Smith's Criminal Case Compendium
Table of Contents
State v. Boyett, 229 N.C. App. 576 (Sept. 17, 2013)
On remand by the NC Supreme Court for reconsideration in light of State v. Carter, 366 N.C. 496 (2013) (no plain error occurred in a child sexual offense case when the trial court failed to instruct on attempted sexual offense even though the evidence of penetration was conflicting), the court held that no plain error occurred when the trial court failed to instruct the jury on attempted second-degree rape and attempted incest when the evidence of penetration was conflicting. As in Carter, the defendant failed to show that the jury would have disregarded any portions of the victim’s testimony stating that penetration occurred in favor of instances in which she said it did not occur. Thus, the defendant failed to show a “probable impact” on the verdict.