State v. Cornelius, 219 N.C.App. 329, 723 S.E.2d 783 (Mar. 6, 2012)

The trial court did not err by allowing offensive collateral estoppel to establish the underlying felony for the defendant's felony murder conviction. The defendant was charged with felony-murder and an underlying felony of burglary. At the first trial the jury found the defendant guilty of burglary but hung on felony murder. The trial court entered a PJC on the burglary and declared a mistrial as to felony murder. At the retrial, the trial judge instructed the jury with respect to felony murder that "because it has previously been determined beyond a reasonable doubt in a prior criminal proceeding that [the defendant] committed first degree burglary . . . . you should consider that this element [of felony murder (that defendant committed the felony of first degree burglary)] has been proven to you beyond a reasonable doubt." Citing State v. Dial, 122 N.C. App. 298 (1996), the trial court’s instruction was proper.