Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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The defendant appealed from his conviction for the first-degree murder of his grandfather based on the felony murder rule using the attempted murder of his mother with a deadly weapon as the predicate felony. The trial court instructed the jury that it could find the defendant guilty of first-degree murder if it found that he killed his grandfather as part of a continuous transaction during which he also attempted to murder his mother using either his hands or arms or a garden hoe as a deadly weapon. The defendant appealed, arguing that his hands and arms were not properly considered a deadly weapon for purposes of the felony murder rule and that the trial court’s erroneous instruction that the jury could find that he attempted to murder his mother using a garden hoe was prejudicial error.
The defendant was at the home of his mother and grandfather on November 5, 2013. He owed money to both and they had recently told him that they would lend him no more. As his mother went outside the defendant followed behind her, saying he was leaving to go to work. His mother walked into a storage shed behind the house, where she remained for five or 10 minutes. She did not hear the defendant get into his car or hear the vehicle leave. While she was in the shed, she thought she heard raised voices. She came out to check on her father. As she walked toward the house, she felt someone put an arm around her neck. Her attacker put a hand over her nose and mouth and she lost consciousness. The next thing she remembered was someone opening her eyelid as she lay on the ground. She saw defendant’s face and thought he was there to help her.
The defendant worked from 11 p.m. to 7 a.m., returning home the following morning. When he got home he saw that his mother had been attacked and called for emergency assistance. The defendant’s grandfather was dead when the paramedics arrived. He was face down near the back door, covered in blood, with a large pool of blood around his head. A garden hoe covered in blood was next to his body. The grandfather’s wallet was near his body and did not contain the money usually kept there.
The defendant denied his involvement in the assault and murder. He gave different explanations for the presence of scratches on his arm. DNA evidence from the scene did not connect him to the crime. The defendant’s mother (who experienced a traumatic brain injury) initially told investigators that the defendant left the home before she was attacked and said the person who attacked her was shorter than the defendant and was wearing a ski mask. She testified differently at trial, stating that it was the defendant who had choked her and that there had been no ski mask.
The trial court instructed the jury on multiple theories of first-degree murder, including the felony-murder rule using the attempted murder of the defendant’s mother as the predicate felony. As to the deadly weapon requirement, the court told the jury that the “State contends and the defendant denies that the defendant used his hands and/or arms, and or a garden hoe as a deadly weapon.” The jury convicted the defendant of first-degree murder based on this theory, and the defendant appealed.
The supreme court relied upon a “virtually uninterrupted line of appellate decisions from this Court and the Court of Appeals interpreting the reference to a ‘deadly weapon’ in N.C.G.S. § 14-17(a) to encompass the use of a defendant’s hands, arms, feet, or other appendages” and the “fact that the General Assembly has not taken any action tending to suggest that N.C.G.S. § 14-17(a) should be interpreted in a manner that differs from the interpretation deemed appropriate in this line of decisions” to establish that the General Assembly intended for the term “deadly weapon” to include a defendant’s hands, arms, feet or other appendages. The court rejected the defendant’s invitation to overrule or limit to child victims its holding in State v. Pierce, 346 N.C. 471 (1997) that the offense of felony child abuse could serve as the predicate felony for felony-murder when the defendant used his hands as a deadly weapon in the course of committing the abuse. The court also rejected the defendant’s invitation to rely on State v. Hinton, 361 N.C. 207 (2007) for the proposition that the term “deadly weapon” has different meanings in different contexts and should have a felony-murder specific definition. The Hinton court held that the reference to “any firearms or other dangerous weapon, implement or means” as used in N.C.G.S. § 14-87(a) (defining robbery with a dangerous weapon) did not encompass the use of a defendant’s hands because the statute was intended to provide a “more severe punishment when the robbery is committed with the ‘use or threatened use of firearms or other dangerous weapons’” than when the defendant committed common law robbery, which did not involve the use of such implements. The court reasoned that the logic in Hinton had no application to its interpretation of the felony-murder statute as nothing in the language or legislative history of G.S. 14-17 suggested that its reference to “deadly weapon” should be defined in a way that differed from the traditional definition, which included a person’s appendages.
