State v. Houser, 239 N.C. App. 410 (Feb. 17, 2015)

In this felony child abuse case the trial court erred by failing to provide an adequate instruction on the especially heinous, atrocious, or cruel (EHAC) aggravating factor. Rather than adapting the EHAC pattern instruction used in capital cases or providing any “narrowing definitions” that are required for this aggravating factor, the trial court simply instructed the jury: “If you find from the evidence beyond a reasonable doubt that . . . the offense was especially heinous, atrocious, or cruel . . . then you will write yes in the space after the aggravating factor[] on the verdict sheet.” The court concluded: “The trial court failed to deliver the substance of the pattern jury instruction on EHAC approved by our Supreme Court, and in doing so, instructed the jury in a way that the United States Supreme Court has previously found to be unconstitutionally vague.” Having found that the trial court erred, the court went on to conclude that the error did not rise to the level of plain error.