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.

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.

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.

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

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

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

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

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

In this 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. 

(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.

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.

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. 

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. 

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.”

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.

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.

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.

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 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. 

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.

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.

(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.

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.

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

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

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.

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.

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.

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. 

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. 

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.

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 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.

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 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 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.

(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. 

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 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.

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.

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.

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.

(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.

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.

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.

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].