State v. Voltz, ___ N.C. App. ___, 804 S.E.2d 760 (Aug. 15, 2017)

(1) The court rejected the defendant’s argument that the trial court erred by providing the jury with written jury instructions on the charge of felonious breaking or entering which conflicted and materially differed from the court’s earlier oral instructions. As a general rule, when there are conflicting instructions on a material point, a new trial is required. Here, the trial court’s initial oral instructions stated, in part, that the jury must find that, at the time of the breaking or entering, the defendant intended to commit the felony of assault. Subsequently, the trial court noted to counsel that he wanted to add the definition of “the felony of assault” in written instructions to be given to the jury. Both sides agreed to the trial court’s proposed language. The revised language stated that the felony of assault would be assault with a deadly weapon with intent to kill, inflicting serious bodily injury or an attempt to commit that crime. The court rejected the defendant’s argument that the oral and written instructions conflicted. Here, recognizing that the oral instructions may have been insufficient, the trial court provided the additional language simply to further define “the felony of assault.” The trial court may clarify its jury instructions. (2) Even assuming that the trial court erred in its jury instructions, the error did not rise to the level of plain error.