no error.

In August of 2014, after defendant assaulted his girlfriend, a protective order was granted against him. On December 22, 2014, defendant tried to reconcile with his girlfriend, but she refused; the girlfriend went to the house of a friend and stayed with her for protection. Early the next morning, defendant tried to obtain a gun from an acquaintance, and when that failed, he purchased a gas can and filled it with gas. Using the gas can, defendant set fires at the front entrance and back door of the home where his girlfriend was staying. Five people were inside when defendant set the fires, and two were killed by the effects of the flames. Defendant was indicted for first-degree arson, two counts of first-degree murder, and three counts of attempted first-degree murder, and was convicted on all counts (the trial court arrested judgment on the arson charge).

Examining issue (1), the Court of Appeals explained that “with malice aforethought” was represented in the indictment by “the specific facts from which malice is shown, by ‘unlawfully, willfully, and feloniously . . . setting the residence occupied by the victim(s) on fire.’” Slip Op. at 10. Because the ultimate facts constituting each element of attempted first-degree murder were present in the indictment, the lack of “with malice” language did not render the indictment flawed.

Considering defendant’s argument (2), that he did not have specific intent to kill one of the victims because she was a family member visiting from Raleigh, the court found that the doctrine of transferred intent supported his conviction. Under the doctrine, “[t]he actor’s conduct toward the victim is ‘interpreted with reference to his intent and conduct towards his adversary[,]’ and criminal liability for the third party’s death is determined ‘as [if] the fatal act had caused the death of [the intended victim].’” Id. at 12, quoting State v. Locklear, 331 N.C. 239 (1992). Here defendant was attempting to kill his girlfriend, and the intent transferred to the other victims inside the home at the time he set the fires.

Considering (3) the admission of several prior acts of violence by defendant towards his girlfriend and another romantic partner, the court first determined the evidence was relevant under Rules of Evidence 401 and 402, and conducted an analysis under Rule 404(b), finding the evidence tended to show intent, motive, malice, premeditation, and deliberation. The court then looked for abuse of discretion by the trial court under the Rule 403 standard, finding that the admission of the relevant evidence did not represent error.

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. 

In this Alamance County case, defendant appealed his convictions for human trafficking and sexual servitude regarding his ex-wife, arguing error in the denial of his motion to dismiss for insufficient evidence. The Court of Appeals found no error.

From 2015 to 2018, defendant operated a prostitution ring in the Alamance County area, operating at truck stops and using websites such as backpage.com to solicit customers. Eight to twelve women were involved in defendant’s prostitution ring, and paid him for drugs and hotel rooms that he provided, which were to be used for liaisons with paying customers. One of the women involved in the prostitution ring was defendant’s ex-wife, who assisted him in doing whatever was needed to operate the prostitution ring. After several incidents with law enforcement, defendant was arrested and charged with several counts of human trafficking, sexual servitude, and promoting prostitution. Another prostitute that worked with defendant was also charged and reached a plea agreement after agreeing to testify for the state. 

Reviewing defendant’s appeal, the court found ample evidence to support the denial of defendant’s motion to dismiss. Defendant argued that there was insufficient evidence showing he held his wife in sexual servitude or trafficked her. The court pointed to evidence showing that defendant arranged for and transported his ex-wife to a truck stop on at least one occasion in 2017 for prostitution, including evidence showing his name on a business card used by the caller requesting a prostitute. Evidence also showed that defendant sold drugs to his ex-wife and provided her with a room at the hotel where he provided rooms to the other prostitutes he managed. Based on this evidence in the record, the court found no error in dismissing defendant’s motion. Although the court noted that some evidence supported the conclusion that the ex-wife may have been involved in the management of the prostitution ring, the court explained that “[c]ontradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.” Slip Op. at 12-13, quoting State v. Scott, 356 N.C. 591, 596 (2002).

 

State v. Applewhite, ___ N.C. App. ___, 2021-NCCOA-694 (Dec. 21, 2021) review granted, ___ N.C. ___, 871 S.E.2d 511 (May 4 2022)

In this human trafficking case involving multiple victims, (1) the trial court did not abuse its discretion by allowing the defendant to represent himself; (2) the indictments were sufficient to convey subject matter jurisdiction; (3) the trial court did not err by entering judgments for multiple counts of human trafficking for each victim; and (4) the trial court did not err in determining the defendant’s prior record level.

(1)  The Court of Appeals rejected the defendant’s argument that the trial court’s statements concluding that he had an “absolute right” to represent himself coupled with the trial court’s failure to consider whether he fell into the “gray area” of being competent to stand trial but incapable of representing himself was a mistake of law requiring a new trial.  While the defendant suffered from an unspecified personality disorder and drug use disorders, the record showed that the trial court “undertook a thorough and realistic account of Defendant’s mental capacities and competence before concluding Defendant was competent to waive counsel and proceed pro se.”  The Court of Appeals noted that after interacting with him, considering his medical conditions, and receiving testimony concerning his forensic psychiatric evaluation, two judges had ruled that Defendant was competent to proceed and represent himself.  The Court of Appeals said that even if the trial court erred in allowing the defendant to represent himself, he invited the error by disagreeing with the manner of representation of appointed counsel and any such error was harmless beyond a reasonable doubt.

(2) The Court of Appeals rejected the defendant’s arguments concerning the sufficiency of the seventeen indictments charging him with human trafficking of six different victims.  The Court noted that the indictments alleged every element of the offense within a specific time frame for each victim and tracked the language of the relevant statute word for word.

(3) The Court then turned to and rejected the defendant’s argument that human trafficking is a continuous offense and may only be charged as one crime for each victim.  The Court explained that the defendant’s interpretation of G.S. 14-43.11, which explicitly provides that each violation of the statute “constitutes a separate offense,” would “result in perpetrators exploiting victims for multiple acts, in multiple times and places, regardless of the length of the timeframe over which the crimes occurred as long as the Defendant’s illegal actions and control over the victim were ‘continuous.’”  The Court characterized human trafficking as “statutorily defined as a separate offense for each instance.” 

(4) Finally, the Court determined that the defendant failed to show any error in the trial court’s calculation of his prior record level for sentencing purposes.  With regard to a prior federal felon in possession of a firearm charge, the defendant conceded its classification as a Class G felony on the basis of substantial similarity by not objecting at trial when given the opportunity.  Likewise with regard to a misdemeanor drug paraphernalia charge, the defendant conceded its classification as a Class 1 misdemeanor by not objecting when given the opportunity.

Judge Arrowood concurred in part and dissented in part by separate opinion, expressing his view that it was improper to convict the defendant of multiple counts per victim of human trafficking.  Judge Arrowood explained that North Carolina precedent, specifically involving issues of first impression addressing statutory construction, “clearly instructs that, where a criminal statute does not define a unit of prosecution, a violation thereof should be treated as a continuing offense.”  Judge Arrowood then proceeded with a lengthy and detailed analysis of the appropriate unit of prosecution for human trafficking in North Carolina.

(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.

State v. Glover, 376 N.C. 420 (Dec. 18, 2020)

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 re J.D., 376 N.C. 148 (Dec. 18, 2020)

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).

In this New Hanover county case, defendant appealed his convictions for two counts of first-degree sexual exploitation of a minor, arguing error in (1) denying his motion to dismiss for insufficient evidence, (2) failing to instruct the jury on second-degree exploitation of a minor as a lesser-included offense, (3) allowing a detective to provide testimony regarding the elements of the charged offense, and (4) mistakenly identifying the charge as “sexual assault” one time during the jury instruction. The Court of Appeals found no error. 

In 2018, defendant and a group of friends attended a Halloween party with the plan to find a girl and have sex with her while filming it. Several members of the group made recordings of defendant and others having sex with a minor girl from the party, and these videos were discovered by law enforcement during an unrelated traffic stop. Defendant filed a motion to dismiss the charges, but the trial court denied the motion, and defendant was subsequently convicted of both counts. 

For (1), defendant argued that there was insufficient evidence that he engaged in the sex with a minor for the purpose of producing material showing their sexual activity, an essential element of the charges. The Court of Appeals explained that defendant was guilty of the offense because he acted in concert with others. Even if defendant was not the principal offender, the court concluded that “substantial evidence demonstrates [defendant] acted in concert with his friends by engaging in the sexual activity which they recorded with the knowledge they were recording it.” Slip Op. at 9.

Moving to (2), the court looked to the statutes creating the relevant offenses, noting that under G.S. 14-190.16(a)(1) “[t]he focus of first-degree sexual exploitation is the direct mistreatment of the minor or the production of material for sale or profit.” Id. at 13. This contrasted with G.S. 14-190.17(a)(1), where second-degree sexual exploitation criminalized the actions of those “involved in the production or after-the-fact distribution of such material,” without the requirement of producing material for sale or gain. Id. The court also pointed to State v. Fletcher, 370 N.C. 313 (2017), where the Supreme Court highlighted that the second-degree sexual exploitation did not involve directly facilitating the involvement of a minor victim. This led the court to conclude that second-degree exploitation of a minor was not a lesser-included offense. 

In (3), defendant argued that the officer’s testimony instructed the jury that merely being filmed having sex constituted a violation of G.S. 14-190.16(a)(1), and this testimony confused the jury as to the statute’s requirement that defendant must have intent to produce material. The court disagreed, pointing out that the testimony was during cross-examination related to the questioning of one of the friends who attended the party, and the officer “simply answered why he did not feel compelled to question [one of the friends] regarding the filming of the sexual activity, and he gave a logical, albeit legally incorrect, response.” Id. at 16. The court determined this response made sense in context, and was not improperly instructing the jury as to the elements of the offense. 

Arriving at (4), the court explained that the trial court’s mistaken statement that the offense was “sexual assault” only occurred once, during the instruction related to acting in concert. This was inadvertent, and the trial court provided the correct instruction on the elements of first-degree exploitation of a minor, as well as the correct charge when providing a second instruction on acting in concert where the trial court did not make the mistake. As a result, the court found no danger that the jury was confused as to the charge. 

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 McDowell County case, defendant appealed his convictions for conspiracy to traffic in methamphetamine and aiding and abetting a continuing criminal enterprise (“CCE”), arguing (1) the CCE indictment was fatally flawed as it did not specify each of the acts committed under the CCE, and (2) the conspiracy verdict was fatally ambiguous, as it was impossible to determine if the jury unanimously found trafficking by possession or by transportation. The Court of Appeals majority agreed regarding (1), vacating defendant’s CCE conviction, but upheld the conspiracy to traffic methamphetamine conviction in (2). 

Defendant was an admitted participant in a drug trafficking enterprise, but was not an organizer or employee of the principal operation, instead being a routine purchaser of drugs for resale. Considering (1), the Court of Appeals noted that G.S. 90-95.1 defines the offense of CCE, and that the federal crime in 21 U.S.C. § 848 has nearly identical wording. This led the court to consult applicable precedent in Richardson v. United States, 526 U.S. 813 (1999), for the idea that specificity of illegal conduct is essential in a CCE indictment. The court found no such specificity here, explaining:

The indictment does not allege that the enterprise engaged in any specific conduct, only defining the CCE as “a continuing series of violations of Article 5 of Chapter 90 of the General Statutes” and generally naming the participants and their positions in the trafficking scheme’s hierarchy.  A juror would have no way of knowing how many criminal acts were committed within the organization or how Defendant’s acts advanced them; while the indictment specifies that Defendant aided and abetted the CCE “by trafficking in methamphetamine[,]” it says nothing of why the enterprise with which Defendant dealt constituted a CCE.

Slip Op. at 8-9. This led the court to hold that “each underlying act alleged under N.C.G.S. § 90-95.1 constitutes an essential element of the offense” and that “a valid indictment under N.C.G.S. § 90-95.1 requires the state to specifically enumerate the acts alleged.” Id. at 9. Because the State did not do so in the current case, the indictment was fatally defective and the court vacated defendant’s CCE conviction. 

Moving to (2), the court explained that the core of defendant’s argument was that failing to distinguish between trafficking by possession and by transportation rendered the jury’s verdict fatally ambiguous. The court drew a distinction between disjunctive jury instructions that (a) would allow a jury to find defendant guilty of any one of multiple underlying offenses, or (b) various alternative acts that establish elements of the single offense being charged. Here, the court found (b), as “[w]here a conspiracy charge disjunctively lists multiple offenses . . . each underlying offense does not create a separate conspiracy, but is instead an alternative act by which a Defendant may be found guilty of the singular conspiracy alleged.” Id. at 11. This led the court to find no fatal ambiguity for defendant’s conspiracy conviction. 

Judge Stroud concurred in part and dissented in part by separate opinion, and would have found no fatal ambiguity (1), allowing the CCE conviction to stand. Id. at 13.

In this Cleveland County case, defendant appealed his conviction for aiding and abetting possession of a firearm by a felon, arguing a fatally defective indictment and error in dismissing his motion to dismiss for insufficient evidence. The Court of Appeals disagreed on both points and found no error.

Detectives in an unmarked vehicle observed a black pickup truck swerve left of the center line several times while driving, and initiated a traffic stop. Defendant was seated in the passenger seat of the truck when the detectives approached. The driver of the vehicle was known to be a felon by the detectives, and they conducted Terry frisks of defendant and the driver of the truck, finding .32 caliber ammunition in the pocket of the driver. After finding the ammunition, the detectives searched the truck, finding a handgun inside the glovebox and another hidden under the center seat, as well as magazines and ammunition around the vehicle.