Finally, the court rejected the notion that its interpretation meant that every killing perpetrated with the use of a defendant’s hands, arm, legs, or other appendages could constitute felony murder, thus undermining the General Assembly’s attempt to limit the scope of the rule when it revised the statute in 1977. The court noted that the extent to which hands, arms, legs, and other appendages can be deemed deadly weapons depends upon the nature and circumstances of their use, including the extent to which there is a size and strength disparity between the perpetrator and his or her victim. Moreover, something more than a killing with hands, arms, legs, or other bodily appendages must be shown (a felony) to satisfy the rule.
The court then considered whether the trial court’s instructions to the jury that it could find that the defendant attempted to murder his mother using a garden hoe was prejudicial error, concluding that it was as there was a reasonable possibility that the jury would not have convicted the defendant of first-degree murder without the erroneous instruction. The court explained that to conclude otherwise, “[w]e would be required to hold that the State’s evidence that defendant killed his grandfather as part of a continuous transaction in which he also attempted to murder his mother using his hands and arms as a deadly weapon was so sufficiently strong that no reasonable possibility exists under which the jury would have done anything other than convict defendant of first-degree murder on the basis of that legal theory.” The sharply disputed evidence over whether the defendant was the perpetrator, including the lack of physical evidence, the defendant’s trial testimony, and the conflicting nature of the statements made by the defendant’s mother, prevented the court from concluding that the error was harmless. Even more central to the court’s analysis was the dispute over the extent to which the defendant’s hands and arms were a deadly weapon. The court noted that although the size and strength differential between defendant and his mother was sufficient to permit a determination that defendant’s hands and arms constituted a deadly weapon, the differences were not so stark as to preclude a reasonable jury from concluding that defendant’s hands and arms were not a deadly weapon. If the jury had reasonably concluded that the defendant’s hands and arms were not used as a deadly weapon, it could not have convicted the defendant of the first-degree murder of his grandfather on the basis of the felony-murder rule, contrary to the suggestion in the jury instruction. As a result, the Court held that the trial court’s instruction concerning the use of the garden hoe as a deadly weapon during defendant’s alleged attempt to murder his mother was prejudicial error necessitating a new trial for the murder of his grandfather.
Justice Newby, joined by Justice Morgan, concurred in part and dissented in part. He agreed with the majority that the defendant’s hands and arms were deadly weapons, but disagreed that the instruction regarding the garden hoe resulted in prejudicial error.
Justice Earls concurred in the result only in part and dissented in part. She agreed with the majority that the instruction regarding the garden hoe was error warranting a new trial. She dissented from the majority’s conclusion that a jury could properly consider a person’s hands, arms, feet, or other body parts to be deadly weapons for purposes of the felony murder statute, reasoning that the legislative history and spirit of the statute demonstrate that the deadly weapon requirement refers to an external instrument.
On discretionary review of a unanimous decision below, 259 N.C. App. 127 (2018), the court reversed the Court of Appeals and held that appellate counsel was not ineffective for failing to cite a particular line of cases because the facts of this case were distinguishable from those in the line of cases the Court of Appeals would have had appellate counsel cite. The Court of Appeals had held that appellate counsel was ineffective for failing to make the argument under State v. Pakulski, 319 N.C. 562 (1987) that a trial court commits plain error when it instructs a jury on disjunctive theories of a crime, one of which is erroneous, and it cannot be discerned from the record the theory upon which the jury relied. Noting that its opinion in Pakulski “lacks clarity” with respect to the standard of review applied there, the court explained that Pakulski applied the harmless error rather than plain error standard, as evidenced by subsequent precedent. Because the defendant in this case did not object to the trial court’s jury instructions, the court explained that Pakulski “would have had little precedential value in the instant case, and appellate counsel’s failure to cite it was not objectively unreasonable.” The court went on to explain that the arguments made by appellate counsel were appropriate for plain error review as counsel argued that the jury was presented with multiple theories of guilt, one of which was erroneous, and the error had a probable impact on the jury’s verdict.
Justice Ervin, joined by Justice Newby, concurred, agreeing with the court’s interpretation of Pakulski and its determination that appellate counsel was not ineffective, but writing separately to clarify the general matter that a defendant may be convicted of possession of a firearm by a felon under an acting in concert theory. Noting that neither the North Carolina Supreme Court nor the Court of Appeals has ever directly held that a defendant can be convicted of that offense on the basis of an acting in concert theory, Justice Ervin described the “general availability of the acting in concert doctrine in possession-related cases” and stated that he was not persuaded that the theory is inapplicable to the offense of possession of a firearm by a felon.
