State v. Austin, ___ N.C. ___, 2021-NCSC-87 (Aug. 13, 2021)

The defendant was indicted for assault on a female, habitual misdemeanor assault, and attaining habitual felon status. Following the presentation of the evidence at trial, the trial court instructed the jury on the charges of assault on a female and habitual misdemeanor assault. During the initial instruction on the charge of assault on a female, the trial court stated, in part:

For you to find the defendant guilty of this offense, the State must prove three [things] beyond a reasonable doubt:

First, that the defendant intentionally assaulted the alleged victim. It has been described in this case by the prosecuting witness that the defendant hit her upon her head, that he hit her on her arms, about her body.

You are the finders of fact. You will determine what the assault was, ladies and gentlemen. The Court is not telling you what it is, I’m just giving you a description. And there was also testimony by the witness that the defendant asked her to perform, by force, another act, which could be considered an assault. But you will determine what the assault was. I’m not telling you what it is. And if what I’m saying is the evidence and your recollection is different from what I say, you still should rely upon your recollection of the evidence, as to what the assault is that has been testified to in this case. 

Slip op. at ¶ 6. The defendant did not object to any of the trial court’s jury instructions at trial, and he was found guilty of assault on a female and habitual misdemeanor assault. On appeal, the defendant argued that the trial court had improperly expressed its opinion during jury instructions that an assault had occurred. The Court of Appeals found no error and upheld defendant’s conviction.

Based on a dissenting opinion, the defendant appealed to the Supreme Court, arguing that the trial court’s comments were improper expressions of opinion which prejudiced the defendant. In affirming the decision of the Court of Appeals, the Court concluded that even assuming the trial court violated the statutory prohibitions against the expression of opinion, the defendant cannot show a reasonable possibility of a different result. The Court reasoned that the State presented evidence at trial which satisfied the elements of the predicate assault, and the trial court’s instruction made clear that the jury alone was responsible for making this determination

Justice Earls dissented, writing that the majority failed to give proper weight to the statutory mandate against expression of opinion by refusing to engage meaningfully in a prejudice analysis and instead ignoring any impact the judge’s instructions had on the jury.