Reviewing defendant’s challenge to the indictment, the Court of Appeals first explained the necessary elements of aiding and abetting another person in a crime, and the then the necessary elements of possession of a firearm by a felon. Turning to the text of the indictment, the court found all the necessary elements for the crime, overruling defendant’s argument.

The court next looked to the sufficiency of the evidence, explaining that defendant argued no proof of his intent to commit the crime, even though the elements of the offense do not include an intent requirement, because the indictment referenced his knowledge of the driver’s prior felony conviction. Looking at the evidence in the record, the court found sufficient evidence that defendant provided a firearm to the driver of the vehicle, and that defendant was aware of the driver’s prior felony conviction. This led the court to conclude sufficient evidence existed to support the conviction. 

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.

State v. Crew, 281 N.C. App. 437 (Jan. 18, 2022)

The defendant was charged with and convicted of dogfighting and related offenses in Orange County. (1) He argued the evidence was insufficient to establish his specific intent to keep the dogs for purposes of fighting. The court disagreed. When the county Animal Services officials visited the property, they found equipment used in the strength training of dogs, at-home medications used to treat animal wounds, and an apparent dogfighting pit, as well as notes on preparing dogs for fights and dogfighting magazines. There was also evidence that many of the dogs had medical conditions commonly associated with dogfighting. This was sufficient evidence of the defendant’s specific intent, and the trial court properly denied the motion to dismiss for insufficient evidence.

(2) During direct examination of its expert witness, the State asked a leading question about the defendant’s intent. The defendant did not object at trial but complained on appeal that the question amounted to plain error. The court disagreed, noting that trial courts have the discretion to allow leading questions concerning evidence previously admitted without objection, as was the case here. The court further observed that plain error review is not available for discretionary decisions of the trial court, and the case “did not remotely approach” the circumstances where invocation of Rule 2 of the Rules of Appellate Procedure was warranted to obtain review. Even assuming plain error review was available, the court found there was no error—plain or otherwise—and rejected this argument.

(3) The trial court ordered the defendant to pay Animal Services restitution in the amount of $70,000 for its care and keep of the animals and immediately converted the award to a civil judgment (presumably based on the 60-month minimum active portion of the sentence imposed in the case). Thirty dogs were seized from the defendant’s property, but he was only convicted of offenses relating to 17 of the animals. According to the defendant, the restitution award should have therefore been proportionally reduced. The court disagreed, observing that “[t]he trial court may impose restitution for ‘any injuries or damages arising directly and proximately out of the offense committed by the defendant,’” pointing to G.S. 15A-1340.34(c). Crew Slip op. at 9. Because the defendant’s crimes resulted in the removal of all the animals, he could properly be held responsible for the cost of caring for the animals.

The defendant also argued that the trial court erred in failing to consider his ability to pay before ordering restitution. While the trial court need not make express findings on the issue, G.S. 15A-1340.36(a) requires the judge to consider the defendant’s ability to pay among several other factors when deciding restitution. Here, there was evidence in the record concerning the defendant’s income, the price of a “good puppy,” and of the defendant’s living arrangements. “Based on this evidence, the trial court’s determination that the defendant had the ability to pay was within the court’s sound discretion and certainly not manifestly arbitrary or outside the realm of reason.” Crew Slip op. at 10-11.

Finally, the defendant argued the trial court improperly converted the restitution award to a civil judgment. The court agreed. The restitution statutes distinguish between offenses subject to the Crime Victim’s Rights Act (“VRA”) and offenses exempt from that law. G.S. 15A-1340.38 expressly authorizes a trial court to convert an award of restitution to a civil judgment in VRA cases. No similar statutory authorization exists for non-VRA cases. While some other offenses have separate statutory provisions permitting conversion of a restitution award to a civil judgment (see, e.g., G.S. 15-8 for larceny offenses), no such statute applied to the crimes of conviction here. The court noted that G.S. 19A-70 authorizes animal services agencies to seek reimbursement from a defendant for the expenses of seized animals and observed that the agency failed to pursue that form of relief. The court rejected the State’s argument that the trial court’s action fell within its inherent authority. The civil judgments were therefore vacated. The convictions and sentence were otherwise undisturbed.

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.

In this Randolph County case, defendant appealed his convictions for attempted first-degree murder, attempted robbery with a dangerous weapon, and possession of a firearm by a felon, arguing error in denying his motions to dismiss for insufficient evidence, and error by the trial court in calculating his prior record level. The Court of Appeals found no error. 

In October of 2018, defendant approached the victim at a convenience store and attempted to pull open the victim’s driver’s side door. The door was locked, so defendant tapped on the glass with a revolver while telling the victim to open the door. The victim opened the door and exited the vehicle, but then attempted to grab the gun from defendant. After a scuffle defendant fell to the ground, causing the gun to fire. As the victim fled, defendant fired two more shots at him, missing both times. 

On appeal, defendant argued that since he made no express appeal for money or property, there was insufficient evidence to support his attempted robbery conviction. The Court of Appeals disagreed, noting that defendant “displayed a gun, threatened its use, and made an obvious implied demand.” Slip Op. at 7. The court rejected defendant’s argument that since the events did not occur in a retail setting his words could not be interpreted as an implied demand. 

The court also rejected defendant’s argument that intent for attempted murder could not be inferred by the multiple gunshots because his first shot was accidental, and his second and third shots were wide misses. Defendant also argued his intent could have been to scare or warn the victim, not kill him. The court explained that where multiple shots were fired and at least one was aimed at the victim, sufficient evidence existed to infer intent under State v. Allen, 233 N.C. App. 507 (2014). Likewise, the court held that defendant’s poor aim did not negate the intent or support his argument of scaring or warning the victim, as the victim saw the gun pointed at him before the shots and other factors such as poor lighting likely influenced the accuracy. 

Finally, the court rejected defendant’s argument that the trial court did not properly find substantial similarity between the out-of-state offenses and in-state offenses. The court explained that defendant admitted no evidence to show improper calculation, and “[g]iven the [trial court’s] indication of review in open court and its full execution of the sentencing worksheet finding substantial similarity, this Court presumes the trial court reached this finding properly.” Id. at 12. 

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.

In this Watauga County case, the Supreme Court reversed the Court of Appeals majority decision vacating defendant’s conviction for conspiracy to commit robbery with a dangerous weapon, reinstating his conviction. 

In April of 2017, defendant and two associates planned to rob a drug dealer in Boone. After texting to set up a plan, one of defendant’s associates agreed to go to the apartment of the drug dealer. The associate went to the apartment in question, but initially did not leave his car in the parking lot; after leaving for about 24 minutes, he returned and then entered the apartment. Meanwhile, defendant and the other associate waited, and broke in to the apartment after the meeting was underway. Defendant was indicted for robbery with a dangerous weapon, felonious breaking or entering, and conspiracy to commit both felonies. Defendant moved to dismiss, arguing the State did not present sufficient evidence of multiple conspiracies, but the trial court denied the motion. The jury found defendant guilty of all four charges. On appeal, the Court of Appeals vacated defendant’s conspiracy to commit robbery charge, reasoning that “the State’s evidence established one single conspiracy that continued from on or around 18 April 2017 through the date of the breaking or entering and armed robbery on 27 April 2017.” Slip Op. at 4. The State appealed based upon the dissenting judge’s opinion. 

Taking up the State’s appeal, the Supreme Court first noted “the Court of Appeals erred in determining the charge of conspiracy to commit breaking or entering would be the conspiracy charge to remain if there had been sufficient evidence of only one conspiracy.” Id., note 1. The Court then explained that “in the course of completing the target crime of an original conspiracy, a defendant may enter into an additional and separate conspiracy to commit a different crime not conspired to originally.” Id. at 6. Here, the State had the burden of showing that defendant and at least one other person entered into conspiracies for both of the crimes charged. Looking to the record, the Court found adequate evidence of a conspiracy to commit robbery with a dangerous weapon. Additionally, the Court explained that “[i]mportantly, no evidence was produced that the original plan included breaking or entering the apartment.” Id. at 8. Instead, it appeared that defendant and at least one of his associates reevaluated their plan when it became clear that the meeting would occur inside the drug dealer’s apartment, and formed an additional conspiracy to break and enter the apartment on the fly. The Court explained the outcome:

When viewed in the light most favorable to the State, a rational juror could conclude that the original plan was to rob [the drug dealer] in the parking lot. When viewed in the light most favorable to the State, a rational juror could also conclude that, in those twenty-four minutes between [the associate’s] first and second appearances at the apartment complex, defendant and at least one other person formed an additional and separate conspiracy—a new plan. In the new plan, [the associate] would enter [the drug dealer’s] apartment for the meeting, and defendant and [another associate] would feloniously break into the apartment.

Id. at 9.

Justice Riggs, joined by Justice Earls, dissented and would have affirmed the vacatur of the conspiracy to commit felonious breaking or entering conviction (see note 1 of the Slip Opinion), along with remand for resentencing based on the single conspiracy charge. Id. at 11. 

State v. Mylett, 374 N.C. 376 (May. 1, 2020)

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.

In this McDowell County case, defendant appealed his convictions for conspiracy to traffic in methamphetamine and aiding and abetting a continuing criminal enterprise (“CCE”), arguing (1) the CCE indictment was fatally flawed as it did not specify each of the acts committed under the CCE, and (2) the conspiracy verdict was fatally ambiguous, as it was impossible to determine if the jury unanimously found trafficking by possession or by transportation. The Court of Appeals majority agreed regarding (1), vacating defendant’s CCE conviction, but upheld the conspiracy to traffic methamphetamine conviction in (2). 

Defendant was an admitted participant in a drug trafficking enterprise, but was not an organizer or employee of the principal operation, instead being a routine purchaser of drugs for resale. Considering (1), the Court of Appeals noted that G.S. 90-95.1 defines the offense of CCE, and that the federal crime in 21 U.S.C. § 848 has nearly identical wording. This led the court to consult applicable precedent in Richardson v. United States, 526 U.S. 813 (1999), for the idea that specificity of illegal conduct is essential in a CCE indictment. The court found no such specificity here, explaining:

The indictment does not allege that the enterprise engaged in any specific conduct, only defining the CCE as “a continuing series of violations of Article 5 of Chapter 90 of the General Statutes” and generally naming the participants and their positions in the trafficking scheme’s hierarchy.  A juror would have no way of knowing how many criminal acts were committed within the organization or how Defendant’s acts advanced them; while the indictment specifies that Defendant aided and abetted the CCE “by trafficking in methamphetamine[,]” it says nothing of why the enterprise with which Defendant dealt constituted a CCE.

Slip Op. at 8-9. This led the court to hold that “each underlying act alleged under N.C.G.S. § 90-95.1 constitutes an essential element of the offense” and that “a valid indictment under N.C.G.S. § 90-95.1 requires the state to specifically enumerate the acts alleged.” Id. at 9. Because the State did not do so in the current case, the indictment was fatally defective and the court vacated defendant’s CCE conviction. 

Moving to (2), the court explained that the core of defendant’s argument was that failing to distinguish between trafficking by possession and by transportation rendered the jury’s verdict fatally ambiguous. The court drew a distinction between disjunctive jury instructions that (a) would allow a jury to find defendant guilty of any one of multiple underlying offenses, or (b) various alternative acts that establish elements of the single offense being charged. Here, the court found (b), as “[w]here a conspiracy charge disjunctively lists multiple offenses . . . each underlying offense does not create a separate conspiracy, but is instead an alternative act by which a Defendant may be found guilty of the singular conspiracy alleged.” Id. at 11. This led the court to find no fatal ambiguity for defendant’s conspiracy conviction. 

Judge Stroud concurred in part and dissented in part by separate opinion, and would have found no fatal ambiguity (1), allowing the CCE conviction to stand. Id. at 13.

In this Randolph County case,  the Court of Appeals upheld defendant’s conviction for solicitation to commit first-degree murder, finding no prejudicial error by the trial court.

In 2018, defendant, a high school student, confessed to his girlfriend that he had homicidal thoughts towards several of his fellow students, and attempted to recruit his girlfriend to help him act on them. His girlfriend showed the messages they exchanged to her mother and the school resource officer, leading to further investigation that found defendant had a cache of guns and knives, as well as a detailed list of persons he wished to kill and methods he would use. When the matter came to trial, the state offered testimony from 11 of the 13 persons on the kill list, and during closing arguments made reference to the “current events” that were presumably mass shootings at high schools. Defendant was subsequently convicted in 2020.

Reviewing the appeal, the court first considered (a) defendant’s motion to dismiss for insufficient evidence, reviewing whether defendant solicited his girlfriend for the crime. The court found sufficient evidence of solicitation, explaining that solicitation is an “attempt to conspire,” and the offense does not require fully communicating the details of the plan. Instead, once defendant proposed the killings he had planned to his girlfriend, and attempted to recruit her to assist, the offense was complete, despite the fact that he did not fully share his detailed plans. Slip Op. at 12-13.