Justice Earls, joined by Justice Davis, dissented, expressing the view that the majority opinion’s explanations of Pakulski and appellate counsel’s arguments were inaccurate. In Justice Earls’ view, Pakulski applied the plain error standard of review and appellate counsel did not meet the obligation to argue to the Court of Appeals that the defendant could not be convicted of possession of a firearm by a felon based on someone else’s possession.
On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 799 S.E.2d 645 (2017), in this felon in possession of a firearm case, the court reversed, holding that though the trial court erred in its jury instructions with respect to possession of a firearm, the error did not require a new trial. At trial, the defendant objected to any reference in the jury instructions to constructive possession, arguing that the facts showed only actual possession. The trial court overruled the defendant’s objection and instructed that possession could be either actual or constructive. During deliberations, the jury requested “a legal definition of possession of a firearm,” and the court re-instructed the jury consistent with its prior instructions. The defendant was convicted and he appealed. The Court of Appeals awarded the defendant a new trial, finding that the evidence supported an instruction only for actual possession and that the trial court erred by instructing on constructive possession. That court reasoned that inclusion of a jury instruction unsupported by the evidence is reversible error. The State sought discretionary review and the Supreme Court reversed.
The Supreme Court began by noting that it has treated actual and constructive possession as alternative means of showing possession of an item necessary for guilt. Thus, the Court of Appeals correctly determined that the trial court erred by allowing the jury to potentially convict the defendant of possession of a firearm by a felon on the basis of constructive possession where no evidence supported that theory.
Turning to whether that error required a new trial, the court held that it did not. Concluding that its “existing jurisprudence does not conclusively establish that existing North Carolina law encompasses an automatic reversal rule” in these circumstances, it turned to a determination of whether it should adopt such a rule. It declined to do so, holding that the defendant’s challenge to an unsupported constructive possession instruction is subject to traditional harmless error analysis. The court went on to note that as a general matter, a defendant seeking to obtain appellate relief on the basis of an error to which there was an objection at trial must establish that there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. It noted however that cases involving submission of erroneous jury instructions are “exceedingly serious and merit close scrutiny to ensure that there is no ‘reasonable possibility’ that the jury convicted the defendant on the basis of such an unsupported legal theory.” However, if the State presents exceedingly strong evidence of guilt on the basis of a theory and that evidence is neither in dispute nor subject to serious credibility-related questions, “it is unlikely that a reasonable jury would elect to convict the defendant on the basis of an unsupported legal theory.” Turning to the case at hand, it noted that the undisputed evidence showed that officers went to a location after receiving report that an individual possessed a firearm. They discovered the weapon while searching the defendant, who matched the description that had been provided. On these facts the defendant failed to establish that there is a reasonable possibility that, in the absence of the erroneous instruction, the jury would have acquitted. Justice Morgan dissented.
On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 800 S.E.2d 724 (2017), the court, in a per curiam opinion, vacated and remanded to the Court of Appeals for reconsideration in light of State v. Malachi, ___ N.C. ___, ___ S.E.2d ___ (2018). In this impaired driving case, the Court of Appeals had held that the trial court committed reversible error by instructing the jury that it could find the defendant guilty if he was driving under the influence of an impairing substance or had a blood alcohol concentration of .08 or more, where no evidence supported a conviction under the .08 prong of the impaired driving statute. The Court of Appeals reasoned that although disjunctive jury instructions generally are permissible for impaired driving, in this case the State presented no evidence supporting the .08 prong. That court thus concluded that the trial court improperly instructed the jury on alternative theories, one of which is not supported by the evidence. It further held that because it is impossible to conclude, based on the record and the general verdict form, upon which theory the jury based its verdict, it must assume that the jury based its verdict on the theory for which it received an improper instruction. The Court of Appeals went on to reject the State’s argument that the error was harmless or non-prejudicial and noted that this is not a case where there is overwhelming evidence of impaired driving.
In this capital case the court rejected the defendant’s argument that the trial court erred in the guilt phase by instructing the jury that it could find the defendant guilty of sexual offense if it found either vaginal or anal penetration where the State failed to present any evidence of anal penetration and it cannot be discerned from the record upon which theory or theories the jury relied in arriving at its verdict. The court also rejected the defendant’s related argument that the trial court erred in the sentencing phase by instructing the jury that it could find the (e)(5) aggravating circumstances that the capital felony was committed while the defendant was engaged in the commission of, or flight after committing, the act of sexual offense with a child. Noting that the trial judge should never give instructions to a jury which are not based upon facts presented by some reasonable view of the evidence, the court found that here there was sufficient evidence of anal penetration.
