State v. Draughon, 2022-NCCOA-58, ___ N.C. App. ___ (Feb. 1, 2022)

In this Hoke County case, defendant Stanley Draughon was found guilty by a jury of assault with a deadly weapon with the intent to kill inflicting serious injury (AWDWIKISI) and conspiracy to commit AWDWIKISI, and defendant Phyllis Mull was found guilty of conspiracy to commit AWDWIKISI. The charges arose from an incident in which Draughon and an unidentified man beat a victim, McBryde, with an object and tased him, breaking several bones in his arms and legs, among other injuries. At trial, Draughon’s lawyer objected to the State’s questioning related to Draughon’s cell phone, which had been seized from the vehicle of the person who drove Draughon to the sheriff’s office to turn himself in. Evidence from the phone indicated that Draughon and Mull had exchanged many text messages and calls. Additional testimony indicated that Mull wound up in possession of a box cutter that McBryde typically carried and had used in self-defense when he was assaulted.

(1) On appeal, Draughon argued that the evidence related to his cell phone should have been suppressed. The Court of Appeals disagreed, concluding that Draughon’s lawyer made only a general objection to the evidence at trial without specifying that he was making a motion to suppress or requesting a voir dire, as required by G.S. 15A-977. As a result, the defendant waived appellate review of the issue.

(2) Defendant Draughon also challenged the trial court’s denial of his motion to dismiss the conspiracy to commit AWDWIKISI charge at the close of the State’s evidence and at the close of all evidence. The Court of Appeals disagreed, concluding that, viewed in the light most favorable to the State, there was sufficient evidence of each element of the conspiracy charge. The numerous calls and texts between Draughon and Mull reflected that they had a relationship, and the facts that Mull was standing behind Draughon when he assaulted McBryde and that Mull wound up with McBryde’s box cutter constituted substantial evidence that Draughon had conspired to assault McBryde. Defendant Mull likewise argued that the trial court erred by denying her motion to dismiss. Again, the Court of Appeals disagreed, citing evidence indicating that Mull had agreed to invite Draughon and the other assailant into her house so they could wait for McBryde to assault him. 

(3) Finally, the Court of Appeals concluded that Defendant Mull’s argument regarding the trial court’s denial of her motion for judgment notwithstanding the verdict was not preserved for appeal, because her trial lawyer did not state the basis for the motion. The Court went on to decline Mull’s request to invoke Rule 2 of the Rules of Appellate Procedure to consider the issue, reasoning that Mull’s not guilty verdict on her AWDWIKISI charge was neither contradictory to nor mutually exclusive with her conviction for conspiracy to commit AWDWIKISI, as the conspiracy was complete when there was a meeting of minds between the conspirators, without any requirement for an overt act.

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