The court next considered (b), dismissing defendant’s argument that the indictment fatally varied from the jury instruction; the court found that this was actually an attempt to present an instructional error “within the Trojan horse of a fatal variance.” Id. at 15. Considering (c), the court disagreed with defendant’s allegation that Rules of Evidence 401 and 402 barred admission of defendant’s drawings and notes of the Joker and weapons, and testimony from 11 of the potential victims. The drawings were relevant to show defendant’s state of mind and evaluate the nature of the potential crime, and the testimony was relevant to show the potential victims were real people and that defendant had the specific intent to commit the crime. Id. at 17-18. The court also considered (d) whether Rule of Evidence 403 barred admission of this evidence as prejudicial, finding no abuse of discretion as “the evidence served a probative function arguably above and beyond inflaming [the jury’s passions].” Id. at 20.

Considering the final issue (e), whether the trial court should have intervened ex mero moto during the state’s closing argument, the court found error but not prejudicial error. The court found error in the state’s closing argument when the prosecutor “appealed to the jury’s sympathies by describing the nature of the Joker and insinuating that [d]efendant was planning a mass shooting.” Id. at 25. The court presumed that these statements were intended to suggest that defendant’s conviction would assist in preventing another mass shooting, but noted that they did not rise to the level of prejudicial error due to the other factual details in the argument, and the “multiple items of physical evidence and segments of testimony evidencing [d]efendant’s intent.” Id. at 28.

In this Hoke County case, defendant Stanley Draughon was found guilty by a jury of assault with a deadly weapon with the intent to kill inflicting serious injury (AWDWIKISI) and conspiracy to commit AWDWIKISI, and defendant Phyllis Mull was found guilty of conspiracy to commit AWDWIKISI. The charges arose from an incident in which Draughon and an unidentified man beat a victim, McBryde, with an object and tased him, breaking several bones in his arms and legs, among other injuries. At trial, Draughon’s lawyer objected to the State’s questioning related to Draughon’s cell phone, which had been seized from the vehicle of the person who drove Draughon to the sheriff’s office to turn himself in. Evidence from the phone indicated that Draughon and Mull had exchanged many text messages and calls. Additional testimony indicated that Mull wound up in possession of a box cutter that McBryde typically carried and had used in self-defense when he was assaulted.

(1) On appeal, Draughon argued that the evidence related to his cell phone should have been suppressed. The Court of Appeals disagreed, concluding that Draughon’s lawyer made only a general objection to the evidence at trial without specifying that he was making a motion to suppress or requesting a voir dire, as required by G.S. 15A-977. As a result, the defendant waived appellate review of the issue.

(2) Defendant Draughon also challenged the trial court’s denial of his motion to dismiss the conspiracy to commit AWDWIKISI charge at the close of the State’s evidence and at the close of all evidence. The Court of Appeals disagreed, concluding that, viewed in the light most favorable to the State, there was sufficient evidence of each element of the conspiracy charge. The numerous calls and texts between Draughon and Mull reflected that they had a relationship, and the facts that Mull was standing behind Draughon when he assaulted McBryde and that Mull wound up with McBryde’s box cutter constituted substantial evidence that Draughon had conspired to assault McBryde. Defendant Mull likewise argued that the trial court erred by denying her motion to dismiss. Again, the Court of Appeals disagreed, citing evidence indicating that Mull had agreed to invite Draughon and the other assailant into her house so they could wait for McBryde to assault him. 

(3) Finally, the Court of Appeals concluded that Defendant Mull’s argument regarding the trial court’s denial of her motion for judgment notwithstanding the verdict was not preserved for appeal, because her trial lawyer did not state the basis for the motion. The Court went on to decline Mull’s request to invoke Rule 2 of the Rules of Appellate Procedure to consider the issue, reasoning that Mull’s not guilty verdict on her AWDWIKISI charge was neither contradictory to nor mutually exclusive with her conviction for conspiracy to commit AWDWIKISI, as the conspiracy was complete when there was a meeting of minds between the conspirators, without any requirement for an overt act.

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.

In this Cumberland County case, defendant appealed his conviction for first-degree murder by torture, arguing error in (1) denying his motion to dismiss for failure to prove proximate cause, and (2) admitting testimony from two experts for the State. The Court of Appeals found no error. 

In November of 2015, the victim, defendant’s 3-year-old daughter, was admitted to the hospital unconscious and with a body temperature of only 88 degrees. The care team at the hospital observed injuries that were indicative of physical and sexual abuse, including tearing of the victim’s anus and bruising on her labia and inner thighs, as well as contusions and hemorrhaging under the skin on her limbs and torso. The victim ultimately died at the hospital, and the cause of death was identified as “acute and organizing bilateral bronchopneumonia in the setting of malnutrition, neglect and sexual abuse.” Slip Op. at 5. At trial, the State called the emergency physician who treated the victim, as well as two other experts, the medical examiner who performed the autopsy and a developmental and forensic pediatrician. Defendant did not object to their testimony at trial. Defendant moved to dismiss the charges at the close of State’s evidence, arguing insufficient evidence to show that he withheld food or hydration to proximately cause the victim’s death. The trial court denied the motion, and defendant was subsequently convicted.  

Taking up (1), the Court of Appeals held that defendant’s conduct was torture sufficient to support the conviction. The court established that first-degree murder by torture does not require a showing of premeditation or specific intent to kill the victim, only a “course of conduct by one or more persons which intentionally inflicts grievous pain and suffering upon another for the purpose of punishment, persuasion, or sadistic pleasure.” Id. at 10, quoting State v. Anderson, 346 N.C. 158 (1997). Here extensive evidence in the record showed that the victim did not eat around defendant and lost weight when in his care. Evidence also showed that defendant would beat the victim for her lack of appetite, and defendant would withhold water from her as punishment. The court concluded that “[b]eating [the victim] with a belt, forcing her to exercise, withholding water, and sexually assaulting her” clearly constituted torture. Slip Op. at 11-12. The court then turned to proximate cause, explaining “[f]ar from being unfortunate and independent causes, [the victim’s] starvation and pneumonia are the ‘natural result’ of Defendant’s ‘criminal act[s]’ of violently and sexually abusing [the victim] . . . there was no break in the causal chain.” Id. at 15. Because the victim’s death was a reasonably foreseeable result of defendant’s actions when applying the standard of a “person of ordinary prudence,” the court concluded there was no error in denying defendant’s motion. Id. at 16. 

Looking to (2), the court applied a plain error standard as defendant did not object at trial to the testimony of either expert. Explaining that Rule of Evidence 702 governs expert testimony, the court first noted that it did not see error in the testimony of either expert. Presuming an error was committed, the court concluded the jury would likely have reached the same verdict without the challenged testimony due to the sheer weight of evidence against defendant. 

In this Brunswick County case, defendant appealed denial of her motion to dismiss the murder charge against her, arguing that it represented double jeopardy. The Court of Appeals affirmed the trial court’s denial of the motion. The facts of this case are substantially similar to State v. Tripp, 2022-NCCOA-795, as the defendant in this case is the mother of the child that was abused, and the defendant in Tripp was her boyfriend at the time.

Following the same analysis as the opinion in Tripp, the court applied the same-elements test from Blockburger v. United States, 284 U.S. 299 (1932), and the exception for requisite elements of the crime found in Diaz v. United States, 223 U.S. 442 (1912), to establish the prosecution for murder was not double jeopardy under the felony murder theory. The court also noted “prosecution for first-degree murder theories such as premeditation and deliberation or torture satisfies the Blockburger test and does not violate [d]efendant’s constitutional right to be protected against double jeopardy.” Slip Op. at 10. The court dismissed defendant’s argument that due process protections prevented her prosecution so long after the events, noting the State could not bring charges for murder until the victim’s death.

In this Mitchell County case, the defendant was convicted of first-degree murder (based on the theories of (a) malice, premeditation and deliberation; (b) felony murder; and (c) torture), possession of a firearm by a convicted felon, conspiracy to commit first-degree murder, and first-degree kidnapping for his role in the death of the victim after several days of subjecting the victim to physical abuse and death threats, interspersed with the defendant’s (and the victim’s) use of methamphetamine.

Apparently believing that the victim, an addict to whom the defendant supplied methamphetamine, had informed law enforcement officers about the defendant’s drug trafficking, the defendant began to threaten and assault the victim, firing pistol rounds near his feet, striking him, putting him in a chokehold, threatening to kill him, and asking others, in the victim’s presence, if the victim should live or die. After smoking methamphetamine with the victim and others, the defendant told the victim that people from Georgia had arrived “to take care of” him, took him outside of a house where a laser beam was focused on him, and asked him if he was ready to die. When the victim attempted to run away, the defendant tackled him and dragged him back toward the house. The defendant then used his cell phone to record the victim pleading for his life. Over the next two days, the group used more methamphetamine and the defendant continued to threaten to kill the victim, to physically abuse him, to prevent him from leaving – at one point binding the victim’s hands with duct tape -- and to film him confessing to various acts. On the third day, the defendant shot the victim in the left shin and obtained a telephone cord to “make [the victim] hang himself.” The victim’s face was turning blue when the cord broke and he fell to the ground. The defendant eventually threw the victim into the yard, telling others on the scene that they could either “get involved or [they] could be next.” The defendant ordered others to hit the victim with a large rock. The defendant then ordered his girlfriend to shoot the victim or he was “gonna hurt [them] all.” The woman shot the victim once in the side of the head, killing him. The defendant then told others to help him dispose of the victim’s body.

(1) The defendant argued on appeal that the trial court erred by denying his request for a jury instruction on voluntary intoxication, asserting that his consumption of methamphetamine defeated his ability to form the specific intent necessary to support first-degree murder based on malice, premeditation and deliberation and the felony-murder rule and first-degree kidnapping. Noting that to be entitled to such an instruction, the defendant must produce substantial evidence that he was so intoxicated he could not inform a deliberate and premeditated intent to kill, the Court of Appeals held that the defendant did not satisfy this requirement. Testimony regarding defendant’s consumption of methamphetamine and his girlfriend’s testimony that he was “wigging” -- meaning that he believed things that were not present were in fact present -- were not enough.

The court reasoned that the defendant’s actions showed that he intended to kill the victim. He brandished a gun, saying he “smelled death.” He wondered out loud about what he would do with the witnesses if he killed the victim, ordered others to hit the seriously-injured victim with a large rock, told his girlfriend to shoot the victim, orchestrated the disposal of the victim’s body, kept a bullet he used to shoot the victim in the leg as a trophy, fled to Georgia after the killing, told his family what he did, and showed videos he recorded of the victim.

The Court also found ample evidence of defendant’s specific intent to kill to support his conviction for felony murder based on first-degree kidnapping. His actions showed his specific intent to unlawfully restrain or confine the victim over successive days, stating he was doing this in retribution for the victim’s alleged snitching. The defendant bound the victim’s hands behind his back, stopped the victim when he tried to run away, told the victim he would be freed if the victim killed his own mother, threatened to kill the victim by making him inject methamphetamine combined with poison, and arranged an attempted hanging of the victim.

(2) The Court of Appeals rejected the defendant’s argument that the trial court erred by failing to dismiss the charge of first-degree murder based on torture. The defendant argued that because the victim died from the gunshot delivered by defendant’s girlfriend, torture was not a proximate cause of his death. The Court of Appeals reasoned that the torture of the victim included defendant’s conduct over the days when the victim was detained, humiliated, beaten, and tortured. The torture included all of the abuse the defendant delivered during that time, including the defendant ordering his girlfriend, under threats to her and her families’ lives, to shoot and kill the victim.

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.

In this Mecklenburg County case, the Supreme Court modified and affirmed the Court of Appeals majority opinion that held defendant was not entitled to an instruction on second-degree murder as a lesser included offense while on trial for first-degree murder based on the felony-murder rule. 

On Father’s Day in 2017, defendant and an associate arranged to sell a cellphone to a man through the LetGo app. However, during the meeting to sell the phone, the deal went wrong and defendant’s associate shot the buyer. Defendant came to trial for attempted robbery with a dangerous weapon, first-degree murder under the felony murder theory, and conspiracy to commit robbery with his associate. The trial court denied defendant’s request for an instruction on second-degree murder as a lesser-included offense. Defendant was subsequently convicted of first-degree murder and attempted robbery, but not the conspiracy charge. The Court of Appeals majority found no error, applying “the second part of the test” from State v. Gwynn, 362 N.C. 334 (2008), to conclude “defendant was not entitled to a second-degree murder instruction because ‘there [was] no evidence in the record from which a rational juror could find [d]efendant guilty of second-degree murder and not guilty of felony murder.’” Slip Op. at 6. 

Taking up the appeal, the Supreme Court explained that defendant was only entitled to an instruction on lesser-included offenses if “(1) the evidence supporting the underlying felony is ‘in conflict,’ and (2) the evidence would support a lesser-included offense of first-degree murder.” Id. at 9. The Court examined the elements of attempted robbery and found supporting evidence, while rejecting the three issues raised by defendant that attempted to show the evidence was “in conflict.” Id. at 15. Applying the first part of the test from Gwynn, the Court determined that there was no conflict in the evidence supporting the underlying attempted robbery felony. Modifying the Court of Appeals majority’s analysis, the Court explained that “[b]ecause there was not a conflict in the evidence, we need not proceed to the next step of the Gwynnanalysis to consider whether the evidence would support a lesser-included offense of first-degree murder.” Id. at 17. 

Justice Earls, joined by Justice Riggs, dissented and would have found the evidence was “in conflict,” justifying an instruction on second-degree murder under the Gwynn analysis. Id. at 18. 

State v. Steen, 376 N.C. 469 (Dec. 18, 2020)

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.