The defendant was tried in Guilford County on charges of discharging a weapon into occupied property, firearm by felon, first-degree burglary, trafficking cocaine, possession with intent, and two counts of habitual felon. At the charge conference, the defendant requested an instruction on misdemeanor breaking or entering, which the trial judge agreed to give. The defendant objected to jury instructions on actual and constructive possession for the drug offenses, but the trial court overruled the objection and instructed the jury on both theories of possession. The jury convicted on all counts and the defendant appealed.
(1) In its instruction to the jury on misdemeanor breaking or entering, the trial court deviated from the language of the pattern instruction. While the pattern instruction states the offense need not require felonious intent “so long as the breaking or entering was wrongful, that is, without any claim of right,” the trial court instructed the jury that the defendant could be found guilty of the crime if they believe he lacked felonious intent but acted “without consent of the owner or tenant.” Slip op. at 11-12. This “minor deviation” from the pattern instruction did not amount to error, as the instruction was supported by the evidence and “correct in law.” Id. at 13. Even assuming error, the defendant could not show prejudice—he did not make any claim of right to enter the property and the jury convicted on first-degree burglary in any event.
(2) As to the jury instructions on actual and constructive possession, it was error to instruct the jury on actual possession where no evidence supported that theory. However, the defendant again could not demonstrate prejudice. The evidence of defendant’s constructive possession of the drugs was “exceedingly strong,” and this defeated any claim of prejudice.
(3) At the initial sentencing hearing, the trial court failed to impose a sentence for one of the two habitual felon convictions. The next day, the trial court realized its error and imposed the second habitual sentence. The defendant gave notice of appeal following the first hearing and contended the trial court lacked jurisdiction to sentence the defendant at the second hearing. The trial court normally loses jurisdiction to act once notice of appeal has been given. However, G.S. 15A-1448(a)(3) authorizes the trial court to act to correct a sentencing error within 14 days of the original sentence, even if the defendant has given notice of appeal and even without a motion for appropriate relief. See State v. Lebeau, ___ N.C. App. ___, 843 S.E.2d 317 (April 21, 2020). The trial court was required to sentence the defendant as a habitual felon once the verdict was returned and doing so was not a substantive amendment of the sentence but merely a “statutorily ‘necessary by-product’ of the sentence.” McMillan Slip op. at 20. The trial court therefore retained jurisdiction to correct the sentence, and the convictions were unanimously affirmed.
Two men (“Stroud” and “Bernard”) hosted two young women (“Jermisha” and “Kendretta”) at Stroud’s home on two occasions. During the second visit, Kendretta experienced a “spell” where she fell down and started kicking, apparently as a result of consuming alcohol and synthetic weed. About an hour after Kendretta recovered and left, the defendant showed up at Stroud’s house in a car, accompanied by at least two other individuals. The defendant identified himself as “KP” and confronted Stroud on the front porch, where he accused him of trying to take sexual advantage of Kendretta. The defendant stated he was here to kill Stroud and pulled out a gun. Stroud initially struggled with the defendant, but once the defendant drew and aimed his gun, Stroud fled inside. The defendant fired multiple shots into Stroud’s home and then drove away. Stroud’s niece was able to identify “KP” as the defendant, and she later spoke to the defendant about what happened and he admitted shooting into the house. The defendant was indicted, tried, and convicted on charges of discharging a firearm into an occupied dwelling and possession of a firearm by a convicted felon.
