State v. McNeill, ___ N.C. ___, 813 S.E.2d 797 (Jun. 8, 2018)

In this capital case the court rejected the defendant’s argument that the trial court erred in the guilt phase by instructing the jury that it could find the defendant guilty of sexual offense if it found either vaginal or anal penetration where the State failed to present any evidence of anal penetration and it cannot be discerned from the record upon which theory or theories the jury relied in arriving at its verdict. The court also rejected the defendant’s related argument that the trial court erred in the sentencing phase by instructing the jury that it could find the (e)(5) aggravating circumstances that the capital felony was committed while the defendant was engaged in the commission of, or flight after committing, the act of sexual offense with a child. Noting that the trial judge should never give instructions to a jury which are not based upon facts presented by some reasonable view of the evidence, the court found that here there was sufficient evidence of anal penetration.