In this Guilford County case, defendant appealed his convictions for first-degree murder based on felony murder, armed robbery, and possession of a stolen vehicle, arguing error in (1) denying his motion to dismiss the armed robbery charge and (2) not instructing the jury that self-defense could justify felony murder based on armed robbery. The Court of Appeals found no error. 

In August of 2018, defendant was staying at the apartment of a female friend when a series of phone calls from another man woke him up. Defendant went to the parking lot to confront the other man (the eventual murder victim), and defendant testified that the man threatened to kill him. At that point, defendant shot the victim four times, then after a few minutes, stole the victim’s car. The victim’s car was found abandoned in a field a day later. Defendant was indicted for first-degree murder based on felony murder, with the underlying felony being armed robbery. Defendant moved to dismiss the murder and robbery charges, arguing there was insufficient evidence the shooting and taking of the vehicle occurred in a continuous transaction. The trial court denied the motion. 

Taking up (1), the Court of Appeals noted that temporal order of the felony and the killing does not matter for a felony murder charge, as long as they are a continuous transaction. Here, the time period between the shooting and defendant taking the victim’s car was short, only “a few minutes” after the shots. Slip Op. at 6. The court also noted that “our Supreme Court has repeatedly rejected arguments a defendant must have intended to commit armed robbery at the time he killed the victim in order for the exchange to be a continuous transaction.” Id. at 7-8. Here, evidence supported the finding of a continuous transaction, and whether defendant initially intended to steal the car was immaterial. 

Moving to (2), the court pointed to precedent that self-defense is not a defense for felony murder, but it can be a defense to the underlying felony. However, the court explained that “[b]ased on our precedents, self-defense is inapplicable to armed robbery[,]” and because armed robbery was the underlying felony in this case, defendant was not entitled to a jury instruction on self-defense. Id. at 11.  

In this Brunswick County case, defendant appealed denial of his motion to dismiss the murder charge against him, arguing that it represented double jeopardy. The Court of Appeals granted certiorari to review defendant’s interlocutory appeal, and affirmed the trial court’s denial of the motion.

In 1997, the fifteen-month-old child of defendant’s girlfriend was taken to the emergency room with severe injuries. A pediatrician who treated the child determined he had Battered Child Syndrome and life-altering brain injuries that would prevent the child from ever living or functioning on his own. One year later, defendant entered an Alford plea to four counts of felony child abuse; defendant completed his sentence in 2008. The child lived in long-term care facility until 2018 when he passed away, allegedly from complications related to his injuries. The State brought charges for first-degree murder against defendant after the 2018 death of the child.

Taking up the double jeopardy argument, the court explained that under the same-elements test from Blockburger v. United States, 284 U.S. 299 (1932), offenses for the same conduct are considered the same unless “each offense contains an element not contained in the other.” Slip Op. at 5, quoting United States v. Dixon, 509 U.S. 688, 696 (1993). The court noted that the charges against defendant for felony child abuse and first-degree murder would normally fail the Blockburger test. However, the court applied the exception found in Diaz v. United States, 223 U.S. 442 (1912), where “a defendant subsequently may be prosecuted for a separate offense if a requisite element for that offense was not an element of the offense charged during the defendant’s prior prosecution.” Slip Op. at 8, citing Diaz. Because the necessary element of the child’s death did not occur until 2018, defendant could not have been prosecuted for the murder in 1998. The court rejected defendant’s arguments to expand the scope of North Carolina’s double jeopardy protection beyond applicable precedent and to apply substantive due process to overturn the denial of his motion.

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.

In this Guilford County case, defendant appealed his conviction for second-degree murder, arguing error in failure to provide a jury instruction on voluntary manslaughter. The Court of Appeals found no error. 

Based on texts and cellphone evidence admitted at trial, defendant arranged to meet with the victim, a gay man, for a sexual encounter on June 9, 2017. The next morning, the Greensboro Fire Department found the victim’s car burned to the frame, with the skeletal remains of the victim inside the trunk. An autopsy determined the victim died of homicidal violence of undetermined means, and that he was most likely dead before being burned. A search of the apartment where defendant sometimes lived with his girlfriend found a missing 4’ x 4’ patch of carpet and blood stains matching the victim’s DNA. At trial defendant requested that the jury be instructed on the lesser-included offense of voluntary manslaughter, but the trial court denied this request, and noted defendant’s objection to the ruling to preserve appellate review.

The Court of Appeals found no evidence in the record to support the argument that defendant acted “in the heat of passion” justifying a voluntary manslaughter instruction. Defendant offered a theory that involved the victim’s HIV-positive status and the possibility of defendant becoming enraged when he discovered this after sexual activity. However, the court explained this theory was “pure speculation” and the record contained no evidence that defendant’s passion was “sufficiently provoked.” Slip Op. at 11. Because no evidence supported the required element of heat of passion to justify a voluntary manslaughter instruction, the court found no error.  

The court also found the evidence admitted supported a finding of implicit malice for second degree murder, referencing State v. Rick, 126 N.C. App. 612 (1997), for the idea that “implicit malice can be inferred by the nature of the crime and the circumstances of [the victim’s] death.” Slip Op. at 13. 

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 this Wake County case, the Supreme Court affirmed the Court of Appeals decision granting defendant a new trial because the trial court declined to provide his requested jury instruction on involuntary manslaughter.

In 2018, defendant met his wife at a motel in Raleigh known for drug use and illegal activity; both defendant and his wife were known to be heavy drug users, and defendant’s wife had just been released from the hospital after an overdose that resulted in an injury to the back of her head. After a night of apparent drug use, defendant fled the motel for Wilmington, and defendant’s wife was found dead in the room they occupied. An autopsy found blunt force trauma to her face, head, neck, and extremities, missing and broken teeth, atherosclerosis of her heart, and cocaine metabolites and fentanyl in her system. Defendant conceded that he assaulted his wife during closing arguments. Defense counsel requested jury instructions on voluntary and involuntary manslaughter, including involuntary manslaughter under a theory of negligent omission, arguing that the victim may have died from defendant’s failure to render or obtain aid for her after an overdose. The trial court did not provide instructions on either voluntary or involuntary manslaughter, over defense counsel’s objections.

On appeal, the Supreme Court considered the issues raised by the Court of Appeals dissent, (1) whether the trial court committed error by failing to provide an instruction on involuntary manslaughter, and (2) did any error represent prejudice “in light of the jury’s finding that defendant’s offense was ‘especially heinous, atrocious, or cruel.’” Slip Op. at 15. The court found that (1) the trial court erred because a juror could conclude “defendant had acted with culpable negligence in assaulting his wife and leaving her behind while she suffered a drug overdose or heart attack that was at least partially exacerbated by his actions, but that it was done without malice.” Id. at 21. Exploring (2), the court explained “where a jury convicts a criminal defendant of second-degree murder in the absence of an instruction on a lesser included offense, appellate courts are not permitted to infer that there is no reasonable possibility that the jury would have convicted the defendant of the lesser included offense on the basis of that conviction.” Id. at 22, citing State v. Thacker, 281 N.C. 447 (1972). The court did not find the “especially heinous, atrocious, or cruel” aggravating factor dispositive, as it noted “finding that a criminal defendant committed a homicide offense in an especially heinous, atrocious, or cruel way does not require a finding that he acted with malice in bringing about his victim’s death.” Id. at 24. Instead, the court found prejudicial error in the lack of involuntary manslaughter instruction.

Justice Berger, joined by Chief Justice Newby and Justice Barringer, dissented and would have upheld defendant’s conviction for second-degree murder. Id. at 27.

The defendant lived in a trailer home with her boyfriend. In January 2015, the boyfriend’s three-year-old nephew came to stay with the couple for several days. The defendant would care for the child while the boyfriend and other nearby family members were at work. On a particular day, the defendant took four tablets of Xanax, in excess of the recommend three tablets a day. The boyfriend left for work, and the defendant checked on the child. The defendant turned on a space heater in the living room and went to the bathroom to smoke a cigarette. When she returned to the living room, she noticed that there were sparks coming from either the heater or the electric outlet and that the sparks were already causing the couch to smoke.

In a failed attempt to stop the burning, the defendant smothered the fire with a blanket. The defendant testified that she did not immediately get the child out of the trailer because she thought she could put out the fire. The mobile home did not have any running water, and the defendant tried unsuccessfully to use the fire extinguisher. After yelling for help, a neighbor arrived and escorted the defendant out of the trailer home. As the events progressed, the defendant was asked several times if there was anyone else inside the home, and each time, the defendant responded that there wasn’t.

When the fire department arrived, the defendant again answered that there was no one in the home, which a firefighter in turn relayed to dispatch. By the time a family member arrived and insisted that the child was still in the home, the firefighter informed him that there was no longer any way to safely enter the home. Once the crews gained access to the home, they found the deceased child on the bedroom floor.

During the initial trial proceedings, the trial judge inadvertently mentioned that the defense attorneys were from the public defender’s office. The court then denied a motion to strike the entire jury venire. The court also denied the defendant’s motions to dismiss the charges for insufficient evidence. The defendant was convicted of involuntary manslaughter and orally provided notice of appeal.

(1) The defendant’s first argument on appeal was that the trial court erred in denying her motion to strike the jury venire, because it denied her right to a fair trial before an impartial jury. The Court of Appeals held that the single passing reference made under these facts did not warrant a new trial because the jury could not reasonably infer the trial court’s introduction of the parties to be an opinion on a factual issue in the case, the defendant’s guilt, nor the weight of the evidence or a witness’s credibility.

(2) The defendant next argued that her involuntary manslaughter conviction must be vacated because the State did not meet its burden of proving that the defendant’s criminally negligent actions proximately caused the child’s death. Noting (i) the defendant’s admission that she could have removed the child from the burning home when she exited, (ii) the defendant’s omissions to her neighbors and the firefighters regarding the child’s presence in the burning home, and (iii) the deceased child’s airway being coated with soot, the Court of Appeals held that there was substantial evidence in the record that the defendant’s culpably negligent acts and omissions proximately caused the child’s unintentional death and that the evidence was sufficient to send the case to the jury.

(3) The defendant’s final argument was that the short-form indictment charging her with involuntary manslaughter was fatally defective for lack of sufficient notice of involuntary manslaughter’s essential elements. In rejecting this assertion, the Court of Appeals noted that the constitutionality of the statutory short-form indictment at issue has previously been upheld by both the Court of Appeals and the state Supreme Court.

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.

State v. Cheeks, 377 N.C. 528 (June 11, 2021)

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 Wake County case, the Supreme Court affirmed the Court of Appeals decision granting defendant a new trial because the trial court declined to provide his requested jury instruction on involuntary manslaughter.

In 2018, defendant met his wife at a motel in Raleigh known for drug use and illegal activity; both defendant and his wife were known to be heavy drug users, and defendant’s wife had just been released from the hospital after an overdose that resulted in an injury to the back of her head. After a night of apparent drug use, defendant fled the motel for Wilmington, and defendant’s wife was found dead in the room they occupied. An autopsy found blunt force trauma to her face, head, neck, and extremities, missing and broken teeth, atherosclerosis of her heart, and cocaine metabolites and fentanyl in her system. Defendant conceded that he assaulted his wife during closing arguments. Defense counsel requested jury instructions on voluntary and involuntary manslaughter, including involuntary manslaughter under a theory of negligent omission, arguing that the victim may have died from defendant’s failure to render or obtain aid for her after an overdose. The trial court did not provide instructions on either voluntary or involuntary manslaughter, over defense counsel’s objections.

On appeal, the Supreme Court considered the issues raised by the Court of Appeals dissent, (1) whether the trial court committed error by failing to provide an instruction on involuntary manslaughter, and (2) did any error represent prejudice “in light of the jury’s finding that defendant’s offense was ‘especially heinous, atrocious, or cruel.’” Slip Op. at 15. The court found that (1) the trial court erred because a juror could conclude “defendant had acted with culpable negligence in assaulting his wife and leaving her behind while she suffered a drug overdose or heart attack that was at least partially exacerbated by his actions, but that it was done without malice.” Id. at 21. Exploring (2), the court explained “where a jury convicts a criminal defendant of second-degree murder in the absence of an instruction on a lesser included offense, appellate courts are not permitted to infer that there is no reasonable possibility that the jury would have convicted the defendant of the lesser included offense on the basis of that conviction.” Id. at 22, citing State v. Thacker, 281 N.C. 447 (1972). The court did not find the “especially heinous, atrocious, or cruel” aggravating factor dispositive, as it noted “finding that a criminal defendant committed a homicide offense in an especially heinous, atrocious, or cruel way does not require a finding that he acted with malice in bringing about his victim’s death.” Id. at 24. Instead, the court found prejudicial error in the lack of involuntary manslaughter instruction.

Justice Berger, joined by Chief Justice Newby and Justice Barringer, dissented and would have upheld defendant’s conviction for second-degree murder. Id. at 27.

In this New Hanover County case, defendant appealed after being found guilty of two counts of first-degree murder and three counts of attempted first-degree murder, arguing (1) the indictment for attempted first-degree murder failed to include an essential element of the offense, (2) error in denying his motion to dismiss one of the attempted murder charges, and (3) error in admitting evidence of past acts of violence and abuse against two former romantic partners. The Court of Appeals found no error.

