State v. Bowman, COA23-82, ___ N.C. App. ___ (Feb. 6, 2024)

In this Durham County case, defendant appealed his convictions for two first-degree forcible sexual offense charges and five other charges related to the rape and assault of a female, arguing (1) plain error by instructing the jury on only one count of first-degree forcible sexual offense, and (2) clerical errors in the judgment requiring remand. The Court of Appeals majority agreed with defendant, remanding for a new trial on the two forcible sexual offense charges and correction of the clerical errors.  

In September of 2019, defendant appeared at the victim’s home heavily intoxicated and armed with a gun. After yelling for the victim to let him inside, defendant accused the victim of sleeping with someone else while brandishing his gun, and proceeded to forcibly rape and sexually assault her. Defendant was indicted on seven charges, including first-degree forcible rape, two counts of first-degree forcible sexual offense, and four other associated charges. When instructing the jury, the trial court read the elements for forcible sexual offense, but did not read separate instructions for each count charged, or notify the jury that defendant was charged with two separate counts of the offense. While the verdict sheets listed two counts, “the two counts were not separated by specific instances of sexual act[,]” and were instead listed as count two and count three. Slip Op. at 3. Defendant did not object to the jury instructions, and he was ultimately convicted of all seven charges against him.  

Taking up (1), the Court of Appeals noted that the applicable standard of review was plain error, and looked to State v. Bates, 179 N.C. App. 628 (2006), for relevant considerations. Unlike the circumstances in Bates, the jury instructions and verdict sheets in the current case did not differentiate the charges by specific sexual act associated with each charge. This called into question the unanimity of the jury, as there was no way to determine if each juror agreed on the same sexual acts supporting the two charges in question. The court concluded “because it was not ‘possible to match the jury’s verdict of guilty with specific incidents presented in evidence’ without a special verdict sheet[,]” the single instruction on forcible sexual offense was plain error, justifying a new trial. Id. at 10, quoting Bates at 634.  

Moving to (2) the court noted that the State had no objection to remand for correcting the clerical errors. The court identified three errors, (i) defendant’s prior record level being identified as V instead of IV, (ii) the marking of box 12 of the sentencing sheet for committing an offense while on pretrial release, and (iii) not marking the box on the aggravating factors sheet noting that defendant entered a plea to the aggravating factor. The court remanded for correction of these errors.

Judge Thompson dissented in part by separate opinion, and would have found no error by the trial court when failing to provide a second instruction on forcible sexual offense. Id. at 14.