On appeal, the defendant argued that the trial court erred by instructing the jury on the theory of acting in concert (over the defendant’s objection and a request for a special verdict form) because that theory was not supported by the evidence and including it in the instructions was prejudicial. Pursuant to State v. Malachi, 371 N.C. 719 (2018), even if the jury was instructed on an unsupported legal theory, the appellate court must engage in a two-part inquiry to determine prejudice: “first we ask whether the State presented ‘exceedingly strong evidence of defendant’s guilt on the basis of a theory that has sufficient support’ from the evidence presented; and, second, we must ensure that ‘the State’s evidence is neither in dispute nor subject to serious credibility-related questions[.]’ […] If we are satisfied that those conditions have been met, we must conclude ‘it is unlikely that a reasonable jury would elect to convict the defendant on the basis of an unsupported legal theory.’” Reviewing the evidence in the case, the court found that both parts of the inquiry were satisfied by the state’s evidence. First, the eyewitness testimony, along with physical evidence such as a bullet recovered from inside the home, provided exceedingly strong evidence that the defendant did discharge a firearm into an occupied dwelling. Second, minor discrepancies in the trial testimony such as what type of car the defendant drove to Stroud’s house did not rise to the level of presenting a material dispute in the evidence, nor were there “serious credibility-related questions” with the evidence. The court acknowledged that Stroud’s niece, a key witness for the state, was cross-examined about her potential bias against the defendant, but “she answered the questions about her alleged bias head-on and flatly denied having any bias against Defendant, going as far as to say she cares for him and his family. We find this testimony remediates the seriousness of any credibility-related questions.” Therefore, even assuming arguendo that it was error to instruct the jury on acting in concert in this case, the state presented “exceedingly strong evidence of Defendant’s guilt that was neither in dispute nor subject to serious credibility-related questions,” so the error was not prejudicial.
In this embezzlement case, the trial court did not commit plain error with respect to the jury instructions. The defendant argued that the trial court committed plain error by instructing the jury on an alternative theory of guilt not supported by the evidence; specifically, by including as an element of embezzlement that she “did take and make away with” money entrusted to her. She conceded however that the jury was correctly instructed on the law during the trial court’s summation of the elements of embezzlement. Nevertheless the defendant argued she was deprived of a right to a unanimous jury because of the trial court’s error. No plain error occurred where the evidence that the defendant misapplied money entrusted to her in a fiduciary capacity was overwhelming and it cannot reasonably be argued that the jury would have returned a different verdict but for the trial court’s error in instructing on the alternate theory.
In this rape and sex offense case, the court rejected the defendant’s argument that the trial court committed plain error by instructing the jury that it could find that the victim suffered serious personal injury in the form of mental injury; even if error occurred, it had no probable impact on the verdict. The defendant argued that the jury instruction was improper because the State presented no evidence of mental injury. The court noted that for several decades the appellate courts had held that it was per se error for the trial court to instruct the jury on a theory that was not supported by the evidence. However, in State v. Boyd, 366 N.C. 548 (2013) (per curiam), the Supreme Court shifted away from the per se rule. Now, a reviewing court must determine whether such an instruction constituted reversible error, without being required to assume that the jury relied on the inappropriate theory. Under North Carolina law, evidence of bodily or mental injuries can constitute serious personal injury for the purposes of forcible rape and forcible sex offense. Here, there was substantial evidence that the defendant inflicted bodily harm on the victim, who was seven months pregnant. The victim struggled to protect her stomach while the defendant forcibly dragged her down 33 concrete stairs and into nearby woods. She sustained extensive bruises and abrasions to most of the left side of her body, including her leg, abdomen, back, side, arm, and shoulder. Although some of the wounds were superficial, others were more significant abrasions. A nurse who testified at trial compared her injuries to “road rash” that a person might suffer after falling off a motorcycle traveling at 55 mph. The victim testified that her injuries were painful and she still bore extensive scars at trial. The court concluded that even assuming arguendo that there was no evidence to support the trial court’s instruction on mental injury, the defendant failed to meet his burden of showing that the alleged error had any probable impact on the jury’s verdict.
(1) The trial court committed plain error with respect to its jury instructions on obtaining property by false pretenses; the instructions allowed the jury to convict the defendant of a theory not alleged in the indictment. The indictment alleged that the false pretense at issue was the filing a fire loss claim under the defendant’s homeowner insurance policy, when in fact the defendant had intentionally burned her own residence. In its instructions to the jury, the trial court did not specify the false pretense at issue. Although the State’s evidence supported the allegation in the indictment, it also supported other misrepresentations made by the defendant in connection with her insurance claim. The court concluded: “Where there is evidence of various misrepresentations which the jury could have considered in reaching a verdict for obtaining property by false pretense, we hold the trial court erred by not mentioning the misrepresentation specified in the indictment in the jury instructions.”
(2) The trial court committed plain error with respect to its jury instructions for insurance fraud. The indictment for insurance fraud alleged that the defendant falsely denied setting fire to her residence. The trial court’s instructions to the jury did not specify the falsity at issue. Following the same analysis applied with respect to the false pretenses charge, the court held that because the trial court’s instructions allowed the jury to convict the defendant of insurance fraud on a theory not alleged in the indictment, the instructions constituted plain error.