In August of 2014, after defendant assaulted his girlfriend, a protective order was granted against him. On December 22, 2014, defendant tried to reconcile with his girlfriend, but she refused; the girlfriend went to the house of a friend and stayed with her for protection. Early the next morning, defendant tried to obtain a gun from an acquaintance, and when that failed, he purchased a gas can and filled it with gas. Using the gas can, defendant set fires at the front entrance and back door of the home where his girlfriend was staying. Five people were inside when defendant set the fires, and two were killed by the effects of the flames. Defendant was indicted for first-degree arson, two counts of first-degree murder, and three counts of attempted first-degree murder, and was convicted on all counts (the trial court arrested judgment on the arson charge).

Examining issue (1), the Court of Appeals explained that “with malice aforethought” was represented in the indictment by “the specific facts from which malice is shown, by ‘unlawfully, willfully, and feloniously . . . setting the residence occupied by the victim(s) on fire.’” Slip Op. at 10. Because the ultimate facts constituting each element of attempted first-degree murder were present in the indictment, the lack of “with malice” language did not render the indictment flawed.

Considering defendant’s argument (2), that he did not have specific intent to kill one of the victims because she was a family member visiting from Raleigh, the court found that the doctrine of transferred intent supported his conviction. Under the doctrine, “[t]he actor’s conduct toward the victim is ‘interpreted with reference to his intent and conduct towards his adversary[,]’ and criminal liability for the third party’s death is determined ‘as [if] the fatal act had caused the death of [the intended victim].’” Id. at 12, quoting State v. Locklear, 331 N.C. 239 (1992). Here defendant was attempting to kill his girlfriend, and the intent transferred to the other victims inside the home at the time he set the fires.

Considering (3) the admission of several prior acts of violence by defendant towards his girlfriend and another romantic partner, the court first determined the evidence was relevant under Rules of Evidence 401 and 402, and conducted an analysis under Rule 404(b), finding the evidence tended to show intent, motive, malice, premeditation, and deliberation. The court then looked for abuse of discretion by the trial court under the Rule 403 standard, finding that the admission of the relevant evidence did not represent error.

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.

In this Cumberland County case, defendant appealed his first-degree murder conviction, arguing error in failing to instruct the jury on (1) the affirmative defense of voluntary intoxication, and (2) the lesser-included offense of second-degree murder. The Court of Appeals disagreed, finding no error. 

Defendant’s wife was found dead in their home in February of 2021. Leading up to the discovery, defendant’s wife had expressed fears that he would shoot her, and told family and friends that defendant kept a handgun on the nightstand. The wife’s pastor and deacon from her church noticed bruises on her neck, and she admitted to them that they came from defendant. Early in the morning on the day defendant’s wife was found dead, defendant called his daughter to confess that he had killed her. At trial, an expert testified that the wife was shot ten times with a single-action revolver, which required the shooter to cock the hammer and pull the trigger each time it was fired. The revolver also held only six rounds, requiring a reload for the ten rounds fired into the wife’s body. Defendant testified at trial and claimed that his wife’s niece had shot her. At the charge conference, defense counsel requested a jury instruction on second-degree murder, but the trial court denied this request. Defendant did not request an instruction on voluntary intoxication.

Considering (1) defendant’s defense of voluntary intoxication, the Court of Appeals noted the standard of review was plain error, as “the trial court explicitly asked if Defendant wanted to include voluntary or involuntary intoxication instructions, to which his counsel declined.” Slip Op. at 4. The court could not find plain error, as defendant was a heavy drinker and testified that he had consumed a normal amount of alcohol for his tolerance, and “[i]n his own testimony, Defendant said he ‘got drunk’ after the killing because his wife was dead, indicating he was not already drunk during the killing.” Id. at 6. Additionally, he recalled the events of the day and night, and was clear-headed enough to attempt to hide the revolver before law enforcement arrived. 

Turning to (2), the court explained that a defendant is entitled to an instruction on second-degree murder “where the State’s evidence, if believed, is capable of conflicting reasonable inferences either that (1) the defendant premeditated/deliberated a specific intent to kill or, alternatively, (2) the defendant merely premeditated/deliberated an assault.” Id. at 9. Here, the court found only one possible conclusion, that “Defendant specifically intended to kill his wife.” Id. The court arrived at this conclusion based on the number of shots fired with a cumbersome weapon, the lack of defensive wounds, the history of defendant’s threats, and defendant’s history of physical abuse towards his wife. 

In this Randolph County case, defendant appealed his conviction for second-degree murder, arguing error in denying his motion to dismiss due to no direct evidence he shot the victim. The Court of Appeals found no error.

Defendant was indicted for first-degree murder for the killing of another dump truck driver from the dump site where defendant worked. The jury ultimately convicted defendant of second-degree murder. On appeal, defendant argued that no direct evidence supported the conviction, and the circumstantial evidence was not sufficient to support his conviction. The Court of Appeals disagreed, noting extensive circumstantial evidence that defendant knew and worked with the victim, was seen with the victim shortly before the killing, and defendant was found next to the truck containing the victim with a gun. The court explained “[t]he State was not required to produce an eyewitness to the shooting or physical evidence linking Defendant to the gun as Defendant implies, considering the other substantial evidence.” Slip Op. at 5.

In this Brunswick County case, defendant appealed denial of her motion to dismiss the murder charge against her, arguing that it represented double jeopardy. The Court of Appeals affirmed the trial court’s denial of the motion. The facts of this case are substantially similar to State v. Tripp, 2022-NCCOA-795, as the defendant in this case is the mother of the child that was abused, and the defendant in Tripp was her boyfriend at the time.

Following the same analysis as the opinion in Tripp, the court applied the same-elements test from Blockburger v. United States, 284 U.S. 299 (1932), and the exception for requisite elements of the crime found in Diaz v. United States, 223 U.S. 442 (1912), to establish the prosecution for murder was not double jeopardy under the felony murder theory. The court also noted “prosecution for first-degree murder theories such as premeditation and deliberation or torture satisfies the Blockburger test and does not violate [d]efendant’s constitutional right to be protected against double jeopardy.” Slip Op. at 10. The court dismissed defendant’s argument that due process protections prevented her prosecution so long after the events, noting the State could not bring charges for murder until the victim’s death.

In this Brunswick County case, defendant appealed denial of his motion to dismiss the murder charge against him, arguing that it represented double jeopardy. The Court of Appeals granted certiorari to review defendant’s interlocutory appeal, and affirmed the trial court’s denial of the motion.

In 1997, the fifteen-month-old child of defendant’s girlfriend was taken to the emergency room with severe injuries. A pediatrician who treated the child determined he had Battered Child Syndrome and life-altering brain injuries that would prevent the child from ever living or functioning on his own. One year later, defendant entered an Alford plea to four counts of felony child abuse; defendant completed his sentence in 2008. The child lived in long-term care facility until 2018 when he passed away, allegedly from complications related to his injuries. The State brought charges for first-degree murder against defendant after the 2018 death of the child.

Taking up the double jeopardy argument, the court explained that under the same-elements test from Blockburger v. United States, 284 U.S. 299 (1932), offenses for the same conduct are considered the same unless “each offense contains an element not contained in the other.” Slip Op. at 5, quoting United States v. Dixon, 509 U.S. 688, 696 (1993). The court noted that the charges against defendant for felony child abuse and first-degree murder would normally fail the Blockburger test. However, the court applied the exception found in Diaz v. United States, 223 U.S. 442 (1912), where “a defendant subsequently may be prosecuted for a separate offense if a requisite element for that offense was not an element of the offense charged during the defendant’s prior prosecution.” Slip Op. at 8, citing Diaz. Because the necessary element of the child’s death did not occur until 2018, defendant could not have been prosecuted for the murder in 1998. The court rejected defendant’s arguments to expand the scope of North Carolina’s double jeopardy protection beyond applicable precedent and to apply substantive due process to overturn the denial of his motion.

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.

In this Carteret County case, defendant appealed his conviction for first-degree murder, arguing (1) insufficient evidence, (2) error in admitting numerous gruesome photos of the body, and (3) error in allowing several statements by the prosecutor during closing argument. The Court of Appeals found no prejudicial error. 

At trial, defendant admitted through counsel that he shot the victim, the mother of his son, on August 14, 2018. Evidence showed that earlier that day, the two were seen fighting in the front yard of their residence, and later the victim was seen walking down the road. Defendant eventually picked up the victim and brought her back to their home. Sometime after the victim and defendant were back home, defendant shot and killed the victim, wrapped her in a tarp, then buried her body at a burn pit in his grandfather’s back yard. Defendant also called the victim’s mother, who lived with them, to tell her juice had been spilled on her sheets and he had to launder them. After burying the victim, defendant told others that the victim had left him, and put up flyers trying to find her. Eventually defendant was charged with the murder; while in custody, he had conversations with another inmate about how he “snapped” and shot the victim after she described performing sex acts with other men, and where he hid the body. 

Taking up (1), the Court of Appeals explained that the State argued first-degree murder under two theories, premeditation and deliberation, and lying in wait. The court looked for sufficient evidence to support premeditation and deliberation first, noting that defendant’s actions before and after the murder were relevant. Although defendant and the victim fought before the killing, the court did not find evidence to support the idea that defendant was acting under “violent passion,” and defendant seemed to deliberately choose a small-caliber handgun that was not his usual weapon for the murder. Slip Op. at 10-11. Additionally, the court concluded that “Defendant’s actions following the murder demonstrate a planned strategy to pretend Defendant had nothing to do with the murder and to avoid detection as the perpetrator.” Id. at 12. The court dispensed with defendant’s argument that it should not consider acts after the killing as evidence of premeditation, explaining the case cited by defendant, State v. Steele, 190 N.C. 506 (1925), “holds flight, and flight alone, is not evidence of premeditation and deliberation.” Slip Op. at 14. Because the court found sufficient evidence to support first-degree murder under premeditation and deliberation, it did not examine the lying in wait theory. 

Turning to (2), the court explained that under Rule of Evidence 403, photos of a body and its location when found are competent evidence, but when repetitive, gruesome and gory photos are presented to the jury simply to arouse the passion of the jury, they may have a prejudicial effect, such as in State v. Hennis, 323 N.C. 279 (1988). Here, the court did not find prejudice from the photographs, as “[t]he photographs presented at trial depicted the culmination of the investigation to locate [the victim’s] body and provided evidence of premeditation and deliberation.” Slip Op. at 20. 

The court found error in (3), but not prejudicial error, when examining the prosecutor’s closing argument. First, the prosecutor mentioned the punishment for second-degree murder; the trial court sustained defendant’s objection but did not give a curative instruction. The court found no prejudice as previous instructions directed the jury to disregard questions to sustained objections, and not to acquit or convict based on the severity of punishment. Second, the prosecutor mentioned that defendant did not have to testify; the trial court initially sustained the objection but then overruled it to allow the prosecutor to make an argument about defendant not calling witnesses. The court found that this error was harmless beyond a reasonable doubt due to “the evidence of Defendant’s motive for planning to kill [the victim], his confession, his use of the .22 caliber handgun, and his acts subsequent to the killing.” Id. at 25. Third, while the prosecutor misstated the applicable precedent regarding provocation, the court explained that a proper instruction by the trial court to the jury on “the required state of mind for premeditation and deliberation” cured the misstatement. Id. at 27. Finally, the court concluded that the prosecutor’s statements referencing defendant’s admission that he killed the victim were “directed at what was and was not at issue for the jurors to decide rather than an improper statement regarding Defendant’s failure to plead guilty.” Id. at 28. 

In this Buncombe County case, defendant appealed his conviction for first-degree murder, arguing five separate errors by the trial court and contending the cumulative prejudice of those errors entitled him to a new trial. The Court of Appeals found no error. 

In June of 2017, the victim was shot in the parking lot of an apartment complex in Asheville by a man in a black hoodie. At the time of the shooting, defendant was sixteen years of age. A witness from the scene later identified defendant as the man in the hoodie, picking his photograph out of a selection of potential subjects. The witness also gave a written statement of the events to detectives. Another witness, defendant’s cousin, also identified him as the shooter during a recorded interview with detectives. At trial, both witnesses were called to testify. Defendant’s cousin testified she was unable to recall the events around the shooting, and the prosecutor moved to have the recording of her interview played for the jury under Rule of Evidence 803(5). Over defense counsel’s objection, the trial court permitted playing the video. The detectives also testified regarding the interviews of both witnesses. Defendant was subsequently convicted and appealed. 

Defendant argued the first error was a failure to instruct the jury on the lesser-included offense of second-degree murder. The Court of Appeals disagreed, explaining that the prosecution had proven each element of first-degree murder, and no evidence was admitted negating any element. Walking through defendant’s points, the court noted (1) despite defendant’s claim that he used marijuana earlier in the day of the shooting, voluntary intoxication only negated specific intent if the defendant was intoxicated at the time the crime was committed; (2) no case law supported the argument that defendant’s age (16 years old) negated the elements of first-degree murder; (3) provocation by a third party could not excuse defendant’s actions towards the victim; and (4) defendant’s statement to a witness that he was “angry” at the victim but only intended to fight him did not prevent a finding of premeditation and deliberation where no evidence was admitted to show his anger reached a level “such as to disturb the faculties and reason.” Slip Op. at 19. 

The second error alleged by defendant was a special jury instruction requested by defense counsel on intent, premeditation, and deliberation for adolescents. The court explained that while defense counsel’s requested instruction might be supported by scientific research, no evidence was admitted on adolescent brain function, and “[d]efendant’s age is not considered nor contemplated in the analysis of premeditation and deliberation, therefore, this instruction would be incorrect and likely to mislead the jury.” Id. at 22. 

The third alleged error was playing the interview video and introducing the photo lineup identification provided by defendant’s cousin. Defendant argued she did not testify the events were fresh in her mind at the time of the recording, and the interview and lineup did not correctly reflect her knowledge of the shooting. The court disagreed with both arguments, explaining that the trial court found the recording was made two days after the shooting and concluded it was fresh in her memory. The court also explained that the witness did not disavow her statements, and provided a signature and initials on identification paperwork, justifying a finding that her testimony and identification were correct. Defendant also argued that admitting the interview and identification were improper under Rule of Evidence 403. The court disagreed, explaining that the interview was highly probative of defendant’s motive, outweighing the danger of unfair prejudice. 

Considering the fourth alleged error, that the identification evidence from the first witness was tainted by impermissibly suggestive interview techniques by the detectives, the court noted that defendant did not present arguments as to why the procedures were unnecessarily suggestive. Although defendant did not properly argue the first step of the two-step determination process for impermissibly suggestive techniques, the court addressed the second step of the analysis anyway, applying the five-factor test from State v. Grimes, 309 N.C. 606 (1983), to determine there was no error in admitting the witness’s identification of defendant. Slip Op. at 31. 

Finally, the court considered defendant’s argument that it was error to permit the detectives to offer improper lay opinions about the witnesses’ “forthcoming” and “unequivocal” participation in identifying defendant. Id. at 32. Defendant failed to object at trial, so the court applied a plain error standard to the review. The court did not believe that the statements were comments on the witnesses’ credibility, but even assuming that admission was error, the court concluded that admission was not plain error due to the other evidence of guilt in the record. Because the court found no error in any of the five preceding arguments, the court found no cumulative prejudice justifying a new trial. 

Judge Murphy concurred, but concurred in result only for Parts II-E (Detective’s Statements) and II-F (Cumulative Prejudice). Id. at 35. 

In this Randolph County case,  the Court of Appeals upheld defendant’s conviction for solicitation to commit first-degree murder, finding no prejudicial error by the trial court.

In 2018, defendant, a high school student, confessed to his girlfriend that he had homicidal thoughts towards several of his fellow students, and attempted to recruit his girlfriend to help him act on them. His girlfriend showed the messages they exchanged to her mother and the school resource officer, leading to further investigation that found defendant had a cache of guns and knives, as well as a detailed list of persons he wished to kill and methods he would use. When the matter came to trial, the state offered testimony from 11 of the 13 persons on the kill list, and during closing arguments made reference to the “current events” that were presumably mass shootings at high schools. Defendant was subsequently convicted in 2020.

Reviewing the appeal, the court first considered (a) defendant’s motion to dismiss for insufficient evidence, reviewing whether defendant solicited his girlfriend for the crime. The court found sufficient evidence of solicitation, explaining that solicitation is an “attempt to conspire,” and the offense does not require fully communicating the details of the plan. Instead, once defendant proposed the killings he had planned to his girlfriend, and attempted to recruit her to assist, the offense was complete, despite the fact that he did not fully share his detailed plans. Slip Op. at 12-13.

The court next considered (b), dismissing defendant’s argument that the indictment fatally varied from the jury instruction; the court found that this was actually an attempt to present an instructional error “within the Trojan horse of a fatal variance.” Id. at 15. Considering (c), the court disagreed with defendant’s allegation that Rules of Evidence 401 and 402 barred admission of defendant’s drawings and notes of the Joker and weapons, and testimony from 11 of the potential victims. The drawings were relevant to show defendant’s state of mind and evaluate the nature of the potential crime, and the testimony was relevant to show the potential victims were real people and that defendant had the specific intent to commit the crime. Id. at 17-18. The court also considered (d) whether Rule of Evidence 403 barred admission of this evidence as prejudicial, finding no abuse of discretion as “the evidence served a probative function arguably above and beyond inflaming [the jury’s passions].” Id. at 20.

Considering the final issue (e), whether the trial court should have intervened ex mero moto during the state’s closing argument, the court found error but not prejudicial error. The court found error in the state’s closing argument when the prosecutor “appealed to the jury’s sympathies by describing the nature of the Joker and insinuating that [d]efendant was planning a mass shooting.” Id. at 25. The court presumed that these statements were intended to suggest that defendant’s conviction would assist in preventing another mass shooting, but noted that they did not rise to the level of prejudicial error due to the other factual details in the argument, and the “multiple items of physical evidence and segments of testimony evidencing [d]efendant’s intent.” Id. at 28.

In this Brunswick County case, defendant appealed denial of her motion to dismiss the murder charge against her, arguing that it represented double jeopardy. The Court of Appeals affirmed the trial court’s denial of the motion. The facts of this case are substantially similar to State v. Tripp, 2022-NCCOA-795, as the defendant in this case is the mother of the child that was abused, and the defendant in Tripp was her boyfriend at the time.

Following the same analysis as the opinion in Tripp, the court applied the same-elements test from Blockburger v. United States, 284 U.S. 299 (1932), and the exception for requisite elements of the crime found in Diaz v. United States, 223 U.S. 442 (1912), to establish the prosecution for murder was not double jeopardy under the felony murder theory. The court also noted “prosecution for first-degree murder theories such as premeditation and deliberation or torture satisfies the Blockburger test and does not violate [d]efendant’s constitutional right to be protected against double jeopardy.” Slip Op. at 10. The court dismissed defendant’s argument that due process protections prevented her prosecution so long after the events, noting the State could not bring charges for murder until the victim’s death.

In this Guilford County case, defendant appealed his convictions for first-degree murder and possession of a firearm by a felon, arguing the trial court erred by (1) denying his motions to dismiss, (2) giving an improper jury instruction on deliberation, and (3) failing to give defendant’s requested “stand your ground” instruction. The Court of Appeals found no error.

In 2017, defendant was at a house drinking alcohol with two other men when an argument broke out between defendant and the eventual victim. The victim yelled in defendant’s face and spit on him, threatening to kill defendant the next time he saw him. Notably, the victim’s threat was to kill defendant at a later time, and the victim stated he would not do so in the house where they were drinking. After the victim yelled in defendant’s face, defendant drew a pistol and shot the victim six times; defendant fled the scene and did not turn himself in until 18 days later.

Reviewing the trial court’s denial of defendant’s motions to dismiss, the court noted that “evidence of a verbal altercation does not serve to negate a charge of first-degree murder when ‘there was other evidence sufficient to support the jury’s finding of both deliberation and premeditation.’” Slip Op. at 8, quoting State v. Watson, 338 N.C. 168, 178 (1994). The court found such evidence in the instant case, with defendant’s prior history of quarrels with the victim, the number of gunshots, defendant’s fleeing the scene and remaining on the run for 18 days, and with defendant’s statements to his girlfriend regarding his intention to deny the charges.

The court then turned to the disputed jury instructions, first explaining that defendant’s request for an additional explanation on deliberation beyond that contained in Pattern Jury Instruction 206.1 was based on a dissenting opinion in State v. Patterson, 288 N.C. 553 (1975) which carried no force of law, and the instruction given contained adequate explanation of the meaning of “deliberation” for first-degree murder. Slip Op. at 11. The court next considered the “stand your ground” instruction, comparing the trial court’s instruction on self-defense to the version offered by defendant. Looking to State v. Benner, 380 N.C. 621 (2022), the court found that “the use of deadly force cannot be excessive and must still be proportional even when the defendant has no duty to retreat and is entitled to stand his ground.” Slip Op. at 14. The court also noted that the “stand your ground” statute requires proportionality in defendant’s situation, explaining “[d]efendant could use deadly force against the victim under [N.C.G.S. §] 14-51.3(a) only if it was necessary to prevent imminent death or great bodily harm, i.e., if it was proportional.” Id. at 16-17. Finally, the court determined that even if the trial court erred in failing to give the instruction, it was not prejudicial, as overwhelming evidence in the record showed that defendant was not under threat of imminent harm, noting “[l]ethal force is not a proportional response to being spit on.” Id. at 17.

The defendant was indicted for seven crimes arising from a domestic violence incident. The defendant severely beat his wife, resulting in her being hospitalized for six days where she was treated for extensive swelling and bruising to face and neck, fractures to rib bones and bones around her eyes, strangulation, contusions, and kidney failure induced by toxins released from skeletal muscle destruction. Following trial, the defendant was convicted of six of the seven charges and was sentenced to four consecutive sentences totaling 578 to 730 months. The defendant appealed.

(1) On appeal, the defendant first argued that the trial court committed plain error in failing to instruct the jury on the lesser-included offense of attempted voluntary manslaughter because the evidence showed that the defendant lacked the requisite intent for attempted first-degree murder. The defendant contended that the State failed to conclusively prove he had the requisite intent of premeditation and deliberation to commit first-degree murder because evidence at trial showed that he assaulted his wife spontaneously in response to adequate provocation. In rejecting this argument, the Court of Appeals noted that there was overwhelming evidence at trial supporting premeditation and deliberation. Although the wife admitted during trial that she stabbed the defendant in the chest with a knife, the defendant’s testimony confirmed that the subsequent assault lasted multiple hours, and the defendant testified that he “knew what he was doing” and agreed that he “could have left at any time.” Slip op. at ¶ 27. The Court thus held that this the defendant’s testimony did not warrant an instruction on attempted voluntary manslaughter.

(2) The defendant next argued that the trial court did not ensure the defendant had knowingly consented before allowing defense counsel to concede the defendant’s guilt to multiple charges. The defendant contended that statements made by his defense counsel during opening and closing statements constituted an implied admission of his guilt because counsel (i) told the jury that the defendant “beat” his wife and (ii) argued only against the charge of first-degree murder and did not mention the defendant’s other charges in closing argument. The Court of Appeals held that defense counsel’s reference to the defendant having beaten his wife did not amount to a Harbison error because the defendant chose to testify on his own behalf, under oath, with full awareness that he did not have to testify. The defendant then repeatedly admitted that he beat his wife. The Court concluded that defense counsel repeated the defendant’s own testimony, then urged the jury to evaluate the truth in defendant’s words, and that defense counsel’s statements could logically be interpreted as a recitation of facts presented at trial.

(3) The defendant’s final argument was that the trial court erred by denying his motion to dismiss the charge of first-degree kidnapping because the State failed to introduce sufficient evidence of confinement separate from that which was inherent in the commission of the assaults on his wife. In rejecting this argument, the Court reasoned that the State presented evidence that the defendant confined his wife to her apartment through actions apart from confinement inherent in the many instances of assault, and the evidence allowed a reasonable inference that the defendant chose to wholly confine his wife to her apartment to prevent her from seeking aid.

In this Burke County case, the defendant appealed after he was found guilty by a jury of first-degree murder. The case arose out of an altercation between the defendant and his apartment neighbor, Hubert Hunter, Jr. After Hunter was found dead in his own apartment, a maintenance worker found a plastic bag containing bloodstained clothing and a kitchen knife in a dumpster behind the apartment building. DNA on the knife matched the victim and DNA on the clothing matched the defendant. A medical examination of the victim showed that he had three stabbing and slashing wounds to his neck, one of which was deep enough to fracture his spine, as well as hemorrhaging of blood vessels indicating that the ultimate cause of death was strangulation. Law enforcement interviewed the defendant multiple times. He first denied fighting with Hunter, but later said that he had gone to Hunter’s apartment to collect $3 Hunter owed him, which led to a fight in which the victim “pulled a knife.” The defendant admitted to choking the victim as they wrestled in an attempt to make him pass out and stop fighting, but said that he was struggling in self-defense after the victim grabbed the knife and that any stabbing was incidental. The defendant also claimed that he himself passed out during the struggle. The defendant was convicted of first-degree murder and appealed. 

(1) The defendant first argued that the trial court erred by denying his motion to dismiss based on insufficient evidence of premeditation and deliberation. Viewing the evidence in the light most favorable to the State, the Court of Appeals concluded that the trial court did not err in dismissing the motion. The evidence showed the defendant threatened the victim, beat him severely, did not seek medical assistance after the fight, and attempted to cover up the killing by disposing of his bloodied clothes and the knife. The Court rejected the defendant’s contention that his own black out undermined the State’s theory of premeditation and deliberation and instead showed he acted in a state of passion; other evidence sufficed to submit the issue to the jury, and it was for them to weigh the evidence presented.

(2) The defendant next argued that the trial court committed plain error by failing to instruct the jury on the defense of automatism in light of the defendant’s statement that he blacked out during the altercation with the victim. The Court of Appeals disagreed, noting that the only evidence of the defendant blacking out came from his own self-serving statements, which, moreover, were contradicted by his other statements and general ability to recall the details of the fight. Because the defendant’s statements about blacking out were insufficient to satisfy a reasonable jury that he lacked consciousness, the trial court did not plainly err by failing to give the instruction.

(3) Next, the defendant argued that the trial court erred by failing to intervene ex mero motu in the State’s questioning of prospective jurors. The State’s questions included hypothetical questions like “If you were in fear for your life and had a weapon, would you defend yourself or would you run away?” The Court of Appeals concluded that the trial court did not abuse its discretion in failing to intervene because the State’s questions did not stake jurors out by asking them to consider specific circumstances and forecast their ultimate verdict.