In this kidnapping case, although the trial court erred by instructing the jury on theories that were not alleged in the indictment, no plain error occurred. After rejecting the State’s argument that the defendant was precluded from plain error review, the court noted that the instruction error pertained to the elements that elevate a kidnapping to first-degree: failure to release in a safe place; serious injury to the victim; or sexual assault of the victim. Here, although the indictment charged only the element of sexual assault, the trial court instructed the jury that it could find the defendant guilty based on failure to release in a safe place, sexual assault or serious injury to the victim. Thus, the jury was instructed on elements not charged in the indictment, and this was error. However, the jury was given a special verdict sheet that separately listed all of the elevating elements, and the jury found the defendant guilty based on each individual elevating element. Because the State presented compelling evidence to support the elevating element of failure to release in a safe place (among other things, the defendant left the victim alone at the bottom of a rocky creek embankment under a bridge near a deserted stretch of road) and because the jury separately found the defendant guilty of first-degree kidnapping based on all of the elevating elements, no plain error occurred.
No plain error occurred in this drug case where the trial court instructed the jury that it could convict the defendant if it found that he was in actual or constructive possession of the contraband. Although there was no evidence that the defendant actually possessed the contraband, no plain error occurred where there was substantial evidence that the defendant constructively possessed the items and where the defense at trial was that the defendant’s sister-in-law planted the drugs and that his brother-in-law was storing weapons in his house.
(1) In this habitual misdemeanor larceny case, the court rejected the defendant’s argument that the trial court created a fatal variance when it instructed the jury on a theory of acting in concert not alleged in the indictment. Citing prior case law, the court held that the theory of acting in concert need not be alleged in the indictment. (2) The court rejected the defendant’s argument that a fatal variance existed between the indictment, the jury instructions, and the verdict sheets because each held him accountable for stealing a different number of items. Neither the jury instructions nor the verdict sheet were required to specify the number of items stolen.
In this child sex case, no prejudicial error occurred when the trial court instructed the jury on a sexual act that was not supported by the evidence. The defendant was convicted of four felonies under G.S. 14-27.4(a)(1) (first degree sexual offense with a child) and two felonies under G.S. 14-27.7(a) (sex offense in a parental role). Both statutes require that the defendant engage in a “sexual act” with the victim. The term sexual act is defined as cunnilingus, fellatio, analingus, or anal intercourse. The evidence at trial showed that the defendant engaged in fellatio and anal intercourse with victim. There was however no evidence that the defendant engaged in analingus with the victim. However, the trial court instructed the jury that it could find the defendant guilty of the six felonies if it found that he committed fellatio, anal intercourse, or analingus with the victim. The court noted that it cannot be discerned from the verdict sheets which theory the jury relied upon to find the defendant guilty. In its first opinion in the case, the court held that the trial court’s inclusion of analingus, where no evidence of that act was offered at trial, constituted plain error per se. The Supreme Court however remanded, instructing the court to revisit its holding in light of State v. Boyd, 366 N.C. 548 (2013). In Boyd, the trial court instructed the jury that it could convict the defendant of kidnapping based on three alternative theories: confinement, restraint, or removal. On appeal to the court of appeals, two members of the panel held that the instruction constituted plain error because there was no evidence that the defendant had removed the victim. A dissenting judge agreed with the majority that the trial court erred by instructing on the theory of removal but disagreed that the error rose to the level of plain error. The dissenting judge did not assume that the jury relied on the theory of removal to support the kidnapping conviction; rather, she cited the overwhelming evidence supporting the other kidnapping theories, confinement and restraint, to conclude that the defendant failed to show that absent the error the jury would have returned a different verdict. The Supreme Court reversed the court of appeals in Boyd, adopting the dissenting opinion from the intermediate appellate court. In this second appeal, the court noted that the Supreme Court’s approach in Boyd represented a shift away from the per se rule that had been previously applied in cases involving disjunctive instructions where one of the theories was not supported by the evidence. Turning to the case at hand, the court concluded that the defendant failed to meet his burden of showing that the trial court’s inclusion of analingus in the jury instruction had any probable impact on the verdict. It noted that the victim was clear in her testimony regarding the occasions where fellatio and anal intercourse had occurred.