(4) Finally, the defendant argued that the trial court erred by not intervening ex mero motu during closing arguments when the State claimed that the defendant, not the victim, handled the knife, thereby misleading the jury on the central issue of self-defense. The Court of Appeals disagreed, concluding that trial court did not err when the State’s arguments drew reasonable inferences from the evidence and did not rely on evidence outside the trial record.

Having rejected each of the defendant’s arguments, the Court concluded that the defendant’s trial was free from error.

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.

In this Cumberland County case, defendant appealed his conviction for first-degree murder by torture, arguing error in (1) denying his motion to dismiss for failure to prove proximate cause, and (2) admitting testimony from two experts for the State. The Court of Appeals found no error. 

In November of 2015, the victim, defendant’s 3-year-old daughter, was admitted to the hospital unconscious and with a body temperature of only 88 degrees. The care team at the hospital observed injuries that were indicative of physical and sexual abuse, including tearing of the victim’s anus and bruising on her labia and inner thighs, as well as contusions and hemorrhaging under the skin on her limbs and torso. The victim ultimately died at the hospital, and the cause of death was identified as “acute and organizing bilateral bronchopneumonia in the setting of malnutrition, neglect and sexual abuse.” Slip Op. at 5. At trial, the State called the emergency physician who treated the victim, as well as two other experts, the medical examiner who performed the autopsy and a developmental and forensic pediatrician. Defendant did not object to their testimony at trial. Defendant moved to dismiss the charges at the close of State’s evidence, arguing insufficient evidence to show that he withheld food or hydration to proximately cause the victim’s death. The trial court denied the motion, and defendant was subsequently convicted.  

Taking up (1), the Court of Appeals held that defendant’s conduct was torture sufficient to support the conviction. The court established that first-degree murder by torture does not require a showing of premeditation or specific intent to kill the victim, only a “course of conduct by one or more persons which intentionally inflicts grievous pain and suffering upon another for the purpose of punishment, persuasion, or sadistic pleasure.” Id. at 10, quoting State v. Anderson, 346 N.C. 158 (1997). Here extensive evidence in the record showed that the victim did not eat around defendant and lost weight when in his care. Evidence also showed that defendant would beat the victim for her lack of appetite, and defendant would withhold water from her as punishment. The court concluded that “[b]eating [the victim] with a belt, forcing her to exercise, withholding water, and sexually assaulting her” clearly constituted torture. Slip Op. at 11-12. The court then turned to proximate cause, explaining “[f]ar from being unfortunate and independent causes, [the victim’s] starvation and pneumonia are the ‘natural result’ of Defendant’s ‘criminal act[s]’ of violently and sexually abusing [the victim] . . . there was no break in the causal chain.” Id. at 15. Because the victim’s death was a reasonably foreseeable result of defendant’s actions when applying the standard of a “person of ordinary prudence,” the court concluded there was no error in denying defendant’s motion. Id. at 16. 

Looking to (2), the court applied a plain error standard as defendant did not object at trial to the testimony of either expert. Explaining that Rule of Evidence 702 governs expert testimony, the court first noted that it did not see error in the testimony of either expert. Presuming an error was committed, the court concluded the jury would likely have reached the same verdict without the challenged testimony due to the sheer weight of evidence against defendant. 

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 Mecklenburg County case, the Supreme Court reversed an unpublished Court of Appeals decision and affirmed the trial court’s sentencing of defendant at the Class B1 felony level for second-degree murder. 

In February of 2019, defendant went on trial for first-degree murder for shooting a man during a protest. During the jury charge conference, the trial court explained the three theories of malice applicable to the case: actual malice, condition of mind malice, and depraved-heart malice. The verdict form required the jury to identify which type of malice supported the verdict. When the jury returned a verdict of guilty for second-degree murder, all three types of malice were checked on the verdict form. At sentencing, defendant’s attorney argued that he should receive a Class B2 sentence, as depraved-heart malice was one of the three types of malice identified by the jury. The trial court disagreed, and sentenced defendant as Class B1. The Court of Appeals reversed this holding, determining the verdict was ambiguous and construing the ambiguity in favor of the defendant.

Reviewing defendant’s appeal, the Supreme Court found no ambiguity in the jury’s verdict. Explaining the applicable law under G.S. 14-17(b), the court noted that depraved-heart malice justified sentencing as Class B2, while the other two types of malice justified Class B1. Defendant argued that he should not be sentenced as Class B1 if there were facts supporting a Class B2 sentence. The court clarified the appropriate interpretation of the statute, holding that where “the jury’s verdict unambiguously supports a second-degree murder conviction based on actual malice or condition of mind malice, a Class B1 sentence is required, even when depraved-heart malice is also found.” Id. at 7. The language of the statute supported this conclusion, as “the statute plainly expresses that a person convicted of second-degree murder is only sentenced as a Class B2 felon where the malice necessary to prove the murder conviction is depraved-heart malice . . . this means that a Class B2 sentence is only appropriate where a second-degree murder conviction hinges on the jury’s finding of depraved-heart malice.” Id. at 11. The court explained that “[h]ere . . . depraved-heart malice is not necessary—or essential—to prove [defendant’s] conviction because the jury also found that [defendant] acted with the two other forms of malice.” Id. at 11-12. 

In this Guilford County case, defendant appealed his conviction for second-degree murder, arguing error in failure to provide a jury instruction on voluntary manslaughter. The Court of Appeals found no error. 

Based on texts and cellphone evidence admitted at trial, defendant arranged to meet with the victim, a gay man, for a sexual encounter on June 9, 2017. The next morning, the Greensboro Fire Department found the victim’s car burned to the frame, with the skeletal remains of the victim inside the trunk. An autopsy determined the victim died of homicidal violence of undetermined means, and that he was most likely dead before being burned. A search of the apartment where defendant sometimes lived with his girlfriend found a missing 4’ x 4’ patch of carpet and blood stains matching the victim’s DNA. At trial defendant requested that the jury be instructed on the lesser-included offense of voluntary manslaughter, but the trial court denied this request, and noted defendant’s objection to the ruling to preserve appellate review.

The Court of Appeals found no evidence in the record to support the argument that defendant acted “in the heat of passion” justifying a voluntary manslaughter instruction. Defendant offered a theory that involved the victim’s HIV-positive status and the possibility of defendant becoming enraged when he discovered this after sexual activity. However, the court explained this theory was “pure speculation” and the record contained no evidence that defendant’s passion was “sufficiently provoked.” Slip Op. at 11. Because no evidence supported the required element of heat of passion to justify a voluntary manslaughter instruction, the court found no error.  

The court also found the evidence admitted supported a finding of implicit malice for second degree murder, referencing State v. Rick, 126 N.C. App. 612 (1997), for the idea that “implicit malice can be inferred by the nature of the crime and the circumstances of [the victim’s] death.” Slip Op. at 13. 

In this Robeson County case, the defendant was found guilty after a jury trial of second-degree murder, aggravated felony death by vehicle, and other offenses based on a motor vehicle crash that resulted in the death of a passenger. On appeal, the defendant argued that the trial court erred by failing to dismiss the charge of second-degree murder based on insufficiency of the evidence on malice. The Court of Appeals disagreed, noting evidence that showed the defendant, who had a history of impaired driving convictions, drove after consuming alcohol, continued to consume alcohol while driving over several hours, had a BAC that may have been as high as 0.20, and drove recklessly by engaging the emergency break and falling asleep while driving. Viewing that evidence in the light most favorable to the State, the Court concluded that there was sufficient evidence to submit the charge of second-degree murder to the jury.

The defendant also argued that the trial court erred by denying his motion for appropriate relief (MAR) alleging that a witness had recanted his trial testimony indicating that the defendant was the driver of the vehicle. That witness testified at an evidentiary hearing on the MAR that his trial testimony was false, but later asserted his Fifth Amendment privilege against self-incrimination on cross-examination, and then eventually failed to show up at all for a final hearing on the motion. The trial court found that the witness waived his privilege by testifying at the first hearing, but then substantially prejudiced the State’s ability to present its argument by failing to reappear and undergo cross-examination. The Court of Appeals concluded that the trial court properly applied the rule from State v. Ray, 336 N.C. 463 (1994), by striking the witness’s direct evidence in its entirety. Without that testimony, the defendant failed to meet his burden of proof, and the trial court thus properly denied the motion.

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 Craven County case, defendant was convicted of possession of a firearm by a felon, resisting a public officer, injury to personal property, and going armed to the terror of the public for defendant’s actions in an apartment complex parking lot. On appeal, the Court of Appeals determined that the trial court lacked jurisdiction for the charge of going armed to the terror of the public because the indictment did not allege the acts supporting the conviction occurred on a public highway.

The court first established the four essential elements of going armed to the terror of the public, which are “(1) armed with unusual and dangerous weapons, (2) for the unlawful purpose of terrorizing the people of the named county, (3) by going about the public highways of the county, (4) in a manner to cause terror to the people.” Slip Op. at ¶ 7 (quoting State v. Staten, 32 N.C. App. 495, 497 (1977)). The court then examined the common law history of going armed to the terror of the public, explaining that historically “a defendant could commit the crime of ‘going armed to the terror of the public’ in any location that the public is likely to be exposed to his acts, even if committed on privately-owned property.” Slip Op at ¶ 8.

Despite the common law interpretation of the crime, the court determined that the Staten requirement of an act on a “public highway” represented controlling precedent, and no North Carolina Supreme Court case had examined the public highway issue since Staten. After confirming that an act on a public highway was an essential element of the crime, the court found that the parking lot of a private apartment complex was not a “public highway” for purposes of going armed to the terror of the public.

Judge Griffin concurred in part and dissented in part with a separate opinion.

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.

In this Forsyth County case, defendant appealed her conviction for assault with a deadly weapon inflicting serious injury, arguing error in (1) instructing the jury that the knife was a deadly weapon per se, and (2) declining to instruct the jury on the lesser-included offense of misdemeanor assault inflicting serious injury. The Court of Appeals found no error. 

At a Father’s Day cookout in 2021, defendant and the victim, a woman who was serving macaroni and cheese, began to argue. Over the course of the day, the two had several confrontations about whether defendant was entitled to be served any of the macaroni and cheese. The confrontations led to a fight, where defendant slashed the victim several times with a small pocketknife, causing injuries to her face, arms, and torso. At trial, defense counsel requested that the jury be instructed on lesser included offenses and that the knife did not constitute a per se deadly weapon, but the trial court overruled this request and did not instruct on lesser included offenses. 

Reviewing (1), the Court of Appeals noted that the knife in question was not admitted into evidence at trial. Defendant argued that without the knife in evidence and without testimony of its character and appearance, it was improper to instruct the jury that it was a deadly weapon. The court disagreed, explaining “although the State bears the burden of proving, inter alia, the use of a deadly weapon, the State is not required to producethe alleged weapon to obtain a conviction for an assault involving a deadly weapon.” Slip Op. at 12. The court also disagreed with defendant about the evidence of the knife, as body-cam footage of defendant describing the knife was in the record, as well as evidence of the injuries sustained by the victim. After determining the trial court properly instructed the jury that the knife was a deadly weapon, the court concluded that (2) was also properly decided, explaining that the State’s evidence supported every element of the crime charged and “there was no conflicting evidence relating to any element of the charged crime.” Id. at 15 (cleaned up). 

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 this Wake County case, defendant appealed his convictions for forcible rape, sex offense, kidnapping, various assault charges, and interfering with emergency communication, arguing (1) he was deprived of his right to autonomy in the presentation of his defense, (2) he was deprived of effective assistance of counsel when his attorney admitted guilt during closing argument, and (3) the trial court lacked jurisdiction to sentence him for habitual misdemeanor assault due to a facially invalid indictment. The Court of Appeals majority disagreed, finding no error. 

In April of 2020, defendant came to trial for assaulting and raping a woman he was dating at the time. During the trial, defense counsel informed the court that defendant would not testify or present evidence, and the trial court conducted a colloquy to ensure defendant was knowingly waiving this right. During the colloquy, defendant mentioned documentary evidence he wanted to admit, but that his attorney had not admitted. The trial court did not instruct defense counsel to introduce the evidence. During closing argument, defense counsel mentioned that defendant was not guilty of kidnapping, sexual offense, or rape, but did not mention assault. Defendant was subsequently convicted, and appealed.  

In (1), defendant contended that he and defense counsel had reached an absolute impasse about the documentary evidence, and the trial court committed a structural error by failing to instruct defense counsel to comply with defendant’s wishes to admit the evidence. The Court of Appeals first noted the rule that “where the defendant and his defense counsel reach an absolute impasse and are unable come to an agreement on such tactical decisions, the defendant’s wishes must control.” Slip Op. at 5. However, here the court was “unable to determine from the cold record whether there was a true disagreement, which would amount to an absolute impasse.” Id. at 7-8. Additionally, the court explained that even if there was an error, it was not a type recognized as structural by the Supreme Court, referencing the list identified in State v. Minyard, 289 N.C. App. 436 (2023). 

Moving to (2), defendant argued his defense counsel committed an error under State v. Harbison, 315 N.C. 175 (1985), which would represent ineffective assistance of counsel. However, the court did not see a Harbison error, noting “defense counsel here never implied or mentioned any misconduct [by defendant]” while giving closing argument. Slip Op. at 15. Instead, the court held that “[defense counsel’s] statements cannot logically be interpreted as an implied concession of Defendant’s guilt.” Id.  

Finally, in (3) defendant argued that the indictment was flawed as it failed to state the assault caused “physical injury.” Id. at 17. The court explained that here, count VIII of the indictment alleged that defendant caused “serious injury” for the assault inflicting serious injury charge. Id. at 18. The court determined that the broader term was sufficient, as “it logically follows Defendant was noticed of his need to defend against an allegation that he caused physical injury as ‘serious injury’ is defined to include physical injury.” Id. at 21. 

Judge Murphy concurred in part and dissented in part by separate opinion, and would have held that the indictment for habitual misdemeanor assault in (3) was insufficient as physical injury and serious injury were not synonymous.  

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 McDowell County case, defendant appealed his conviction for discharging a firearm into an occupied vehicle in operation and possessing a firearm as a felon, arguing error in (1) not instructing the jury on the lesser included offense of discharging a firearm into an occupied vehicle; (2) not defining “in operation” during the jury instructions; and (3) denying defendant’s motion to dismiss. The Court of Appeals disagreed, finding no error.

In June of 2022, defendant’s ex-girlfriend and two accomplices drove a vehicle onto his property to take a puppy from his home. Testimony from the parties differed, but a firearm was discharged into the rear passenger side window of the vehicle as the ex-girlfriend and her accomplices attempted to drive away with the puppy. The engine of the vehicle was running, but it was stopped when the shot was fired through the window. Defendant did not object to the jury instructions during the trial. 

Reviewing  (1) for plain error, the Court of Appeals noted that “in operation” is undefined in G.S. 14-34.1, but looking to the plain meaning of the words and consideration from a previous unpublished case, the court arrived at the following: “A vehicle is ‘in operation’ if it is ‘in the state of being functional,’ i.e., if it can be driven under its own power. For a vehicle to be driven, there must be a person in the driver’s seat, and its engine must be running.” Slip Op. at 6. Because all the evidence indicated someone was in the driver’s seat of the vehicle and the engine was running, the trial court did not err by not instructing on the lesser included offense. Likewise, this dispensed with (2), as the trial court did not need to provide instruction on the meaning of “in operation” due to the phrase carrying its common meaning. Resolving (3), the court noted that testimony in the record would allow a reasonable juror to conclude defendant fired a shot into the vehicle, representing substantial evidence to survive a motion to dismiss.

 

 

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.

State v. Fields, 374 N.C. 629 (June 5, 2020)

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.

In this Buncombe County case, the North Carolina Supreme Court affirmed the Court of Appeals’ determination that the trial court lacked a factual basis to accept the defendant’s guilty plea, but modified the holding of the Court of Appeals by vacating the plea arrangement and remanding for further proceedings.

Defendant pled guilty to four charges resulting from his assault and strangulation of his then-girlfriend over the course of a single evening after reportedly holding the victim captive in her home for three days. As provided by the plea agreement between the defendant and the State, the trial judge sentenced the defendant to four consecutive sentences for the four offenses charged: assault on a female, violation of a domestic violence protective order, assault inflicting serious bodily injury, and assault by strangulation. The defendant subsequently petitioned for a writ of certiorari, which was granted by the Court of Appeals. The Court of Appeals filed a divided opinion reversing the trial court’s judgment and sentence, and the State appealed.

Applying its ruling in State v. Dew, 379 N.C. 64 (2021), that a single assaultive episode will support multiple assault charges only when there is a clear break delineating the end of one assault and the beginning of another, such as an intervening event, significant lapse of time, or change in location, the Supreme Court concluded that the facts presented at the defendant’s plea hearing did not establish such a distinct interruption. Instead, the factual statements provided at that hearing described a confined and continuous attack in which the defendant choked and punched the victim in rapid succession and without interruption. Thus, the Supreme Court affirmed the Court of Appeals’ ruling that the trial court erred when it accepted the plea and entered judgment on the three different assault charges (assault on a female, assault inflicting serious bodily injury, and assault by strangulation).

The Supreme Court disagreed, however, with the Court of Appeals’ prescribed remedy of arresting judgment on the lesser assault charges (assault on a female and assault by strangulation) and remanding for resentencing on assault inflicting serious bodily injury and violation of a DVPO. Noting that it is not the role of an appellate court to accept certain portions of a plea arrangement while rejecting others, the Supreme Court modified the holding of the Court of Appeals by vacating the entire plea arrangement.

Chief Justice Newby, joined by Justice Barringer, dissented on the basis that the prosecutor’s factual summary and testimony from the victim tended to show there was a distinct interruption between each assault.

There was sufficient evidence that the defendant committed multiple assaults against his girlfriend and the Court was equally divided as to whether there was sufficient evidence to establish that the defendant used his hands, feet, or teeth as deadly weapons.  The Court characterized “the question of how to delineate between assaults—to know where one assault ends and another begins—in order to determine whether the State may charge a defendant with multiple assaults” as an issue of first impression.  Reviewing case law, the Court explained that a single assault “might refer to a single harmful contact or several harmful contacts within a single incident,” depending on the facts.  The Court declined to extend the three-factor analysis of State v. Rambert, 341 N.C. 173 (1995), applicable to discharging a firearm into occupied property, to assault cases generally, saying that the Rambert factors were “not the ideal analogy” because of differences in the nature of the acts of discharging a firearm and throwing a punch or kick.  The Court determined that a defendant may be charged with more than one assault only when there is substantial evidence that a “distinct interruption” occurred between assaults.  Building on Court of Appeals jurisprudence, the Court said: 

[W]e now take the opportunity to provide examples but not an exclusive list to further explain what can qualify as a distinct interruption: a distinct interruption may take the form of an intervening event, a lapse of time in which a reasonable person could calm down, an interruption in the momentum of the attack, a change in location, or some other clear break delineating the end of one assault and the beginning of another.

The Court went on to explain that neither evidence of a victim’s multiple, distinct injuries nor evidence of different methods of attack alone are sufficient to show a “distinct interruption” between assaults. 

Turning to the facts at hand, the Court concluded that evidence showing that the defendant beat the victim for hours inside a trailer and subsequently beat the victim in a car while driving home was sufficient to support multiple charges of assault.  The assaults were separated by an intervening event interrupting the momentum of the attack – cleaning the trailer and packing the car.  The assaults also were distinct in time and location.  Though the defendant was charged with at least two assaults for conduct occurring inside the trailer, the Court concluded that the evidence indicated that there was only a single assault inside the trailer as the attack was continuous and ongoing.

State v. Prince, 377 N.C. 198 (Apr. 16, 2021)

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 Rutherford County case, defendant appealed his convictions for various assault charges, first-degree kidnapping, obstructing justice, and violations of a domestic violence order, arguing (1) error in denying his motion to dismiss for insufficient evidence, (2) ineffective assistance of counsel, (3) failure to intervene ex mero motu during the State’s opening statement and closing argument, and (4) error in admitting Rule 404(b) evidence. The Court of Appeals found no error and dismissed defendant’s ineffective assistance of counsel claim without prejudice.  

In January of 2021, defendant and his girlfriend smoked methamphetamine together, and defendant became paranoid that his girlfriend was wearing a wire. He began ripping off her clothes, and eventually used a Sawzall to cut off her hoodie. Defendant also struck her in the head with a flashlight, causing bleeding. Defendant eventually dragged her into the bathroom and put her in the shower, but also struck her again with the showerhead and punched her. Defendant then dragged her into the living room and choked her until she passed out. After coming to trial, defendant was convicted of the charges and admitted to attaining habitual felon status. 

Taking up (1), the Court of Appeals noted that defendant presented the evidence in the light most favorable to him, not to the State, but the court conducted a review of the evidence under the proper standard regardless. The court walked through each charge on pages 6-12 of the Slip Opinion, including a discussion of the specific elements of each charge. The court spent significant time distinguishing between each assault charge with a distinct interruption between the assaults. Ultimately, the court concluded that there was no error in denying defendant’s motion to dismiss. 

Moving to (2), defendant’s argument was predicated defense counsel conceding his guilt during closing argument. The court found the record was not developed adequately to address this claim, dismissing it without prejudice. Reaching (3), defendant argued the State “deliberately appeal[ed] to the jurors’ sense of passion and prejudice” in its opening statement and closing argument. Slip Op. at 14. The court did not share this interpretation, noting “[w]hile the State argued passionately, it was within the bounds of decorum and propriety.” Id.

Finally, in (4) the court considered the admission of evidence under Rule of Evidence 404(b), specifically testimony about defendant’s previous abusive behavior towards his girlfriend during 2020. The court explained “[b]ecause Defendant’s conduct was admissible as proof of motive, intent, manner, and common scheme, [the witness’s] testimony was relevant for a purpose other than showing Defendant’s propensity for violence.” Id. at 18. The trial court also “carefully deliberated and made a well-reasoned decision” when admitting the evidence, showing no issue with admission under Rule of Evidence 403. Id.

In this Durham County case, defendant appealed his convictions for first-degree kidnapping, three counts of assault, and interfering with emergency communications, arguing (1) he was prejudiced by not receiving a pretrial release hearing under G.S. 15A-534.1, (2) double jeopardy for his multiple assault convictions, (3) his conviction for assault by strangulation was improper, and (4) insufficient evidence to support his kidnapping conviction. The Court of Appeals found no prejudicial error.

In January of 2020, defendant and a woman he was living with began arguing, culminating in defendant headbutting the woman several times. Eventually defendant began beating the woman and dragged her by her hair, then throwing her and choking her in the bedroom. The woman eventually hid her child in a closet and jumped out of a window on the third-floor to escape defendant. The woman’s mother attempted to intervene but defendant struck her in the mouth, busting the mother’s lip. Defendant also took the mother’s phone and threw it away, but she retrieved it to call police. After defendant was arrested, the magistrate did not set bond on his kidnapping charge, determining it to be a domestic violence act, and ordered the State to produce defendant for a hearing on conditions of pretrial release. The State did not comply with this order, and defendant remained in custody, not posing bond on any of the charges. After remaining in custody from March to September of 2020, defendant filed a motion to dismiss his kidnapping charge, arguing G.S. 15A-534.1 required dismissal. Defendant’s charges were consolidated the next day with pretrial release conditions and a bond of $250,000; defendant did not post bond and remained in custody. The trial court also denied defendant’s motion to dismiss. Defendant reached trial in November 2021, and was convicted after a bench trial, receiving credit for time served. 

Considering (1), the Court of Appeals noted that the State admitted it did not hold the pretrial release hearing but explained the failure as inadvertent due to the onset of COVID-19. Analyzing the impact, the court explained “[t]he inadvertence does not excuse the State; rather, it is relevant to show the absence of a flagrant constitutional violation.” Slip Op. at 11. The court also noted defendant did not post bond after his initial arrest, and “even if the State had held a timely pretrial release hearing on the kidnapping charge, Defendant would not have been released.” Id. at 11. As a result, defendant could not show irreparable prejudice to the preparation of his case. 

Next the court considered (2), as defendant argued the events constituted one long assault. The court disagreed, explaining there was an “interruption in the momentum” and “a change in location” between the events of the three assaults. Id. at 14-15. The court held each offense was separate and distinct, and found no merit in defendant’s argument. The court applied the same analysis for (3), pointing to “a distinct interruption in the assaults” to justify defendant’s convictions for assault inflicting serious bodily injury as well as assault by strangulation. Id. at 16. 

Finally, the court took up (4), noting that defendant’s acts of confining and removing the victim represented separate and distinct acts from the underlying assaults, justifying the kidnapping charge. The court explained that “Defendant’s confinement of [the victim] by pulling her by the hair back into the bedroom, confining her in there by kicking at the locked door, and forcing her to escape by jumping from the third floor window, were separate, complete acts apart from Defendant’s other assaults upon her.” Id. at 19. 

In this Forsyth County case, defendant appealed her conviction for assault with a deadly weapon inflicting serious injury, arguing error in (1) instructing the jury that the knife was a deadly weapon per se, and (2) declining to instruct the jury on the lesser-included offense of misdemeanor assault inflicting serious injury. The Court of Appeals found no error. 

At a Father’s Day cookout in 2021, defendant and the victim, a woman who was serving macaroni and cheese, began to argue. Over the course of the day, the two had several confrontations about whether defendant was entitled to be served any of the macaroni and cheese. The confrontations led to a fight, where defendant slashed the victim several times with a small pocketknife, causing injuries to her face, arms, and torso. At trial, defense counsel requested that the jury be instructed on lesser included offenses and that the knife did not constitute a per se deadly weapon, but the trial court overruled this request and did not instruct on lesser included offenses. 

Reviewing (1), the Court of Appeals noted that the knife in question was not admitted into evidence at trial. Defendant argued that without the knife in evidence and without testimony of its character and appearance, it was improper to instruct the jury that it was a deadly weapon. The court disagreed, explaining “although the State bears the burden of proving, inter alia, the use of a deadly weapon, the State is not required to producethe alleged weapon to obtain a conviction for an assault involving a deadly weapon.” Slip Op. at 12. The court also disagreed with defendant about the evidence of the knife, as body-cam footage of defendant describing the knife was in the record, as well as evidence of the injuries sustained by the victim. After determining the trial court properly instructed the jury that the knife was a deadly weapon, the court concluded that (2) was also properly decided, explaining that the State’s evidence supported every element of the crime charged and “there was no conflicting evidence relating to any element of the charged crime.” Id. at 15 (cleaned up). 

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.

<